This Master Services Agreement (hereinafter “Agreement”) is made and entered into on the date of purchase from the Microsoft Marketplace (the “Effective Date”), by and between Open Systems Technologies DE, LLC, a Delaware limited liability company, and its affiliates and subsidiaries, with a principal business address at 605 Seward NW, Grand Rapids, Michigan 49504 (hereinafter “OST”), and the purchaser (hereinafter “Client”), with Client and OST referred to individually as a “Party” or collectively as “Parties”.

 

Client wishes to have certain services performed by OST from time to time, and OST wishes to perform services for Client.  This Agreement sets forth the general terms and conditions under which OST will provide and Client will receive services set forth herein.  For good and valuable consideration, the receipt and sufficiency of which is acknowledged, Client and OST hereby mutually agree as follows:

 

1. Services

 

(A) Statements of Work. OST shall provide services to Client as described in a statement of work (SOW) and any explicitly affiliated or incorporated documents or an addendum or amendment executed by the Parties (the “Services”).  Each SOW shall (i) be signed by the Parties; (ii) incorporate by reference this Agreement; and (ii) state the pertinent business parameters, including, but not limited to, pricing, payment, expense reimbursement, and a detailed description of the Services to be provided.  Any terms not set forth in the Agreement, an addendum or amendment thereto, or in a signed SOW will be of no effect.  Any change in the scope of Services shall be agreed upon in writing by the Parties, and OST shall have no obligation to perform Services in connection with any change until the Parties have agreed upon the effect of such change in a SOW.  Notwithstanding the foregoing, any Services provided by OST to Client during the Term that are not documented in a SOW or another written agreement between the Parties will be governed by the terms of the Agreement.

 

(B) Changes.  A change in the Services shall not invalidate this Agreement or the applicable SOW. A change in the Services shall be made only by written change order (which may take the form of a revision of the SOW) signed by authorized representatives from both Parties. OST shall promptly comply with any and all written change orders. No revision of this Agreement or any SOW shall be valid unless made in writing by Client and signed by the authorized representatives of both Parties.

 

2.  Compensation

 

(A) Invoices.  OST shall invoice Client per the terms of each SOW.  If terms are not specified in a given SOW, OST shall invoice Client each month for Services rendered plus out-of-pocket expenses incurred (“Fees”).  Client agrees to pay all invoices within 30 days after receipt.  Any amount remaining unpaid after 30 days shall accrue interest at a rate of one and one-half percent (1.5%) per month.  In the event of any dispute regarding a portion of an invoice, the undisputed portion shall be paid as provided herein.

 

(B) Reimbursable Expenses.  OST shall be reimbursed for reasonable actual out-of-pocket expenses incurred in performance of the Services.  Such expenses shall include reasonable travel, lodging, and meal expenses unless otherwise stated in a SOW. 

 

(C) Taxes.  Client shall be responsible for paying any applicable governmental taxes required to be paid on any Services purchased or licensed by Client under this Agreement, excluding, however, any taxes related to OST’s income, personnel, or operations.

 

3. Term and Termination

 

(A) Term.  The initial term of this Agreement shall commence on the Effective Date, set forth on page 1 of the Agreement herein, and unless otherwise stipulated in the applicable SOW expire twelve (12) months thereafter. Unless otherwise stipulated in the applicable SOW after the initial term, this Agreement shall automatically renew for successive twelve (12)-month periods unless either Party provides the other Party with written notice of non-renewal at least sixty (60) days prior to the end of the then-current term. Upon termination, OST agrees to complete (and Client agrees to make payment for) any Services in progress unless specifically directed otherwise by Client, it being understood and agreed that termination of this Agreement shall not constitute termination of any Services in progress pursuant to a previously executed SOW.

 

(B) Termination.  

 

(i) Termination for Convenience.

 

(a) Unless otherwise stipulated in the applicable SOW, and except as provided below for Managed Services, either Party may terminate the Agreement at any time for business convenience, without cause, by providing at least sixty (60) days’ prior written notice.  Upon termination of the Agreement, all SOW’s then in effect will be terminated with the Agreement.  Upon termination of the Agreement or any SOW, Client will pay any undisputed Fees due to OST for Services fully performed prior to termination.  OST agrees to mitigate OST’s damages to the greatest extent possible.  Upon termination by Client under this subsection, Client shall not be entitled to, and hereby waives, claims for breaches of this Agreement and all other damages and expenses.  All continuing duties set forth in Section 12(G) and in any SOW shall continue notwithstanding the termination.

 

(b)  Unless otherwise stipulated in the applicable SOW, if Client terminates Services provided by OST for “Managed Services” which may include, but is not limited to, enterprise service management, operational support for virtual end user compute, continuity of operations management, application platform support, service and infrastructure alignment, or cloud management & orchestration, Client agrees to pay OST a termination for convenience fee equal to the monthly fee for the remaining months due under the SOW or a greater or lesser fee if so identified in the SOW for the Managed Services provided. Upon termination by Client under this subsection, Client shall not be entitled to, and hereby waives, claims for breaches of this Agreement and all other damages and expenses.  All continuing duties set forth in Section 12(G) and in any SOW shall continue notwithstanding the termination.

 

(ii) Termination for Cause.  Unless otherwise stipulated in the applicable SOW, if either Party breaches any material term or condition stated herein or fails to perform or fulfill any material obligation required by this Agreement or any individual SOW, the other Party may terminate this Agreement and/or the SOW by giving written notice to the breaching Party stating the circumstances of the breach; a period during which the alleged breach may be cured (which period shall not be less than seven (7) days); and a date, at least ten (10) calendar days after the date of the notice, stating when the termination will be effective if the breach is not otherwise cured.  In the event of a breach, the breaching Party shall be subject to any and all applicable contract rights and remedies available to the non-breaching Party.

 

(C) Suspension of Services. OST shall be entitled to suspend the Services without liability if (i) OST reasonably believes the Services are being used in violation of this Agreement or any applicable law; (ii) Client is in breach of any material term of this Agreement including, but not limited to, failing to pay invoiced amounts in full within 30 days as set forth in Subsection 2(A) herein; or (iii) OST is requested to do so by any law enforcement or governmental agency.  Client will not be able to access any files on OST’s servers during a suspension of the Services.  OST will use commercially reasonable efforts to give Client advance notice in writing of a suspension of Services.  A suspension of Services under this subsection will not be considered a breach by OST of the terms of this Agreement.

 

4. Conditions of Performance

 

(A) Performance Standards.  Unless otherwise stipulated in the applicable SOW, OST hereby agrees to:

 

(i) Furnish, perform, and pay for all labor, equipment, supervision, services, materials, supplies, equipment, licenses, and insurance that are (i) necessary or appropriate for the timely completion of the Services, and (ii) consistent with the applicable SOW.

 

(ii) If applicable, bring all equipment necessary to the location on which the Services are to be performed (hereinafter “Premises”) as described in the applicable SOW in order to perform the Services. OST shall assume all risk of loss to such equipment, and all personal property of OST and any subcontractor, and Client shall have no obligation to repair, restore, or replace any such property unless such loss or destruction is the result of the negligence of the Client, its agents or employees, or the result of Client’s breach of this Agreement; in which case OST shall be entitled to seek and recover its actual damages associated with such negligence or breach.

 

(iii) Meet with representatives of Client to the extent necessary with regard to the rules, regulations, and all conditions that may affect the Services. OST shall, before commencement of performance of the Services, review those rules and regulations with OST’s employees and subcontractors.

 

(iv) Coordinate the performance of the Services, as applicable, with OST’s subcontractors or any other contractors. Any dispute or disagreements related to coordination of the Services by OST and other contractors shall be submitted to Client, and the decision of Client shall be conclusive and binding among all parties concerned.

 

(v) If applicable, obtain permission to enter the Premises from Client’s representative at mutually agreed to times.

 

(vi) OST shall carry the Services forward expeditiously with adequate labor to insure the completion of the Services within the time stipulated. If OST falls behind schedule at any time, for any reason, then Client shall be entitled to require acceleration or re-sequencing of the Services to bring the Services back on schedule at no additional cost to Client, unless such delinquency is the result of Client’s negligence or breach of this Agreement, in which case OST may charge additional, reasonable, fees associated with the cost of any necessary acceleration or re-sequencing.

 

(vii) Assure that all Services, whether performed by OST or by a subcontractor, are performed with due regard to the safety of persons and property. All Services shall be performed in strict accordance with any applicable municipal, state, or other governmental laws, codes, rules, regulations, and Client’s safety policies.

 

(B) Client’s Property. OST shall clearly mark, maintain an inventory of, and keep segregated or identifiable all of Client’ property and all property to which Client acquires an interest by virtue of this Agreement. OST assumes all risk of loss, destruction, or damage of such property while in OST’s possession, custody, or control. OST shall provide Client with adequate proof of insurance against such risk of loss. OST shall notify Client’s Authorized Representative promptly if Client’s property is lost, damaged, or destroyed. As directed by Client upon completion or termination of the applicable SOW, OST shall deliver such property to Client in good condition.

 

(C) Delegation and Subcontracting of Work.  OST may, without the written consent of Client, subcontract to any third party any of the Services to be provided to the Client hereunder.  In the event OST subcontracts any of the Services to a third party service provider, OST shall remain as fully responsible for the acts and omissions of its subcontractors and their respective employees and agents as it is for OST’s own acts and those of its employees and agents. OST shall accept full and exclusive liability for payment by it and its subcontractors of any and all taxes, contributions, and premiums imposed upon or measured by payroll, including, without limitation, all taxes or contributions for unemployment insurance, old age or retirement benefits, pensions, annuities, or other similar benefits for their employees and agents, and shall comply with all applicable laws and regulations respecting the assumption of liability for those taxes or contributions. OST shall indemnify, defend, and hold Client harmless from and against any liability for such taxes or contributions that Client is required to pay. Unless otherwise approved by Client, OST shall, by appropriate agreement, written where legally required for validity, require each subcontractor with whom it contracts, to the extent of the Work to be performed by the subcontractor, to be bound to OST by the terms and conditions of this Agreement and to assume toward OST all the obligations and responsibilities that OST assumes toward Client. Each subcontract shall be assignable to Client upon OST's default.

 

(D) Assignment of Agreement.  Except as otherwise stated in this Agreement, neither Party shall assign any of its rights or interests in this Agreement, or subcontract all or substantially all of its performance of this Agreement to any subcontractor, without the other Party’s prior written consent.

 

(E) Independent Contractor.  OST is an independent contractor for all purposes. OST shall have complete control over the performance of, and the details for accomplishing, the Services. In no event shall OST or its agents, representatives, or employees be deemed to be agents, representatives, or employees of Client. OST’s employees shall be paid exclusively by OST for all Services performed. OST shall comply with all requirements and obligations relating to such employees under federal, state, and local law (or foreign law, if applicable). Such compliance shall include, but not be limited to, laws regarding minimum wages, social security, unemployment insurance, federal and state income taxes, and workers’ compensation insurance. Upon Client’ request, OST shall provide Client with OST’s Federal Tax ID Number.

 

(F) Permits, Laws, and Regulations.  Except as otherwise provided in the applicable SOW, and without increase in the price or fees set forth in the applicable SOW, OST shall obtain all licenses or professional certifications that are required in connection with the performance of the Services, and shall give all notices, pay all fees, and take all other actions that are necessary to ensure that the Services are performed in accordance with all applicable local, state, and federal laws, ordinances, rules, and regulations of any public authority bearing on the performance of the Services including, but not limited to, safety, health, environmental protection, fire and hazard communications standards. OST shall promptly examine the applicable SOW and report to Client if such SOW fails to conform to any applicable law, ordinance, rule, or regulation.

 

5.  Obligations of Client.

 

(A) Client shall at its expense undertake all necessary preparations required to comply with OST’s requirements to provide Services to Client.  Such preparations include obtaining all necessary consents for the installation and use of OST equipment in the Premises.  Client agrees to cooperate fully with OST and must provide data, information, or testing necessary to perform the Services.

 

(B) Premises Access.  Client shall provide OST or other persons authorized by OST with access (on both a routine and emergency basis) for the implementation of all Services.  Client will provide OST reasonable access to the Premises where any OST equipment is installed.  OST shall not be responsible for any faults or any failure to perform the provisions of this Agreement to the extent that OST, in good faith, requires access, and any such faults or failures or the continuation thereof are a result of the failure of Client to provide access to the place at each location where OST equipment is installed.

 

(C) Authority.  Client represents that Client has the right and authority to enter into the Agreement and to make all of the grants and assignments to undertake the obligations required by the Agreement.  In addition, Client represents that Client knows of no condition that would be likely to limit Client’s ability to perform the Agreement or any SOW. Client further represents that the individual signing this Agreement, any addendum or amendment thereto, and any SOW, has full authority to do so on Client’s behalf.  Client will be deemed to make these representations and warranties anew upon each execution of a SOW and any amendment or addendum to this Agreement. 

 

6.  Proprietary Rights.

 

(A) Intellectual Property. OST and Client agree that, unless otherwise agreed upon in writing, their respective rights to any “Intellectual Property” developed or used in connection with the Services shall be as set forth in this Section 6. As used herein, “Intellectual Property” means the intangible legal rights or interests evidenced by or embodied in (i) any idea, design, concept, technique, invention, discovery or improvement, whether or not patentable, but including patents, patent applications, trade secrets and know-how, (ii) any work of authorship, whether or not copyrightable, but including copyrights and any similar intangible rights recognized by law, (iii) any trademark, service mark or trade name, (iv) any trade secret and (v) any other similar rights, in each case on a worldwide basis.

 

(i)  Pre-Existing Intellectual Property and Independently Developed Intellectual Property.  Each Party shall retain all rights, title and interests in the Intellectual Property that it (a) has as of the date of the Agreement (“Pre-Existing IP”), and (b) independently developed during the term of the Agreement (“Independently Developed IP”). Except as expressly set forth herein, neither Party shall have any right, title or interest in any of the Pre-Existing IP or Independently Developed IP of the other Party, except Client shall have an irrevocable, royalty-free and perpetual license to use for the purpose for which it is made available to Client in accordance with the Services and the applicable SOW any of OST’s Pre-Existing IP and Independently Developed IP that is incorporated into any material, work product, document, data or other deliverable developed or provided by OST in connection with any Services provided to Client (“Deliverables”).  Client may not (a) reproduce or use Preexisting IP or Independently Developed IP other than as components of the Deliverables, (b) distribute Preexisting IP or Independently Developed IP, or sublicense any rights in Preexisting IP or Independently Developed IP to third parties other than in support of Client’s internal business operations.

 

(ii) Jointly Developed Intellectual Property.  Unless otherwise agreed to in writing, Client shall retain sole rights, title and interest in all Intellectual Property that is jointly developed by the Parties during the term of the Agreement (“Jointly Developed IP”).  As owner of the Jointly Developed IP, Client shall have the right to independently use, make improvements to, make derivative works of and license the Jointly Developed IP.  To the extent Client uses, makes improvements to, makes derivative works of or licenses any of the Jointly Developed IP, Client shall have no obligation to pay any royalty or other fee to OST.  All Jointly Developed IP shall be considered “works made for hire” (as defined in the U.S. Copyright law).  OST agrees to execute any and all documents and do any and all further acts, at Client’s expense, as may be requested by Client from time to time to carry out the intent and purposes of this section, including, but not limited to, giving testimony in support of inventorship or authorship as may be necessary in any legal proceedings or any application proceedings for any U.S. or foreign patents or copyrights.  To the extent this Section does not provide Client with full ownership, right, title, and interest in and to the Jointly Developed IP, OST grants Client a perpetual, irrevocable, fully paid, royalty-free license to the Jointly Developed IP.

 

(iii)            Deliverables.  Subject to OST’s rights, title, and interest in all OST Pre-Existing IP and OST Independently Developed IP pursuant to Section 6(A)(i) above, the terms and conditions of this Agreement including the payment of applicable fees, and the Client’s rights, title, and interest in Jointly Developed IP pursuant to Section 6(A)(ii) above, OST grants Client a non-exclusive, non-transferable, non-sublicenseable right to access and use the Deliverables for the purpose for which it is made available to Client in accordance with the Services and the applicable SOW.  . 

 

(iv) Third-Party Software.  Client acknowledges and agrees that each third-party software product (“Third-Party Software”) is the property of the respective third-party owner or licensor and that Client has no right or title, nor will it assert any right or title, in the same except as expressly granted in writing by the terms and conditions of such third party’s license or purchase agreement.  All Third-Party Software provided to Client under this Agreement shall be used only in accordance with the applicable license from the third party.

 

(v) Nothing in this Agreement shall preclude OST from using in any manner and for any purpose it deems necessary, its Independently Developed IP, general knowledge, skills and experience and any ideas, concepts, know-how and techniques related to OST’s consulting and used in the course of providing the Services on other engagements for individuals and entities other than Client, including, but not limited to, automation and monitoring technologies developed by OST through learning lessons engaged in the course of performing Services for the Client. 

 

7. Indemnification and Limitation of Liability.

 

(A) OST hereby agrees to indemnify and hold harmless Client, its agents, and its employees (each, a “Client Indemnified Party”), from and against all claims, damages, losses, and expenses, including reasonable attorney fees (collectively, the “Losses”), arising out of or resulting from (a) any breach by OST of any of the terms contained in this Agreement; (b) any data of Client that is, by virtue of OST’s negligence, lost, stolen, or compromised while in the possession or control of OST or any third party to whom OST provided any Client data; or (c) any third-party claim alleging that any of the Services or Deliverables infringe on such third-party’s patent, copyright, trademark, trade secret or other intellectual property rights.  OST’s obligations set forth in this Section do not apply to the extent that Losses arise out of (a) Client’s breach of this Agreement; (b) revisions to the Services or Deliverables made by Client or a third party without OST’s written consent; (c) OST’s modification of the Services or Deliverables in compliance with specifications provided by Client; or (d) use of the Services or Deliverables in combination with hardware or software not provided by OST. Notwithstanding the foregoing, OST’s liability under this Section 7(A) shall not exceed the total revenue received by OST from the Client for the specific product or service upon which any such claim for Losses is based. 

 

(B) OST agrees to reimburse each Client Indemnified Party for all such Losses provided that each Client Indemnified Party must provide prompt written notice to OST after receiving knowledge of a claim for which it seeks indemnification from OST.  OST shall be entitled to assume the defense of any such action, proceeding or investigation, including the employment of qualified and competent counsel and the payment of all fees and expenses; provided, however, (1) OST shall use counsel that has been approved in writing by the Client Indemnified Party, which approval will not be unreasonably withheld, and (2) OST shall not settle any such action, proceeding or investigation without the written consent of the Client Indemnified Party. 

 

(C) Client hereby agrees to indemnify and hold harmless OST, its agents, and its employees (each, an “OST Indemnified Party”), from all Losses, arising out of or resulting from (a) any breach by Client of any of the terms contained in this Agreement; or (b) any claim alleging that data, information, or software provided by Client, whether or not incorporated into the Services or Deliverables, infringes on a patent, trademark, trade secret, or other intellectual property rights.

 

(D) OST's liability (whether in contract, tort, negligence, strict liability or by statute or otherwise) to Client or to any third party concerning performance or non-performance or otherwise related to this Agreement shall individually or in the aggregate be limited to the direct and actual damages, not to exceed the fees received by OST hereunder for the portion of the services giving rise to such claim.

NOTWITHSTANDING ANY PROVISION HEREIN OR IN ANY SOW TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGE, OR EXPENSES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR OTHER ECONOMIC LOSS, LOST REIMBURSEMENTS, LOST DATA, OR LOST SAVINGS) EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES ,EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE, AND EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.  The provisions of this Section shall survive termination of this Agreement.

 

8. Insurance – OST hereby agrees:

 

(A) To maintain, so long as Services are being performed, the following insurance coverage:

 

(i) Commercial General Liability Insurance, on an occurrence basis, including contractual liability insurance, with limits of: General Aggregate - $2,000,000 Products/Completed Operations Aggregate - $2,000,000; Occurrence Limits - $1,000,000 Personal Injury Limit - $1,000,000.

 

(ii) Automobile Liability with a combined single limit of $1,000,000; covering all, non-owned, and hired automobiles.   

 

(iii) Workers’ Compensation coverage as required by applicable state laws and Employer’s Liability Insurance with limits of $500,000 each accident/$500,000 disease each employee/$500,000 disease policy limits. 

 

(iv) Professional Liability Professional or Errors and Omissions Liability – covering OST’s errors, omissions, or other acts committed or omitted that cause liability in the performance or nonperformance of OST’s professional services, in the amount of $2,000,000 each wrongful act or omission and in the annual aggregate, to be kept in effect for three (3) years after completion of the Work or termination of the Contract, whichever is later. 

 

(B) The Commercial General Liability and Automobile Liability shall include the Client as additional insured.

 

(C) Prior to the commencement of Services, OST will furnish Client with a certificate of insurance that:  (i) incorporates all provisions required above; (ii) shows Client, as the certificate holder; and (iii) are signed by an authorized representative. 

 

 

9. Warranty – OST warrants:

 

(A) That all Services performed hereunder shall be performed by employees or agents of OST who are experienced and skilled in their profession and in accordance with industry standards.  Time spent correcting any defects found after delivery that are normal or typical and/or not the result of the gross negligence of OST will be billed hourly at the same rate as other work under the SOW.

 

(B) To the best of OST’s knowledge, that OST has the full legal right and authority to grant to Client the license(s) granted in the Agreement. 

 

(C) To the best of OST’s knowledge, any software developed as a part of the Services does not and will not: (i) infringe upon the patent, copyright, or other proprietary right of any third party; or (ii) misappropriate the trade secret or intellectual property of any third party; provided that the representation and warranty stated in this paragraph will not apply to infringements or misappropriations to the extent that they result from misuse or modification of the software or systems, as applicable, by or on behalf of Client, without OST’s knowledge.

 

(D) These warranties shall survive inspection and acceptance of, and payment for any Services performed. These warranties shall run to Client and its successors, assigns, and customers.

 

(E) Disclaimer and Exclusions. 

 

(i) Disclaimer.  Except as expressly stated in this Section 9, OST (including its suppliers, subcontractors, employees, and agents) provides Services “AS IS” and makes no other express or implied warranties, written or oral, and ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. NOTHING HEREIN IS INTENDED TO CONSTITUTE OR CREATE ANY REPRESENTATION OR WARRANTY BY OST TO ANY THIRD PARTY, (INCLUDING END USERS), DIRECTLY OR AS A THIRD PARTY BENEFICIARY, WITH RESPECT TO ANY OF THE SERVICES PROVIDED HEREUNDER.  The Parties do not intend the Agreement or any SOW to be governed by Article 2 of the Uniform Commercial Code.

 

(ii) Third-Party Hardware and Software.  OST MAKES NO WARRANTY WITH RESPECT TO ANY THIRD-PARTY HARDWARE OR SOFTWARE, AND ANY WARRANTY THAT MAY APPLY TO THIRD-PARTY HARDWARE OR SOFTWARE IS ONLY AS EXPRESSLY STATED BY THE MANUFACTURER, OWNER, OR LICENSOR OF THE THIRD-PARTY HARDWARE OF SOFTWARE. 

 

(iii) Third-Party Maintenance and Support.  OST MAKES NO WARRANTY WITH RESPECT TO ANY THIRD-PARTY MAINTENANCE OR SUPPORT SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT, AND ANY WARRANTY THAT MAY APPLY TO ANY SUCH SERVICES IS ONLY AS EXPRESSLY STATED AND PROVIDED BY THE THIRD-PARTY. 

 

10. Confidentiality. 

 

(A) In connection with this Agreement, one Party (the “Receiving Party”) may have access to certain information that the other party (the “Disclosing Party”) treats as confidential and proprietary, including, without limitation, information regarding the Disclosing Party’s trade secrets, products, vendors, operations, finances, employees, information systems and the existence of and terms of this Agreement or any applicable SOW (collectively, “Confidential Information”).  During and after the term of this Agreement, the Receiving Party shall (i) hold the Disclosing Party’s Confidential Information in confidence using the same degree of care that it uses to protect its own Confidential Information (but in no event less than a reasonable degree of care), (ii) use the Disclosing Party’s Confidential Information solely in connection with performing its obligations hereunder or, in the case of Client, in connection with its use of the Services, or Deliverables, and (iii) not disclose any of the Disclosing Party’s Confidential Information to any employee or other third party except to a limited number of its employees who have a need to know the Disclosing Party’s Confidential Information in order to perform its obligations under this Agreement or, in the case of Client, in connection with its use of the Services, or Deliverables. 

 

(B) Confidential Information shall not include information that the Receiving Party can demonstrate by written records: (i) is or becomes a part of the public domain through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the Receiving Party by a third-party without restriction on disclosure; or (iv) is independently developed by the Receiving Party without the use of any of the Disclosing Party’s Confidential Information.  The Receiving Party shall not be in violation of this Section 10 for disclosure of the Disclosing Party’s Confidential Information that is required to be disclosed pursuant to governmental or judicial process, provided that the notice of such process is promptly provided to the Disclosing Party in order that it may have every opportunity to intercede in such process to contest such disclosure.  The provisions of this Section 10 shall survive the performance, completion, termination, or cancellation of this Agreement. 

 

(C) OST shall have the right to build case studies based on Services performed under this Agreement and use those materials from case studies for marketing purposes.  OST shall have the right to describe and demonstrate Services performed under this Agreement to prospective clients and use those materials for sales and other promotional purposes. OST shall respect the client’s Confidential Information as defined above.  Client has the right to review and request in writing that OST edit or remove material used in any case study or demonstrated to a specific industry or prospective client at any time.

 

11.  Competition; No Hire Clause

 

(A) Competition.  In recognition that OST personnel performing under this Agreement may perform similar Services for others, this Agreement shall not prevent OST from providing Services or developing Deliverables that are competitive with those developed or provided hereunder regardless of any similarity to such Services or Deliverables.  OST shall endeavor to honor a request for a specific consultant, subject to staffing or scheduling considerations; however, OST shall determine the assignment of its personnel.

 

(B) No Hire Clause.  OST and Client agree that during the term of this Agreement, including extensions and modifications thereto, and for a period of twelve (12) months following the term of this Agreement, neither OST nor Client will actively recruit or solicit permanent employees of either Party, or the employees of any other subcontractor; who are on active payroll status and are currently participating in the provision of the Services under this Agreement, without the prior written approval of the Party whose employee is being considered for employment.  This does not prohibit any employee responding to or pursuing employment opportunities through normal media channels so long as it is not an attempt to avoid the intent of this Section 11(B).

 

12. Miscellaneous.

 

(A) Severability. If any provision contained in this Agreement is held to be unenforceable by an arbitrator or by a court of law or equity, this Agreement shall be construed as if such provision did not exist, and the unenforceability of such provision shall not in any way affect the enforceability of any other provision of this Agreement.

 

(B) Waiver.  The failure to enforce or the waiver by either Party of one default or breach of the other Party shall not be considered to be a waiver of any subsequent default or breach.

 

(C) Remedies. Each Party acknowledges that a violation of this Agreement may cause substantial and irreparable injury to the other Party for which the other Party’s remedies at law may not be adequate.  Accordingly, the Parties agree that the non-breaching Party shall be entitled to seek injunctive relief with respect to any breach, or threatened breach, of this Agreement, and that such right shall be in addition to, and not in limitation of, any other rights or remedies to which the non-breaching Party may be entitled at law or in equity.

 

(D) Disputes and Governing Law. During the term of this Agreement, any dispute that arises between the Parties shall be negotiated in good faith by equivalent levels of the Parties’ management. The venue and jurisdiction for any dispute that arises under or is related to this Agreement shall be decided by a court of competent jurisdiction in the Circuit Court for Kent County, Michigan or in the United States District Court for the Western District of Michigan, provided such court has subject matter jurisdiction. The prevailing Party in any action to enforce this Agreement shall be entitled to recover all costs and expenses associated with such enforcement from the non-prevailing Party, including attorney fees. This Agreement, all SOW’s, and any work or Services performed thereunder shall be governed by the substantive and procedural laws of the State of Michigan.

 

(E) Entire Agreement.  This Agreement constitutes the entire and fully-integrated agreement between OST and Client with respect to the subject matter hereof and thereof.  All previous understandings relative thereto, either written or oral, are hereby annulled and superseded.  No modification to this Agreement shall be binding on either Party unless it is in writing and signed by both OST and Client.  No provision in any SOW executed by Client and OST shall be incorporated into any other SOW in effect between Client and OST unless specifically referenced in the applicable SOW.  In the event of any inconsistency or conflict in the provisions of this Agreement, any applicable addendum or amendment, any applicable SOW, or attachment thereto, the order of precedence shall be (i) the applicable SOW, (ii) any applicable SOW attachment or exhibit, (iii) this Agreement, (iv) the applicable addendum or amendment.  All disclaimers, conditions, limitations on liability and other terms set forth in any invoice, purchase order, acknowledgment, packing slip, confirmation, click-through or click-wrap agreement or other document or agreement of Client which conflict with the terms of this Agreement shall not be binding on OST and are hereby rejected.

 

(F) Counterparts.  This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall be effective when one or more such counterparts have been signed by each of the Parties and delivered to the other Parties.

 

(G) Survival.  The indemnity provisions, and any other provisions that are continuing in nature (e.g., warranties according to their terms and confidentiality), will survive termination of any or all of the provisions of this Agreement or other relationship between the Parties.

 

(H) Disclaimer of Third-Party Beneficiary Rights – Nothing in this Agreement shall be construed to create any duty to, or standard of care with reference to, or any liability to any person not a party to this Agreement.

 

(I) Force Majeure. Neither Party shall be liable to the other Party or be deemed to have breached this Agreement for any failure or delay in the performance of all or any portion of its obligations under this Agreement if such failure or delay is due to any contingency beyond its reasonable control (a “Force Majeure Event”).  Without limiting the generality of the foregoing, Force Majeure Events include, but are not limited to, acts of God, fires, floods, pandemics, storms, earthquakes, riots, boycotts, strikes, lock-outs, acts of terror, wars and war operations, restraints of government, power or communication line failure or other circumstance beyond such Party’s reasonable control.  Both Parties are obligated to provide reasonable back-up capability to avoid the potential interruptions from a Force Majeure Event.  If a Force Majeure Event occurs, the Party delayed or unable to perform shall give immediate notice to the other Party.  If a Party is unable to perform any of its obligations because of a Force Majeure Event, then (i) such Party shall immediately resume performing its obligations once the Force Majeure Event is removed, (ii) the other Party may cease performing its obligations during the period in which the affected Party is not performing, (iii) the other Party may terminate this Agreement if a Force Majeure Event prevents a Party from performing its obligations under this Agreement for more than thirty (30) days, or (iv) if OST is unable to perform any of its Services as a result of a Force Majeure Event, then OST shall refund Client a pro rata amount of the fees most-recently paid by Client for such Services.

 

(J) Signatures, Document Imaging, Electronic Transactions and the UETA.  Without notice to or consent of Client, OST may create electronic images of this Agreement and any applicable SOW, addendum or amendment, and destroy paper originals of any such imaged documents.  Provided that such images are maintained by or on behalf of OST as part of OST’s normal business processes, Client agrees that such images have the same legal force and effect as the paper originals, and are enforceable against Client.  Furthermore, client agrees that OST may convert this Agreement, and any applicable SOW, addendum or amendment into a “transferrable record” as such term is defined under, and to the extent permitted by, the Uniform Electronic Transactions Act as in effect in the State of Michigan, as amended from time to time, and any successor statute, and any regulations promulgated thereunder from time to time (“UETA”), with the image of such instrument in OST’s possession constituting an “authoritative copy” under the UETA.  Electronic signatures permitted by the UETA shall be considered valid and enforceable.