1) Applicability.
These Standard Terms and Conditions (“TOC”) shall govern and apply to all products and services furnished by Trek10, Inc. (“Trek10”) to you (“Customer”) pursuant to (i) the terms of any written request by Customer that is accepted by Trek10, or (ii) any master services agreement, service level agreement, statement of work, proposal, quote, purchase order or other written agreement (“Agreement”) between Trek10 and Customer for the provision of products or services. These Standard Terms and Conditions shall supplement and be deemed incorporated into each Agreement and, in the event of any conflict or inconsistency between these Standard Terms and Conditions and any Agreement, these Standard Terms and Conditions shall govern unless such Agreement expressly states an intent to the contrary.
2) Services.
All systems design, build, support, maintenance, and other services performed for or provided to the Customer by Trek10 or its agents or representatives under any Agreement are referred to as the “Services”.
3) Concerning Software.
Trek10 will provide the Services using Background Materials and one or a combination of original and custom programming techniques (“Trek10 Software”); methods, components; generic routines and subroutines, web services, generic modules and sub-modules, generic libraries, generic quality processes and generic testing procedures used in connection with or incorporated into the Services and code previously developed by Trek10 (“Generic and Pre-existing Software”) and third party software which Trek10 is authorized to provide (“Third Party Software”). “Background Materials” shall mean, without limitation: any know-how, idea, concept, technique, process, program, tool, or end-user interface, including the architecture, structure, sequence, software, firmware, script, interface, and/or programming code used or developed by or for Trek10. Trek10 is and shall remain the owner of the Background Materials and Generic and Pre-existing Software, and all patent, copyright, trade secret, trademark and other intellectual property rights therein. Trek10 hereby grants to Customer a royalty-free, non-exclusive and non-transferable license (the “License”) to use the Background Materials and Generic and Pre-existing Software.
4) AWS Services.
In order to access and use certain Services which are made available by Trek10 and provided by Amazon Web Services, Inc. (“AWS” and the “AWS Authorized Services”), you are required tocomply with all of the terms and conditions set forth in your service agreement with AWS, as the same may be amended from time to time. Notwithstanding any other provision of these Terms and Conditions, you acknowledge and agree that Trek10 shall not be responsible or liable for any acts or omissions of AWS, including without limitation any restriction, limitation or termination by AWS of your rights to access and use the Authorized Services.
5) AWS Resold.
Notwithstanding any terms and conditions set forth in Trek10’s Standard Terms and Conditions, any Agreement between or among Trek10, Customer and AWS, and / or any applicable terms and conditions of AWS related to Customer’s use of its products and services, Customer acknowledges and agrees that Customer is solely responsible for any and all amounts due and owing for Customer’s use of AWS products and services, including without limitation Customer’s AWS spend and any balance due and owing AWS by Customer for Customer’s use of AWS products and services prior to the effective date of this Agreement. Trek10 does not assume or accept any responsibility or liability for amounts due and owing for Customer’s use of AWS products and services. Customer agrees to indemnify, defend and hold harmless Trek10 from and against any and all claims, actions, damages, liabilities, costs, expenses (including attorney fees, court costs and amounts paid in settlement), penalties, interest, fines or other amounts incurred by Trek10 as a result of Customer’s failure to pay timely and fully all amounts due and owing for Customer’s use of AWS products and services, including without limitation reimbursement of any amounts paid by Trek10 to AWS. If Customer fails to timely pay in full any invoice rendered by Trek10 in accordance with the payment terms set forth herein, Customer acknowledges and agrees that Trek10 may terminate immediately Customer’s access to Trek10 Services, regardless of any other Agreement between or among Customer, Trek10 and / or AWS, and Trek10 shall have no further obligation to Customer nor shall Trek10 have any liability to Customer for any damages Customer may suffer or incur as a result of termination of such access.
6) Schedule.
Trek10 will use commercially reasonable efforts to perform Services provide Services in accordance with the schedule set forth in the applicable Agreement. Trek10 shall not be responsible for delays which are beyond its control or which result from the delay or fault of Customer or any third party.
7) Cooperation.
Customer and Trek10 agree that the successful completion of Services requires their full and mutual good faith cooperation. Without limitation, Customer understands that Trek10 will rely on the information furnished and to be furnished by Customer concerning its needs, existing resources and systems, and Customer agrees to make available to Trek10 access to Customer’s systems and files, and the cooperation of Customer’s personnel, as Trek10 may reasonably request in order to provide Services. The parties agree to work together in good faith if unforeseen circumstances or unanticipated developments occur during the pendency of any project, which unforeseen circumstances or unanticipated developments may result in a modification of scope, scheduling, pricing or acceptance criteria.
8) Payment.
Customer shall pay Trek10 in such amounts and at such times as set forth in the applicable Agreement. All invoices from Trek10 must be paid within ten (10) days of the applicable invoice date. If Customer fails to pay any invoice when due, Trek10 may restrict, suspend, limit or terminate Customer’s use of Trek10’s Services, including without limitation the AWS Authorized Services, immediately upon notice to Customer. Any invoice not timely paid shall bear late charges from the date of the invoice 1.5% per month of the overdue amount Customer shall pay (and indemnify Trek10 against any additional taxes, fees, fines, penalties, interest or other amounts that may become due and payable in the event of Customer’s non-payment of) all sales, use, transfer and other taxes, whether federal, state or local, however designated, which are levied or imposed by reason of the transactions under these Standard Terms and Conditions, except for income taxes on Trek10’s profits. Customer shall reimburse Trek10 for its attorney’s fees and other costs and expenses incurred to collect any past due amounts. Trek10 shall apply all payments received first against any service charges, expenses (including attorney’s fees), late fees and interest charges, then to the principal amounts due starting with the oldest invoice(s). Trek10 may terminate any previously granted License to the Customer upon Customer’s failure to pay any invoice when due, without further notice to the Customer. No delay on the part of Trek10 in exercising any of its rights upon the termination of the License shall constitute a waiver thereof.
9) Termination.
Trek10 reserves the right to, and Customer agrees that Trek10 may, cancel any Agreement and terminate any Services immediately, and without prior notice, in the event that Customer fails to fulfill any material obligation contained in these Standard Terms and Conditions or in any other Agreement. Trek10 shall retain the right to recover all accrued charges due and owing by Customer to Trek10 through the effective date of termination, and Customer agrees that it waives any right it may have against Trek10 to offset fees payable by Customer to Trek10.
10) Warranties; Disclaimers; Limitation of Liability.
a) Trek10 represents and warrants that: (a) it has full corporate right, power, and authority to enter into this TOC; (b) the execution of this TOC by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a Party or by which it is bound; (c) when executed and delivered, this TOC will constitute the legal, valid, and binding obligation of Trek10, in accordance with its terms; and (d) it shall provide the Services in a professional manner. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, TREK10 DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
b) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOST REVENUE OR LOST PROFITS), EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, WHETHER UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WILL BE LIMITED TO THE AGGREGATE AMOUNT OF FEES PAYABLE UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM.
c) Any and all warranties, if any, contained in these Standard Terms and Conditions or in any Agreement shall terminate and become null and avoid if any unauthorized modifications to the Software are made by any party other than Trek10, or if the Software is used other than in accordance with any specifications or documentation provided by Trek10.
11) Confidentiality.
a) “Confidential Information” means any nonpublic information (written, oral, or electronic) disclosed by one Party to the other Party and shall be deemed to include the following information of the respective Parties, without limitation: (a) the terms and conditions of this Agreement; (b) e-mail addresses, customer lists, the names of customer contacts, Client data, business plans, technical data, product ideas, personnel, contracts, and financial information; (c) patents, trade secrets, techniques, processes, know-how, business methodologies, schematics, employee suggestions, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements; (d) information about costs, profits, markets, and sales; (e) plans for future development and new product concepts; (f) all documents, books, papers, drawings, models, sketches, and other data of any kind and description, including electronic data recorded or retrieved by any means, that have been or will be disclosed, as well as written or oral instructions or comments; or (g) any data or information stored in the solution.
b) Each Party agrees not to use, disclose, sell, license, publish, reproduce, or otherwise make available the Confidential Information of the other Party to any third party, and further agrees not to use the Confidential Information of the other Party except and only to the extent necessary to perform their respective obligations under this Agreement. Each Party agrees to secure and protect the other Party’s Confidential Information in a manner consistent with the maintenance of such Party’s own confidential and proprietary rights in the information (and in any event reasonable measures) and to take appropriate action by instruction or agreement with its employees, consultants, affiliates, or other agents who are permitted access to the other Party’s Confidential Information to satisfy its obligations under this Section. The foregoing obligations of confidentiality shall terminate three (3) years after the termination of this Agreement.
c) The obligation to treat information as Confidential Information shall not apply to information which: (a) is publicly available through no action of the receiving Party; (b) was rightfully in the receiving Party’s possession on a non-confidential basis independent of its relationship with the disclosing Party prior to the first disclosure by the disclosing Party to the receiving Party as evidenced by the receiving Party’s then-existing written records; (c) has been or is developed by or becomes known to the receiving Party without access to any of the disclosing Party’s Confidential Information and outside the scope of any agreement with disclosing Party with the receiving Party having the burden of proof to demonstrate independent creation; or (d) has been obtained rightfully from third parties not bound by an obligation of confidentiality.
d) These Standard Terms and Conditions are deemed to incorporate and shall be subject to, the terms and conditions of any separate confidentiality and non-disclosure agreement entered into by and between or among Trek10 and Customer. In the event of any conflict or inconsistency between such separate confidentiality and non-disclosure agreement and these Standard Terms and Conditions, the terms and conditions of the separate confidentiality and non-disclosure agreement shall govern.
12) Data Privacy.
a) Customer acknowledges and agrees that, during the course of its provision of Services, Trek10 may have access or be privy to certain private or confidential information that is protected by various federal, state and/or local laws (“Privacy Laws”), which may require that Customer provide notice to and/or receive express authorization, consent or permission from, in writing or otherwise, those individuals to whom the information pertains (“Protected Individuals”). Customer acknowledges and agrees, and represents and warrants, that it will obtain all notices, consents, authorizations and permission from each and all Protected Individuals, as required by applicable Privacy Laws and shall provide full and true copies of such documentation to Trek10 upon its request.
b) As further consideration for Trek10’s provision of Services, Customer agrees to indemnify, defend and hold harmless Trek10, its affiliates, and their respective officers, shareholders, directors, employees, representatives and agents (collectively, “Trek10 Indemnified Parties”), from and against any and all third party claims, demands, proceedings, suits and actions, including any related liabilities, obligations, losses, damages, fines, judgments, settlements, charges, costs and expenses (including attorneys’ and accountants’ fees and disbursements) (“Claims”), incurred by, borne by or asserted against any of the Trek10 Indemnified Parties to the extent such Claims relate to, arise out of or result from the Customer’s failure to comply with all applicable Privacy Laws, including without limitation Customer’s failure to obtain any and all required notices, consents, authorizations or permission from any Protected Individuals.
13) Nonsolicitation.
Customer recognizes that the employees and independent contractors of Trek10, and such persons’ loyalty and service to Trek10, constitute a valuable asset of Trek10. Accordingly, Customer agrees not to make any offer of employment to, nor to employ or enter into a consulting relationship with, or otherwise retain, any such person whom or which provided services to Customer on behalf of Trek10, within two (2) years of the last date on which such services were provided. If Customer breaches this Section 13, Customer shall pay to Trek10, as liquidated damages and not as a penalty, an amount equal to the greater of (i) two (2) times the aggregate compensation paid to such party by Trek10 during the twelve (12) month period immediately preceding the breach, and (ii) two (2) times the annual compensation offered to such party by Customer (the “Liquidated Damages”). Customer acknowledges and agrees that the harm caused by Customer’s breach of this Section 13 would be impossible or very difficult to accurately estimate as of the effective date of any such breach, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from Customer’s breach. As between Customer and Trek10, Customer’s payment of the Liquidated Damages is Customer’s sole liability and entire obligation and Trek10’s exclusive remedy for any breach by Customer of this Section 13.
14) Indemnity.
a) Trek10 will indemnify, defend and hold harmless Customer from and against any third party action brought against Customer based upon a claim that the Background Materials and Generic and Pre-existing Software, as provided by Trek10 to Customer under the applicable Agreement and used within the scope of such Agreement and these Standard Terms and Conditions, infringes any patent or copyright of such third party; provided that (i) Customer promptly notifies Trek10 in writing of the third party claim, (ii) Customer grants Trek10 sole control of the defense and settlement of the claim, and (iii) Customer provides Trek10 with all assistance, information and authority required for the defense and settlement of the claim.
b) If Customer’s use of any Background Materials and Generic and Pre-existing Software is, or in Trek10’s opinion is likely to be, enjoined due to the type of infringement specified in the preceding paragraph, Trek10 may, at its sole option and expense, (i) procure for Customer the right to continue using such Background Materials and Generic and Pre-existing Software, (ii) replace or modify such Background Materials and Generic and Pre-existing Software so that it is non-infringing, or (iii) if options (i) and (ii) cannot be accomplished despite Trek10’s reasonable efforts, then Trek10 may terminate Customer’s rights and Trek10’s obligations with respect to such Background Materials and Generic and Pre-existing Software and refund to Customer any prepaid fees for such Background Materials and Generic and Preexisting Software.
c) Notwithstanding the foregoing, Trek10 will have no liability for infringement claims of any kind arising from (i) any impermissible use of the Software, (ii) alteration or modification of the Software other than by Trek10; (iii) use of the Software in combination with third-party software or hardware other than as specified by Trek10, if a claim would not have occurred but for such combination; (iv) failure to use updated or modified versions of the Software provided by Trek10; or (v) Trek10’s compliance with designs or specifications provided by Customer.
d) THE PROVISIONS OF THIS SECTION ENTITLED “ INDEMNITY” SET FORTH TREK10’S SOLE AND EXCLUSIVE OBLIGATIONS AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO ACTUAL OR ALLEGED THIRD PARTY CLAIMS INCLUDING INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
e) Customer will indemnify, defend and hold harmless Trek10, its affiliates and their respective officers, directors, shareholders, employees, representatives and agents from and against any third party action brought against Trek10 based upon a claim related to Customer’s violation of any law or that content, designs or information provided by Customer to Trek10 infringes any intellectual property rights of such third party; provided that (i) Trek10 promptly notifies Customer in writing of the third party claim, (ii) Trek10 grants Customer sole control of the defense and settlement of the claim, and (iii) Trek10 provides Customer with all assistance, information and authority required for the defense and settlement of the claim.
15) Delays or Defaults.
Trek10 shall not be liable for delays or defaults in furnishing goods or services hereunder, if such delays or defaults on the part of Trek10 are due to any cause, event or circumstance beyond Trek10’s reasonable control, including without limitation as a result of Acts of God or of a public enemy, acts of the United States or any state or political subdivision thereof, fires, severe weather, floods, earthquakes, natural disasters, explosions or other catastrophes, embargoes, epidemics or quarantine restrictions, shortage of goods, labor strikes, slowdowns, differences with workmen or labor stoppages of any kind, delays of supplier or delay of transportation for any reason, breakdown or failure of machinery or equipment, or Customer’s delay in reporting problems or furnishing information or materials. Acceptance of delivery of goods or services shall constitute a waiver and release of Trek10 by Customer for any claim for damages, setoff, discount or other liability on account of delay.
16) Independent Parties.
This Agreement is by and between independent parties. Nothing in this Agreement shall be construed or interpreted to give rise to an agency, partnership, franchise, employment, or joint venture.
17) General.
a) Any notices or communications to be delivered to Trek10 must be in writing and delivered to Trek10’s South Bend office. Any notices or communications to be delivered to Customer will be delivered to the address set forth on the applicable Agreement or as otherwise provided by Customer. All notices shall be deemed effective upon receipt by the recipient.
b) These Standard Terms and Conditions, together with the applicable Agreement, constitute the entire agreement between Trek10 and Customer regarding the services and/or products described in such Agreement. Customer may not assign its rights and obligations under an Agreement without the prior written consent of Trek10 and any attempted assignment without such consent shall be null and void.
c) The failure or delay by Trek10 to exercise or enforce any right or provision of these Standard Terms and Conditions shall not constitute a waiver of such right or provision. Any provision of these Standard Terms and Conditions that is invalid or unenforceable shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof.
d) These Standard Terms and Conditions shall be interpreted, construed, governed by and enforced in accordance with the laws of the State of Indiana without giving effect to the conflicts of law principles thereof. Any dispute, controversy or claim arising out of or relating to these Standard Terms and Conditions shall be brought exclusively in St. Joseph County, Indiana and Customer hereby agrees to submit to the jurisdiction of such courts. The prevailing party in any such action shall be entitled to reimbursement by the other party for any and all legal costs, including without limitation attorneys’ fees, reasonably incurred by the prevailing party in enforcing its rights under these Standard Terms and Conditions. All rights and remedies of the parties herein are in addition to, and shall not exclude, any rights or remedies that either party may have under applicable law.
