Master Service Agreement

1.  SERVICES

1.1.       Services. TPG shall provide Client certain consulting services (the “Services”), as specified in Statement(s) of Work signed by the duly authorized representatives of both parties that sets forth and describes Services to be provided hereunder, the fees to be paid, delivery schedules, timelines, specifications and any other terms agreed upon by the parties (each, a “SOW”).  All changes to an SOW must be approved by both parties in writing.

1.2.       Work Product.  Except for TPG Technology (as defined below) which shall continue to be owned by TPG, any Work Product developed or derived from the performance of any Services hereunder shall be the sole property of Client upon Client’s payment in full of all fees hereunder.  TPG retains ownership of all information, software and other property owned by it prior to this Agreement or which it develops independently of this Agreement (the “TPG Technology”).  “Work Product” shall mean any work product, deliverables, programs, interfaces, modifications, configurations, reports, analyses or documentation developed or delivered in the performance of Services.  TPG may utilize any and all methods, computer software, know-how or techniques related to programming and processing of data, developed by it while providing the Services. To the extent that TPG incorporates any TPG Technology into any Work Product, then TPG hereby grants Client a royalty-free, non-exclusive, non-transferable license to use such TPG Technology delivered to Client solely as necessary for and in conjunction with Licensee’s use of the Work Product.

1.3.       Staffing. TPG shall have sole discretion in staffing the Services and may assign the performance of any portion of the Services to any subcontractor; provided that TPG shall be responsible for the performance of any such subcontractor.

2. FEES; PAYMENT TERMS

Client shall pay TPG the fees, charges and other amounts specified in the SOW (if the payment schedule of the fees is not specified in the SOW then such fees shall be due and payable within thirty (30) days of the date of invoice). In addition to paying the applicable fees, Client shall also pay all reasonable travel and out-of-pocket expenses incurred by TPG in connection with any Services rendered.

Overdue balances are subject to a service charge equal to the lesser of 1.5% per month or the maximum legal interest rate allowed by law.  Client shall be responsible for taxes levied on any transaction under this Agreement, including all federal, state, and local taxes, levies and assessments, excluding any tax based on TPG’s income.

3. CONFIDENTIALITY

3.1.       Confidential Information.  During the term of this Agreement, each party will regard any information provided to it by the other party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing party’s business and the industry in which it operates, is of a confidential or proprietary nature. A party will not disclose the other party’s Confidential Information to any third party without the prior written consent of the other party, nor make use of any of the other party’s Confidential Information except in its performance under this Agreement.

Each party accepts responsibility for the actions of its agents or employees and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. The parties expressly agree that the terms and pricing of this Agreement are the Confidential Information of TPG.

A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.

3.2.       Exclusions.  Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving party.

The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.

4. LIMITED WARRANTY

4.1.       Warranty and Remedy.  TPG warrants that Services will be provided with reasonable skill and care conforming to generally accepted industry standards. Client must report any deficiency in Services to TPG in writing within fifteen (15) days of completion of such Services.

For any breach of the above warranty, TPG will, at its option and at no cost to Client, provide remedial services necessary to enable the Services to conform to the warranty or, if such remedial services are unsuccessful, refund amounts paid solely in respect of the defective Services.  Client will provide TPG with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects.  The remedies set out in this subsection are Client’s sole remedies for breach of the above warranty.

4.2.       No Other Warranty. The above warranty is exclusive and in lieu of all other warranties express, implied, or statutory, including, but not limited to, the implied warranties of merchantability, noninfringement, title, quality, or fitness for a particular purpose.

5. LIMITATION OF LIABILITY.

Except as may arise out of either party’s breach of Section 3, neither party will be liable to the other or any third party for loss of profits, or special, indirect, incidental, consequential or exemplary damages, including costs, in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages.

Except as may arise out of TPG’s breach of Section 3, the total liability of TPG to Client for any and all claims and damages under this Agreement, whether arising by statute, contract tort or otherwise, will not exceed the amounts paid by (and not otherwise refunded to) Client to TPG under any SOW for the Services which form the subject of the claim. The provisions of this Agreement allocate risks between the parties.

6. TERM

Subject to earlier termination as provided herein, this Agreement shall have an initial term of one (1) year beginning upon the Effective Date and shall automatically renew for additional periods of one (1) year at the expiration of the initial term or any renewal term, unless a party hereto provides written notification of termination of this Agreement to the other party not later than thirty (30) days immediately preceding the date on which this Agreement would otherwise renew.

Either party may terminate this Agreement or any SOW (i) immediately in the event of a material breach of this Agreement or any such SOW by the other party that is not cured within thirty (30) days of written notice thereof from the other party, or (ii) immediately if the other party ceases doing business is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing.  The parties’ rights and obligations under Sections 3, 4, 5, 6 and 7 will survive termination or expiration of this Agreement.

 

7. GENERAL PROVISIONS

7.1.       Entire Agreement and Controlling Documents.  This Agreement, including any SOWs, contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the parties relating thereto and is binding upon the parties and their permitted successors and assigns.  Boilerplate terms and conditions contained in any purchase order issued by Client shall be of no force or effect, even if the order is accepted by TPG.  Any conflict between the terms and conditions set forth in this Agreement and any SOW shall be resolved in favor of this Agreement unless such SOW expressly references the conflicting provision that it is intended to control and states that it is to control.

7.2.       Assignment.  This Agreement shall be binding upon and for the benefit of TPG, Client and their permitted successors and assigns.  Either party may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets.  Except as expressly stated in this Agreement, neither party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent will be void.

7.3.       Governing Law; Jurisdiction.  This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia without regard to its conflict of law provisions. Each party consents to, and agrees that each party is subject to, the exclusive jurisdiction of the state and federal courts of the State of Georgia with respect to any actions for enforcement of or breach of this Agreement.

7.4.       Headings; Counterparts.  The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which shall be deemed to be an original instrument. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile) shall be considered an original.

7.5.       Relationship of the Parties.  TPG and Client are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever.  Neither party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other party’s name or on its behalf.

7.6.       Force Majeure.  Except for the obligation to make payments, nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.

7.7.       Delays.  Client acknowledges and agrees that if any phase of TPG’s scheduled Services as set forth in an SOW is delayed by more than 30 days,  by any act or omission of Client, including but not limited to Client’s failure to make payments as set forth in Section 2, the scheduled completion of the Services or individual phases of the Services as set forth in the SOW will be delayed.  TPG will notify client in writing about the delay and will cease all work activity related to the SOW.   Client needs to notify TPG project manager in writing when it is ready to resume services.

7.8.       Waiver and Severability.  Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein.  The failure of either party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.

7.9            Non-solicitation of employees.  During the term of this Agreement, and for a period of twelve (12) months thereafter, each party agrees not to, directly or indirectly, solicit, recruit or employ any employee of the other party without the prior written consent of the other party.  Each party acknowledges that its failure to honor this non-solicitation provision could result in the other party suffering irreparable harm.  As the exact amount of such damages cannot be readily quantified, upon a breach of this non-solicitation provision, the breaching party shall pay to the other party, as liquidated damages (and not a penalty), the sum of $50,000 for each such breach.  Neither the existence of that liquidated-damages provision nor payment of liquidated damages for any such breach in any way limits the breached party’s additional right to seek injunctive relief or any other equitable remedies respecting any such breach or continuing breach.

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