Standard Terms and Conditions

1. 1. Applicability.  Any accepted proposal, purchase order or engagement letter which references the “Standard Terms and Conditions of Emerging Tel Corp. or to which this Appendix A is attached, along with this Appendix A and all other Appendices and Exhibits attached thereto, and all Statements of Work entered into pursuant thereto are the “Agreement.” Any Agreement by and between Emerging Tel Corp. (the “Vendor”) and any third party referenced therein (the “Client”) shall be subject to and deemed to include these Standard Terms and Conditions.  Each of Client and Vendor are sometimes individually referred to as a “Party,” and collectively referred to as the “Parties.”  The Vendor hereby objects to and rejects any provision contained in any Client document, exhibit, purchase order or the like which contradicts or otherwise purports to modify any provision contained herein. Client’s acceptance of any Services from Vendor shall be deemed Client’s acknowledgment and acceptance of each and every provision set forth herein.  

1. 2. Services. Under this Agreement for the provision of services from Vendor to Client, the services expressly included in the price of the accepted proposal or accepted engagement letter are referred to as the “Contract Services.” Any services Client desires to have Vendor perform that are not included in the Contract Services, are referred to as the “Professional Services” if the rate for such services are set forth in the accepted proposal or accepted engagement letter, and referred to as the “Optional Services” if the rates are not set forth in the accepted proposal or accepted engagement letter, each as may be set forth more fully in a Statement of Work to this Agreement. The Contract Services, Professional Services, and Optional Services are referred to collectively as the “Services.” Performance of Professional Services or Optional Services shall be expressly subject to the Parties’ written agreement on the scope of performance, type of such services to perform, and (if applicable) the rate for such Optional Services, which may be placed in a subsequent signed writing to be performed on the terms of the Agreement (a “Statement of Work”), which shall become part of the Agreement, provided that such Optional Services or Professional Services shall not become Contract Services by doing so. It is understood and agreed that Services may include advice and recommendations; but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, Client. Without limitation of the generality of the foregoing, any action or omission undertaken by Vendor under this Agreement at Client’s direction shall be the sole responsibility of Client. 

1. 3. Payment Terms. Client agrees to pay Vendor for the Services in accordance with the pricing and payment schedule submitted and agreed upon in the Agreement. Additionally, Client agrees to pay Vendor for any hardware that fails (and which is not covered by warranty) which will be billed at current retail price.  Payment for the services shall be invoiced to the Client as set forth in the Agreement, which may provide that invoices shall be issued as the Services are performed or that any or all of the payments for Services shall be paid in advance.  Written invoices for Services (“Invoices”) shall be sent to the Client at the address listed in the Agreement, or such other address, facsimile number, or e-mail address as Client sends to Vendor in a signed writing.  Client is responsibility for notifying Vendor in writing of any subsequent changes to its contact information in writing.  Unless otherwise specifically provided by the terms of an Invoice, payment of all Invoices shall be due within thirty (30) days of the date of the Invoice on “net 30” terms.  Invoices may be in electronic, fax or original hardcopy form, at Vendor’s sole discretion.  Payment for Invoices shall be sent to the Vendor at the address specified on the Invoice.  Client is responsible for all applicable sales, use or other taxes imposed on the recipient of the Services.  In accordance with applicable law, Vendor shall bill Client for and collect all applicable local, state, federal, or international sales, use, excise, export, or any other taxes, fees or charges imposed by governmental authorities arising in connection with any and all Services provided under this Agreement or contemplated by this Agreement.  All amounts payable in respect of taxes shall be due and payable by Client on the due date of the fee or charge giving rise thereto.  All invoices not received within thirty days from the date of the Invoice (or such other due date specifically stated on the Invoice) are subject to a two percent (2%) finance charge per month, or the maximum allowable by law, whichever is lesser.  Additionally, Client shall be responsible for any interest or penalties associated with any unpaid or late taxes invoiced to Client. In the event the Client fails to pay any outstanding delinquent Invoice balance within seven (7) days of the date of Vendor’s written demand to Client for payment thereof (such demand, a “Late Payment Notice”), the provision of Services (including without limitation, Contract Services) to the Client may be discontinued, withheld or interrupted by the Vendor until a full payment on account has been made, including all applicable taxes and late fees.  A failure to pay Invoices when due constitutes a material breach of this agreement by Client.  Vendor may continue to provide Services at its sole discretion, and the performance of such Services shall be done without waiver or prejudice of any of its rights or remedies.  Without limiting the preceding sentence, upon Client’s failure to pay in full any delinquent Invoices within seven (7) days of the date of Vendor’s written demand for payment thereof, Vendor may also, at its sole option and discretion, revise payment terms upon written notice to Client.  Questions on account billing or balances should be mailed to Vendor (to the attention of “Accounts Receivable”) at Vendor’s address set forth in the Agreement, or may be E-mailed to Vendor’s Accounts Receivable Department at accounting@emergingtel.com.   

2. 4. Term; Termination.  Unless terminated sooner in accordance with its terms, this Agreement shall commence on the date it is signed by both Parties hereto and returned fully-executed to Vendor and shall continue an initial three (3) year term.  This Agreement shall thereafter automatically renew for additional three (3) year terms unless either party provides written notice to the other not later than sixty (60) days prior to the expiration of the then-current term of its intention to terminate this Agreement at the expiration of the then-current term.  Renewal of the Agreement automatically renews all Appendices, Exhibits, and Statements of Work to the Agreement (unless such document specifically requires that such document terminate sooner), including this Appendix A. The initial and any and all renewal terms of this Agreement are collectively referred to as the “Term” of this Agreement.

1. a. This Agreement may be terminated by either Party upon five (5) days’ written notice if the other Party: 

1. i. Fails to fulfill in any material respect its non-payment related obligations under this Agreement and does not cure such failure within thirty (30) days’ of receipt of such written notice of such failure.

2. ii. Breaches any material non-payment related term or condition of this Agreement and fails to remedy such breach within thirty (30) days’ of receipt of such written notice of such breach.

3. iii. (A) Terminates or suspends its business operations, unless it is succeeded by a permitted assignee under this Agreement; (B) becomes the subject of any voluntary or involuntary insolvency or bankruptcy proceeding, (C) becomes insolvent; or (D) if a substantial part of the other Party’s property becomes subject to any levy, seizure, assignment, application, or sale by any creditor or governmental agency.

1. b. Vendor may, on or after the twenty-third (23rd) day following its issuance of a Late Payment Notice and the failure of the Client to pay in full the subject Invoice(s) referenced therein, immediately terminate this Agreement upon written notice to Client.  Such termination shall not serve to prejudice any right of, other remedies available to, Vendor for breach of this Agreement. 

1. c. Upon termination of this Agreement and provided that all payment obligations of Client to Vendor set forth in the Agreement have been paid in full, upon the written request of Client, Vendor will assist Client in the orderly termination of Services, including commercially reasonable cooperation to timely transfer of the services to another designated provider.  Client agrees to pay Vendor all actual costs of rendering such assistance.

1. d. In the event of termination of the Agreement prior to the expiration of the then-current Term: (i) by Client for any reason other than as permitted by Section 4(a) above; or (ii) by Vendor as permitted by Section 4(a) or 4(b), Client shall pay a termination fee equal to the sum of all remaining payments set forth in the Agreement for the remainder of the then-current initial or renewal Term, including but not limited to (A) any non-cancelable fees payable by Vendor to third parties in connection with, or related to, the Services to be provided to Client for the remainder of such Term; and (B) any and all reimbursable expenses which have been earned or incurred by Vendor prior to the date of such termination (such termination fee, the ”Termination Fee”).  The Termination Fee shall be due and payable within five (5) business days of the date of Vendor’s invoice for the Termination Fee.  Any termination Fee not paid by its due date shall incur a finance charge as set forth in Section 3 above.  

1. e. Notwithstanding the foregoing, failure of Vendor to fulfill a service level agreement (“SLA”) set forth in a separate Appendix to the Agreement, shall not be deemed a failure to fulfill obligations or breach of this Agreement.  Instead, failure of Vendor to fulfill a SLA shall instead entitle the Client to receive a credit equal to five percent (5%) of the monthly invoice for that month’s Services fees (excluding reimbursable expenses, taxes, interest, penalties, or costs; if that month has a Services fee payable in advance subject to Section 3, then instead it shall be the pro-rata monthly amount for the calendar month in which the failure occurs only, not the full Invoice amount) for the future purchase of Optional Services or Professional Services from Vendor.  Multiple failures within a month shall be treated as a single failure for that month for purposes of the five percent (5%) credit.  THE CREDIT DESCRIBED IN THIS SECTION 4(e) IS CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY VENDOR TO FULFILL A SERVICE LEVEL AGREEMENT (SLA). 

1. 5. Ownership.

1. a) Vendor Technology. Vendor has created, acquired, or otherwise has rights in, and may, in connection with the performance of services hereunder employ, provide, modify, create, acquire or otherwise obtain rights in, various concepts, ideas, methods, methodologies, procedures, processes, know-how, and techniques, models (including without limitation, function, process, system and data models); templates; the generalized features of the structure, sequence and organization of software, user interfaces and screen designs; general purpose consulting and software tools, utilities and routines; and logic, coherence and methods of operation of systems (collectively, the “Vendor Technology”). Except as otherwise expressly set forth herein, Vendor (and, as applicable, its respective licensors) owns and shall continue to own all right, title and interest in and to all copyrights, patents, trademarks, or other intellectual property rights therein contained in all Vendor Technology from the time that it is conceived, made, developed, discovered, written, authored, invented, created, or first reduced to practice alone or jointly, including without limitation, all rights completed or work-in-progress, and all imagery, metadata, electronic or digital files. No right, title, or interest in Vendor Technology or any other intellectual property rights shall be transferred, licensed, or granted by reason of this Agreement or performance of Services unless expressly set forth herein.

1. b) Ownership of Deliverables. If this Agreement or any Statement of Work calls for the delivery of one or more Deliverables, each such Deliverable shall be deemed acceptable unless Vendor is notified by Client in writing within five (5) business days of Client’s receipt of Deliverables.  In the event of such notification, Client shall return Deliverables to Vendor and include a detailed description setting the reason(s) for not accepting the Deliverable with specificity. Upon receipt of a rejection notice, Vendor will exercise its commercially reasonable efforts correct any defects or non-conformities to the extent required so that the Deliverable satisfies the requirements as specified in the Agreement or applicable Statement of Work. Once the Deliverable has been accepted the Client will retain ownership of Deliverables, provided that all intellectual property rights of Vendor Technology shall remain with Vendor, including all right, title, and interest thereto, and any license afforded for the Client to use such Deliverables shall expire upon the end of the Agreement Term, unless otherwise expressly agreed to by the Parties in writing.

1. c) Ownership of Vendor Property. Without limitation of Paragraph 5(a), all equipment, hardware and software designated as Vendor equipment (for removal of doubt, any equipment, hardware, and software provided with the Services shall be Vendor equipment unless expressly stated otherwise in the Agreement) will remain the property of Vendor and shall be returned by Client promptly to Vendor no later than five (5) days of the termination or expiration of this Agreement.  Client is responsible for any damage to the hardware or software of Vendor incurred during the term of this Agreement, ordinary wear and tear excepted.

1. 6. Limitations of Technology. Client acknowledges that technologies are not universally compatible, and that there may be particular services or devices that Vendor may be unable to monitor, manage, or patch. Vendor agrees to inform the Client when such situation exists as soon as is practicable.  The Client agrees to use commercially reasonable efforts to correct such incompatibility at Client’s sole cost and expense but, in the event the situation is unable to be corrected by the Client using commercially reasonable efforts, the Client may cancel this Agreement and not be further liable to Vendor.

Patch definitions and antivirus definitions are distributed by their respective third-party software vendors, and as such, Vendor has no direct control over the effectiveness, or lack thereof, of the software being applied.  Vendor shall not be held responsible for interruptions in service due to patches or antivirus applications released by third-party software vendors.

Vendor is not responsible to correct problems from the provision of Services which are attributable to, in whole or in part, defects or inadequacies in Client’s existing hardware or software or their compatibility with the Services. Vendor is not responsible for the selection, reliability, suitability or connectivity of Client’s telecommunications infrastructure, systems or services for which Services are rendered or intended to be rendered, including Client’s Internet connectivity.

VENDOR DOES NOT WARRANT THAT THE SERVICES PERFORMED OR THAT THE VENDOR TECHNOLOGY USED IN THE PERFORMANCE OF SERVICES WILL MEET CLIENTS’S REQUIREMENTS, THAT THE SERVICES WILL OPERATE ERROR FREE, WITHOUT INTERRUPTION, OR IN COMBINATION WITH OTHER SERVICES, OR THAT ALL PROGRAM DEFECTS ARE CORRECTABLE.  

1. 7. Warranties, Representations, Covenants, and Disclaimers of Warranties. For the Term of this Agreement, the Parties represent, warrant, and covenant to the other Party as follows:

1. a) Vendor represents, warrants, and covenants to Client that the Services shall be performed in a professional and workmanlike manner in accordance with general industry standards, using its commercially reasonable efforts. If the Services do not conform to this warranty, Client’s sole and exclusive remedy shall be to provide written notice to Vendor within thirty (30) days of the day of the invoice for such Services, identifying the failure to conform to this warranty with specificity. Upon receipt of such notice, Vendor shall re-perform the Services or portion thereof that is non-compliant to bring it within the conformity to this warranty. 

1. b) Vendor represents, warrants, and covenants to Client that it holds or has properly licensed the right, title, and interest to the Vendor Technology, and that the Vendor Technology does not and shall not infringe upon the United States patents, trademarks, or copyrights of any third party. For removal of doubt, such warranty does not extend to any third party materials provided as part of the Services, which are expressly subject to their own respective warranties and as between Client and Vendor, are provided “AS-IS” and “WITH ALL FAULTS.” If the Vendor Technology does not conform to this warranty and a third party brings a claim or action against Client for infringement that is solely based on the Vendor Technology provided with the Services , Client’s sole and exclusive remedy shall be to provide Vendor with prompt notice of the such claim or action, after which such notice is received, Vendor shall, at its sole option: (i) procure a license from any third party claiming infringement; (ii) replace or modify the Services as appropriate to avoid any claim of infringement; or (iii) terminate this Agreement upon written notice to Client. 

1. c) EXCEPT AS EXPRESSLY SET FORTH IN PARAGRAPHS 7(A) OR (B), MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES OR DELIVERABLES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. 

1. d) Client represents, warrants, and covenants to Vendor that Client is validly organized or incorporated as the form of entity indicated in the Agreement under the laws of the State identified in the Agreement. Client represents, warrants, and covenants to Vendor that Client has full power and authority to execute and deliver this Agreement, which constitutes a legal, valid and binding agreement of such Party enforceable in accordance with its terms. 

1. e) Client represents, warrants, and covenants to Vendor that any terms which are agreed to electronically are made with full power and authority to execute and deliver this such electronic agreement which constitutes a legal, valid and binding agreement of such Party enforceable in accordance with its terms, and if further covenants that if any such electronic agreement is held unenforceable due to such electronic signature, agrees to execute a handwritten signature for such terms of service and waives all defenses otherwise available to it relating to its use of an electronic signature.

1. f) Client represents, warrants, and covenants to Vendor that it: (i) is fully aware of all laws, regulations, statutes, orders, ordinances and other legal or governmental requirements applicable to the provision, acceptance and use of the Services,  including without limitation those pertaining to export and privacy (“Laws”), (ii) that the Services and any Deliverables will be accepted and used in only accordance with, and not in violation of, any Laws; (iii) that Client shall have obtained all consents, permits and approvals required to comply with such Laws. 

1. g) Client warrants and covenants to Vendor to pay all fees, costs, taxes, interest, penalties and reimbursable expenses as set forth in the Agreement and to comply with all of the terms and conditions of the Agreement.

1. h) Client represents, warrants and covenants to Vendor that this Agreement does not and, for so long as this Agreement is in effect, shall not conflict with the duties and obligations under any other agreement to which the Client is a party.

1. i) Client represents, warrants, and covenants to the other Party that they are equal opportunity employers and do not discriminate in employment of persons or awarding of contracts or subcontracts because of a person’s race, sex, age, religion, national origin, veteran, or handicap status.

2. j) Client represents, warrants, and covenants that it shall not remove, modify, or obscure Vendor’s indications of its or any third party’s proprietary rights or similar notices that appear on any Deliverables or any materials provided in connection with Services. 

3. k) Client covenants that it shall not: (i) engage in any deceptive, misleading, or unethical practices or activities which could bring Vendor, the Services, Deliverables (if any) or the Vendor Technology into disrepute; or (ii) make representations, warranties or statements about the specifications, features or capabilities of the performance of the Services or Deliverables (if any) that are inconsistent with this Agreement.

4. l) If Client receives any claim or notice, or receives any indication that a claim or notice is likely to be brought, arising out of or relating to allegations that the Services, Vendor, or the Vendor Technology infringes upon the rights of any person or entity, Client warrants and covenants to promptly notify Vendor in writing of such claim or notice with specificity, including without limitation, any applicable supporting documentation. 

1. 8. Limitation on Damages. 

VENDOR, its partners, principals, consultants, and employees, SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFIT, LOSS OF BUSINESS, OR LOSS OF GOODWILL, EVEN IF VENDOR HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE OR LOSS, WHETHER IN CONTRACT, STATUTE, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE.

THE AGGREGATE LIABILITY OF Vendor, its partners, principals, consultants, and employees FOR any and ALL CLAIMS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE lesser of: (a) the SUM OF THE FEES PAYABLE TO Vendor for the services under this agreement; or (b) the applicable insurance coverage set forth in paragraph 10 hereof.

VENDOR SHALL NOT BE LIABLE IN RESPECT OF ANY DECISIONS MADE BY CLIENT AS A RESULT OF THE PERFORMANCE BY VENDOR OF ANY SERVICES HEREUNDER.

1. 9. Limitation on Actions. No action, regardless of form, arising under or relating to this Agreement, may be brought by either Party more than one (1) year after the cause of action has accrued, except: (a) any action by Vendor to protect its Confidential Information and Vendor Technology intellectual property rights, or (b) any action for non-payment of fees or expenses from Client hereunder, including without limitation, any taxes, interest, or penalties.

1. 10. Insurance. Vendor carries the following types of insurance:

2. a) Comprehensive General Liability, in an amount not less than $1 million per occurrence for claims arising out of bodily injury and property damage and an additional $2 million umbrella policy;

3. b) Errors and Omissions coverage in an amount of not less than $2 million per occurrence;

4. c) All-risk property coverage; and

5. d) Workers’ Compensation as mandated or allowed by the laws of the state in which the Services set forth in the Agreement are being performed, including $100,000 per person and $500,000 per occurrence.

1. 11. Cooperation. Client shall cooperate with Vendor in the performance by Vendor of its Services hereunder, including, without limitation, providing Vendor with reasonable facilities and timely access to data, information and personnel of Client. Client shall be responsible for the performance of its employees and agents and for the accuracy and completeness of all data and information provided to Vendor for purposes of the performance by Vendor of such services. Client shall cooperate with Vendor to secure any required or appropriate consents or approvals, creative briefs, concepts, proofs, and other operationally required process steps in a timely and prompt manner to meet milestones or deadlines. Client shall execute such further documents, and perform such further acts as may be reasonably necessary or appropriate for Vendor to perform such services in accordance with the terms of this Agreement.

1. 12. Indemnification. Client shall be liable for and shall indemnify, defend and hold Vendor and its affiliates, parents, partners, principals, consultant , and employees, and their respective successors and assigns (collectively, the “Vendor Indemnified Parties”), harmless from any and all claims, demands, losses, liabilities, damages, judgments, costs and expenses, including without limitation reasonable attorneys’ fees (“Losses”), incident to or arising directly or indirectly out of: (i) the breach by Client of any representation, warranty, covenant, obligation, or provision of this Agreement and the Appendices thereto, including without limitation, any licenses conferred in connection therewith; (ii) the actions or omissions of Client or its affiliates, and their respective employees, agents (including, without limitation, Losses related to  bodily injury, death or property damage) whether based upon contract, tort, failure to comply with Laws, or any statute, ordinance, rule or regulation; (iii) any action or omission taken or failed to be taken by Vendor at Client’s direction or instruction; (iv) any failure to pay fees, expenses, costs, taxes, interest, or penalties thereon and thereof; and (v) Client’s negligence, fraud, recklessness, or willful misconduct; provided, however, that Client shall not be obligated to indemnify the Vendor Indemnified Parties for Losses that arise solely and directly out of the grossly negligent acts or willful misconduct of Vendor. Within a reasonable time after the Vendor Indemnified Party receives notice of any claim or the commencement of any action to which indemnification under this Paragraph 12 applies, the Vendor Indemnified Party shall notify Client of such claims or action; provided, however, that the failure to so notify shall not relieve the Client of any obligation that it may have to indemnify the Vendor Indemnified Party unless such failure or delay has materially prejudiced Client’s ability to so indemnify and hold harmless the Vendor Indemnified Party. If any such claim or action is also brought against a Vendor Indemnified Party, the Vendor Indemnified Party may, at its option, elect to participate in the defense of said claim or action (or cause same to be defended) at its own expense; provided, however, that neither Party shall compromise or settle any such claim or action to which this indemnification applies without the prior written consent of the other Party.   

1. 13. Force Majeure. Neither Client nor Vendor shall be liable for any delays resulting from circumstances or causes beyond its reasonable control, including, without limitation, pandemic, fire or other casualty, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority.

1. 14. Independent Contractor. It is understood and agreed that each of the Parties hereto is an independent contractor and that neither Party is, nor shall be considered to be, an agent, distributor or representative of the other.  Neither Party shall act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.

1. 15. Non-Solicitation. The Client agrees not to hire or attempt to hire any Vendor employee, contractor, or former employee during the Term of this Agreement (including all renewals) and for a period of two (2) years following the expiration or termination of this Agreement, as full-time or part-time employee, contractor, or any other such position without the written consent of Vendor. Client understands and agrees that Vendor shall suffer such irreparable harm in such event that Client shall, if such breach should occur, immediately pay to Vendor an amount equal to the employee's annual compensation (including salary and expected bonuses) at the time of breach.

1. 16. Confidentiality. 

2. a) Definitions.

1. i. "Discloser" means either Party to this Agreement who discloses Confidential Information to the other Party. 

2. ii. "Recipient" means either Party to this Agreement who receives Confidential Information from the other Party. 

3. iii. "Confidential Information" means any and all information, regardless of the form and manner in which it is disclosed, which is disclosed by the Discloser to the Recipient during the term of this Agreement, excluding that which is listed in Paragraph 16(b). Confidential Information includes, but is not limited to: Discloser's product(s), processes, procedures, production units, manufactured goods; copyrightable and/or, patentable information; current and prospective customer names, lists and contacts; customer confidential information; employee and compensation information; accounts, forms and systems; manuals; technical information; supply and manufacturing sources and resources; contracts; price lists; financial information, data, records, analyses and reports; sales and market data of every kind and description; expense information; business and strategic plans, general and specific; existing and potential business opportunities; confidential reports; acquisitions, partnerships, strategic alliances and/or other business arrangements between a Party and a related or third party entity; and/or Trade Secrets and/or information referring to Trade Secrets; and all other related proprietary non-public information. The Vendor Technology and Services are Vendor’s Confidential Information.

4. iv. "Trade Secrets" means any scientific, technical or business information, design, process, procedure, formula or improvement that is unique to the owner, commercially valuable and whose confidentiality affords its owner a competitive advantage over its competitors.

1. b) Exclusions. 

Confidential Information shall not include any information that is (and can be proven by credible written evidence in Recipient’s possession): (i) was lawfully and without breach of any obligation of confidentiality in the Recipient’s possession prior to receipt thereof from Discloser; (ii) rightfully received by Recipient in good faith independently from a third party free from any obligation to keep such information confidential; (iii) is already in the public domain or becomes available to the public through no fault or breach of this Agreement by Recipient; (iv) independently developed by Recipient without the use of any of Discloser’s Confidential Information and without breach of this Agreement; or (v) is disclosed pursuant to a court order or other requirement of law or regulatory process, provided Recipient promptly notifies Discloser in writing of such court order or other requirement in order to give Discloser the opportunity to object to or oppose such disclosure, unless the Recipient is prohibited by law from doing so. Any disclosure of Confidential Information which is made under this Paragraph 16(b)(vi) shall be limited to the portion of the Confidential Information which is required to be disclosed by such order or requirement.

1. c) Recipient’s Obligations.   Recipient shall:

1. i. not disclose any Confidential Information to third parties, which obligation shall survive this Agreement for so long as such information remains Confidential Information.

2. ii. hold the Confidential Information in confidence with the same degree of care with which it protects its own confidential and proprietary information, or such greater standard as required by law, internal policies or professional standards, but in no event less than a reasonable standard of care;

3. iii. restrict disclosure of the Confidential Information solely to its employees, external advisors, and agents  on a “need to know basis” only; and to the extent such disclosure is not otherwise subject to a duty of confidentiality, only upon informing such individuals of the confidential nature of the information and being fully responsible for the compliance of all such individuals;

4. iv. only disclose the Confidential Information to third parties after receiving Discloser’s written approval of such disclosure, and in such instance, only after securing a written, enforceable non-disclosure agreement from such third parties under terms and conditions which shall be no less restrictive than the provisions stated in this Paragraph 16; 

5. v. not copy or otherwise duplicate Confidential Information or convert Confidential Information to another media, or knowingly allow anyone else to copy, otherwise duplicate or convert Confidential Information except as necessary to fulfill the purposes of this  Agreement.  Any and all copies shall bear the same notices or legends as the original, if any, including without limitation, regarding its confidential nature;

6. vi. upon expiration or earlier termination of this Agreement, promptly return to the Discloser, on request, all Confidential Information and/or at Discloser’s request,  certify to Discloser that it has destroyed all originals and/or copies of such Confidential Information, except for one archival copy to be retained solely for the purposes of monitoring compliance with this Agreement, provided that Client as Recipient shall not be permitted to keep an archival copy of any Confidential Information of Vendor unless expressly required by applicable laws and only for the purposes required by such applicable laws;

7. vii. not use Confidential Information in any manner other than as permitted by this Agreement and in furtherance of such Party’s duties, rights, and obligations hereunder and thereunder; and

8. viii. not reverse engineer, de-compile or otherwise disassemble any Confidential Information, or use Confidential Information to create derivative works therefrom. 

2. d) Rights and Remedies.

1. i. Recipient shall notify Discloser immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by Recipient, and will cooperate with Discloser in every reasonable way to assist Discloser in regaining possession of the Confidential Information and prevent its further unauthorized use or disclosure. 

2. ii. Recipient acknowledges that monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and that Discloser shall be entitled to seek such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction in addition to Discloser’s reasonable attorneys’ fees and any and all other remedies available at law or in equity for such breach or threatened breach.

3. iii. Recipient’s obligations with respect to Confidential Information shall survive this Agreement for as long as Discloser’s Confidential Information remains Confidential Information.

4. iv. All Confidential Information is and shall remain the property of Discloser or its respective rightful non-Party owner. 

5. v. By disclosing Confidential Information, Discloser does not grant any express or implied right or license to Recipient to Discloser's Confidential Information, including without limitation any intellectual property rights or patents, copyrights, trademarks, Trade Secrets or other information. 

6. vi. This Agreement and the disclosure of any Confidential Information pursuant to this Agreement imposes no obligation on Recipient or grants any right to Discloser to purchase, sell, license, transfer or otherwise dispose of any technology, services or products, except as expressly provided herein. No representations or warranties of any kind are given hereunder with respect to Confidential Information disclosed under this Agreement, except as expressly provided herein.   

1. 17. Site Access. The Client will be responsible for obtaining proper and adequate permission for Vendor to enter upon and operate within the lands and properties designated as the Client’s work area.

1. 18. Equipment & Facilities. The Client agrees that Vendor may utilize certain items of the Client’s equipment and may gain access to certain Client facilities.  The Client retains title and ownership in all of Client’s equipment owned by Client and utilized by Vendor, and must grant authority for Vendor to access the Client’s facility.  Facility access may be denied for any reason at any time, however if access to facilities is denied, Client understands that Vendor may be unable to perform their duties adequately and if such a situation should exist, Vendor will be held harmless subject to Paragraph 12. 

1. 19. Passwords.  Client acknowledges that Vendor must have access to systems and resources to perform its duties under this Agreement.  As such, Vendor must have access to any and all passwords and be granted authority to access all devices covered under this Agreement.

1. 20. Loaned/Rented Equipment. Client agrees that any equipment utilized by Vendor, in the execution of this or any service that is not explicitly purchased by Client shall remain the property of Vendor, and must be returned if requested.  Client further agrees to cease the use of any technology that remains the property of Vendor upon termination of this Agreement, including without limitation, Vendor Technology.

1. 21. Survival. The provisions of Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 12-30 hereof shall survive the expiration or termination of this agreement.

1. 22. Assignment. Except as provided below, neither Party may assign transfer or delegate any of the rights or obligations hereunder without the prior written consent of the other Party. Either Party may assign its rights or obligations hereunder to any affiliate or successor in interest to all or substantially all of its assets or business or the survivor of a merger involving such Party without the consent of the other Party provided that the assigning Party notifies the other Party of the occurrence of such an assignment and remains jointly liable with the assignee to perform its obligations hereunder. Notwithstanding the foregoing, Vendor shall have the unlimited ability to use contractors or subcontractors to assist or facilitate in the performance of its duties hereunder without notice to Client.

1. 23. Severability. In the event that any term or provision of this Agreement shall be held to be invalid, void or unenforceable, then the remainder of this Agreement shall not be affected, impaired or invalidated, and the other terms and provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

1. 24. Governing Law.   This Agreement will be governed by and construed in accordance with the laws of the state of New York, without regard to the principles of conflict of laws thereof.

1. 25. Attorney’s Fees.  In the event that a dispute arises with respect to this Agreement (including, without limitation, seeking injunctive relief pursuant to Paragraph 16), the Party prevailing on the merits in such dispute shall be entitled to recover all expenses, including, without limitation, reasonable attorneys’ fees and expenses, incurred in ascertaining such Party’s rights under this Agreement.

1. 26. Entire Agreement. This Agreement (including without limitation, any Statement of Work) constitutes the entire agreement between Vendor and Client with respect to the subject matter hereof and supersede all other oral and written representation, understandings or agreement relating to the subject matter hereof.

1. 27. Modifications to this Agreement; Dispute Resolution. This Agreement in its entirety including all appendices, attachments, Statements of Work, and/or exhibits may only be amended if the amendments are in writing and are agreed upon by both the Vendor and the Client. In the event a dispute arises as a result of this Agreement, excluding: (a) each Party’s rights to seek equitable relief under Paragraph 16; (b) Vendor’s collection of fees, expenses, taxes, interest, and penalties payable by Client, or (c) the Parties’ indemnification rights under Section 12; then Vendor and the Client agree to first try in good faith to resolve the dispute with the help of a mutually agreed upon mediator. Any costs and fees, other than attorney fees, associated with the mediation shall be shared equally by both Parties. If mediation proves to be unsatisfactory, either Vendor or Client may provide notice to the other, as provided under the rules of the American Arbitration Association (the “Rules”) that the dispute will be decided by binding arbitration. Vendor and the Client agree that the binding arbitration will be conducted under the Rules and Article 9 of the United States Code. Arbitration hearings will be held in Rochester, New York, unless another location is mutually agreed in a signed writing by both Vendor and Client. The prevailing Party shall be entitled to reimbursement for reasonable attorney fees, costs and expenses by the other Party. Client will not have right of offset in case of dispute and Client will pay all outstanding and past due invoices and nothing herein will prevent Vendor from exercising its rights to interrupt service for non-payment as detailed above.

1. 28. No Waiver. Failure of either Party to act or exercise its rights under this Agreement upon the breach of any of the terms hereof by the other Party shall not be construed as a waiver of such a breach or prevent said Party from thereafter enforcing strict compliance with any or all of its terms hereof.

1. 29. Headings; Counterparts. The captions and headings herein are for convenience only and are not to be construed as a part of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be one and the same Agreement. This Agreement may be executed by facsimile or electronic signature and each Party agrees that it shall not raise or assert any claim or defense based on the usage of electronic or facsimile execution, and further agrees that, at any time during or after the Term of this Agreement, shall return an ink-signed hard copy of the Agreement to the other Party upon such other Party’s request, which shall be deemed to be effective as of the date of the electronic or facsimile-signed original.

1. 30. Notices. All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing and delivered by: (i) postpaid and registered or certified mail, return receipt requested; (ii) hand delivery; or (iii) reputable express courier providing written receipt of delivery, and addressed to the addresses set forth in the preamble to this Agreement, provided that notice may be delivered by facsimile or electronic mail where provided in this Agreement or upon the mutual written consent of the Parties.  All notices shall be deemed effective upon the date of its actual receipt or when delivery is refused.  The inability to deliver because of changed address, of which no notice was given, shall be deemed to be receipt of such notice.  Either Party may change the notice address listed in the preamble to this Appendix A upon written notice to the other Party.