Confidentiality: Teraverde agrees that Teraverde shall keep Company’s Confidential Information in strictest confidence and shall not use, disclose, or publish, or assist any third party in using, disclosing or publishing, any Confidential Information, except as provided in this Agreement. “Confidential Information” means any and all information received by Teraverde about the business or finances of the Company or any subsidiary or affiliate, including without limitation all financial statements and other financial data, all personnel data, and all information about products or Services, software and other technology, business plans, projections, existing and proposed projects or investments, suppliers, customers, employees, paying correspondents or money transfer or other agents, pricing, purchase and sales records and data, marketing, processes and methodologies and trade secrets, but excluding information that the Company deliberately and voluntarily makes publicly available. Company agrees that it will use best efforts not to provide or allow Teraverde access to “personally-identifiable information” as defined in the Gramm Leach Bliley Act and regulations issued there under.
Teraverde shall protect the Confidential Information from unauthorized use or disclosure by using the same degree of care, but no less than a reasonable degree of care, as Teraverde uses to protect its own confidential information of like nature. Teraverde will restrict access to: (i) Confidential Information to those employees, affiliates, agents, advisors, consultants and other representatives (“Representatives”) who have a need to know for the purposes of this Agreement; and (ii) only the Confidential Information Representatives need for such purposes.
Teraverde shall not be liable for use or disclosure of Confidential Information if the Confidential Information is or comes into the public domain through no fault of Teraverde or its representative, is known to Teraverde without restriction at the time of disclosure, is used or disclosed with the prior written approval of Company; or is independently developed by personnel of Teraverde without reference to Confidential Information.
Breach of Confidentiality: Should Teraverde become aware of any violation of this agreement, it shall: a) take appropriate actions to address incidents of unauthorized access to such nonpublic customer and consumer financial information and any other confidential and proprietary information of the Company; b) notify the Company as soon as possible of any violation; and c) appropriately assist the Company to expeditiously implement Company’s response program for such violations.
Confidentiality and Breach of Confidentiality: This agreement of the parties regarding Confidentiality and Breach of Confidentiality is binding upon the parties, their successors and assigns and shall survive the termination of this Agreement for any reason.
Ownership: All Confidential Information, in any form, shall be and remain the sole and exclusive property of the Company. At any time that the Company may request, Teraverde shall deliver and cause its Representatives to deliver all Confidential Information to the Company and delete or destroy all Confidential Information in Teraverde’s control. Teraverde documents not containing Confidential Information, including but not limited to, internal research memoranda, consultant notes, records of internal communications, drafts of documents and other similar materials, created or used by Teraverde in connection with the Services are the intellectual property of Teraverde, and the Company has no ownership interest or other rights with respect to these materials. Teraverde grants the Company a permanent, irrevocable, nonexclusive license to use solely for Company’s business any documentation, workflows, design proposals, design and logic of any custom forms, fields, and business rules, and other information that is built to complete or otherwise results from this Statement of Work. Company shall have exclusive title to any modification, improvements, and/or amendments that the Company may make to such documentation, workflows, design proposals, design and logic of any custom forms, fields, and business rules, and other information. The source code behind software, programs or other deliverables will not be provided to the Company and the Company has no right or interest in such source code, unless specifically transferred by separate written agreement. If separate written agreement is not executed, the Company shall not attempt to obtain the source code by any means, shall not modify or alter the source code, and shall not use or transfer the source code.
Reporting and Information: Teraverde will report directly to the Company designated project manager. The Company shall furnish or cause to be furnished to Teraverde such information as Teraverde reasonably believes appropriate to the execution of the Services.
Termination: Although Teraverde highly values continuing client relationships, the Company has the right to terminate the Services upon reasonable prior written notice to that effect. Because of the nature of the consultant relationship, termination of this Agreement should be in writing, or if made orally, should be promptly confirmed in writing. Conversely, this Agreement may be terminated by Teraverde upon reasonable prior written notice. If this Agreement is terminated by any party, the Company will remain obligated to pay in full for past Services and Teraverde expenses and any Products for License Terms, in accordance with the terms of this Agreement.
Limitation on Damages: Neither party shall be liable to the other for consequential, incidental, indirect, punitive or special damages, including commercial loss and lost profits, however caused and regardless of legal theory or foreseeability, directly or indirectly arising under this Agreement, even if such party has been apprised of the possibility of such damages. Except for the indemnification obligations of the following paragraph, neither party’s liability for any damages arising out of Services or this Agreement shall exceed those charges paid to Teraverde by the Company for the applicable Service.
Indemnification Obligations: Company shall use Teraverde’s licensed software and/or Teraverde IP in the ordinary course of Company’s business and shall not re-sell, sublicense or allow any other person access to the same. Should any Teraverde licensed software or Teraverde IP used or furnished by Teraverde in connection with the Services give rise to any patent, copyright, trademark or similar infringement action against the Company by any third parties, Teraverde agrees to indemnify, defend, reimburse and hold harmless the Company, its officers, directors, employees, agents and controlling persons from any and all damages, fees, penalties, costs of defense, attorneys’ fees and liability resulting from any and all disputes arising as a result or consequence of such infringement. Company shall not furnish any third parties with documentation or deliverables or Teraverde IP relating to the Services. Should the Company furnish any third parties with documentation or deliverables or Teraverde IP relating to the Services, the Company agrees, subject to applicable laws and regulations, to indemnify, defend, reimburse and hold harmless Teraverde, its officers, directors, employees, agents and controlling persons from any and all damages, fees, penalties, costs of defense, attorneys’ fees and liability resulting from any and all disputes arising as a result or consequence of Company’s furnishing of such documentation to third parties or a third parties’ reliance on such documentation. Should either Teraverde or the Company violate any state or federal statute protecting consumer or customer information, the violating party shall indemnify, defend, reimburse and hold harmless the other party, its officers, directors, employees, agents and controlling persons from any and all damages, fees, penalties, costs of defense, attorneys’ fees and liability resulting from any and all disputes arising as a result or consequence of the breach of such confidentiality obligations.
Conflicts: From time-to-time Teraverde will provide advice and consulting Services to other entities in the financial Services industry. Further, affiliates of Teraverde may own interests in, or engage in transactions, with banks and entities in the financial Services industry. Nothing in this Agreement shall be deemed to preclude Teraverde or its affiliates from engaging in such activities without the knowledge or consent of the Company, provided however, that if Teraverde has actual knowledge that the Company has a current or pending contract with an entity in which Teraverde or an affiliate of Teraverde has an interest, Teraverde will advise the Company that such interest exists. Teraverde will not use or reveal Confidential Information given to Teraverde by Company in such activities. The Companyacknowledges and agrees that Teraverde may introduce the Company to persons with whom Teraverde has an existing relationship. Teraverde Personnel. The Company shall not hire Teraverde personnel involved in providing Services for a period of one year following the conclusion of the Services, unless the Company and Teraverde agree differently in writing. In the event of a hire during this time frame, the Company agrees to pay a placement fee of $150,000 to Teraverde to cover recruiting, training and other replacement costs. Electronic Communications. Teraverde relies upon electronic communication such as email and cellular telephones and faxes, tools and media (“Electronic Communications”) in day-to-day business communications. Because of their nature, Electronic Communications are not as secure as more traditional lines of communications, such as hard-wired telephones and faxes, U.S. Mail, or couriers. In the course of Teraverde’s Services to the Company, Electronic Communications for all general information, requests, and otherwise are hereby authorized. The Company understands that some risk exists that any and all Electronic Communications could be intercepted by an unauthorized third party, and the Company accepts that risk. For matters of particular sensitivity or for information that could be compromising or damaging to the Company, the Company’s contact person who is working with Teraverde has the authority to consent specifically to the use of Electronic Communications for such matters. Teraverde shall also consider all requests for, or communications of, information from the Company by Electronic Communications as specific consent to respond by Electronic Communications.
Governing Law, Jurisdiction and Venue: This Agreement shall be interpreted and construed according to, and governed by, the laws of Pennsylvania, excluding any such laws that might direct the application of the laws of another jurisdiction. The Company and Teraverde agree that jurisdiction and venue for all actions under this Agreement shall lie in the Commonwealth of Pennsylvania. Any suit or action arising out of this Agreement or any instruments executed in connection with this Agreement shall be brought either in the Court of Common Pleas of Lancaster County, Pennsylvania, or the Federal District Court for the Eastern District of Pennsylvania.
Independent Contractor; No Fiduciary Duty: Each of the parties hereto acknowledges and agrees that it is a sophisticated business enterprise and that Teraverde has been retained pursuant to this Agreement to act as an advisor solely with respect to the matters set forth in this Agreement. In such capacity, Teraverde shall act as an independent contractor, and any duties of Teraverde arising out of its engagement pursuant to this Agreement shall be contractual in nature and shall be owed solely to the Company. Each party disclaims any intention to impose any fiduciary duty on the other.
Amendments: Other than extension of the term or changes in billing rates as provided in this Agreement, any amendment, modification or other change to this Agreement must be inwriting and signed by both parties to be enforceable. If any provision of this Agreement is or becomes inconsistent with any applicable present or future law, rule or regulation, that provision will be deemed rescinded or modified in order to comply with the relevant law, rule or regulation. All other provisions of this Agreement shall remain in full force and effect.
In addition to the Specified Products to be provided by Teraverde to Company set forth in this Agreement, the Company and Teraverde may agree, from time to time, that Teraverde will provide other Services and/or Products to Company (“Additional Services”) under the terms of this Agreement. Such additional Services may be documented by a subsequent Statement of Work (“SOW”), Change Requests, Specifications, or other instructions.
Additional Products or Changes: Additional Products or changes outside of the scope of this Agreement requested by Client, will result in a proposed Statement of Work (“SOW”) in accordance with the Additional Services provision below, detailing any cost or timing impact, to be approved by the Company in advance of work. This Agreement does not apply to previous agreements or SOWs between the parties, nor does it apply to separate agreements or SOWs not relating to Specified Products. Any work outside the Specified Products scope set forth on in this Agreement, such as training of Company employees, conforming the Specified Products to unusual or non-standard LOS changes or updates, customized data mapping, additional data handling functions on the LOS side, Change Orders, financial, accounting, reconciliation or balancing work will be set forth in a written SOW executed by the Company and Teraverde. The Specified Products scope does not include technical troubleshooting for network connectivity or database installation, creation, or modification of the solution within the Company environment(s). Any requested changes that may cause additional scope or functional changes to the standard Specified Product installation are outside the scope.
Client Web Portal Approvals: Teraverde maintains a client web portal. Company’s execution of this Agreement and use of the client web portal, constitute authorization by the Company for Teraverde to accept Company’s web portal sign off approval of electronic Functional Specifications, Change Requests and/or SOWs for Additional Services or other instructions (“Web Portal Documents”) from time to time. If Teraverde electronically offers Web Portal Documents to Company and Company signs off on the Web Portal Document by clicking the “Accept” button on the client web portal, then the Web Portal Document so accepted shall be authorized by Teraverde and Company under the terms and conditions of this Agreement, as modified by the terms of the Web Portal Document.
Billing: Unless otherwise provided in an SOW, the Additional Services will be billed on an hourly basis. This Agreement shall govern all Additional Services requested by Company and provided by Teraverde unless the parties agree in writing to the contrary. If the Company has a preexisting Letter of Engagement or SOW, this Agreement shall not be deemed to apply to services provided pursuant to those preexisting agreements.
Retainer: Teraverde may require an advance retainer of with respect to Additional Services in order to retain Teraverde and for Teraverde to begin work on behalf of Company. Teraverde will render statements for Additional Services and related charges on aperiodic basis. Company’s retainer is intended be applied at the conclusion of the Additional Services and all intervening Teraverde invoices are due and payable when presented. However, Teraverde may draw against the retainer from time-to-time if Teraverde invoices are not paid when due. If Teraverde elects to apply any portion of the retainer to billings before the end of the Additional Services, Company shall replenish the amount so applied to replenish the retainer in full. At the end of the Additional Services, Teraverde will refund any unused retainer to Company.
Hourly Basis: Teraverde will provide Additional Services on an hourly basis, and will invoice its Additional Services on a bimonthly basis. Hourly rates for non-fixed price engagements for Teraverde personnel, which the Company shall pay directly to Teraverde are specified in the SOW. Invoices will itemize Additional Services by consultant, description of work, and time expended in thirty-minute increments.
Fees and Costs: In addition to fees for Additional Services, the Company will be billed for any reasonable expenses and costs relating to Services, including pre-engagement expenses. These charges will include transportation, lodging and meal cost for consultants. A 3% administrative charge is added to all invoices to cover administrative support to consultants, report preparation, telephone, photocopies, postage, and courier expense, which are not billed separately.
Rate Changes: Teraverde shall provide thirty days advance written notice to Company of any changes to Teraverde’s rates of professional fees and expenses. Unless the Company terminates this Agreement during such thirty-day period, the new rates shall apply at the end of such thirty-day period.
No offset: Company shall pay Teraverde, without deduction or offset, all invoices and any additional amounts set forth in any applicable SOW.
Suspension of Work: Teraverde’s continuing performance of Additional Services is conditioned upon Teraverde’s timely receipt of payment of all amounts from Company when due and any applicable work completion schedules may be immediately adjusted or services may be immediately suspended due to any late payments by Company.
Late Charges: Unless otherwise specified, all payments from Company for Additional Services shall be due within fifteen (15) days of the date of Teraverde’s invoice to Company. All payments not made when due by Company shall bear interest at a rate of one and one-half percent (1.5%) per month.
Taxes: Company shall pay any sales tax, tariff, duty or similar tax (and any related interest and penalties), however designed, imposed as a result of the existence or operation of this Agreement, excluding any income taxes of Teraverde.
Scope of Additional Services: In no event will Teraverde act in any management or decision-making capacity; rather it will assist and advise management. Teraverde will not provide legal or accounting Services. Any legal or accounting matters in connection with Additional Services should be reviewed by Company’s professional legal and accounting professionals.
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