Terms & Conditions

This master services agreement is dated [DATE], and is between SR PARTNERS, LLC d/b/a NATIONAL TECHNOLOGY MANAGEMENT, a Michigan limited liability company ("NTM"), and [CLIENT ENTITY NAME], a [JURISDICTION OF ORGANIZATION] [ENTITY TYPE] ("Client").

NTM is in the business of providing managed information technology services and other associated services. Client wants NTM to provide services to Client, and the parties want to establish the terms under which NTM provides those services.

The parties therefore agree as follows:

Article 1. Definitions

1.1 Definitions. In this agreement, the following definitions apply:

"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, that Person. The term "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

"Authorized Persons" means NTM Personnel who have a need to know or otherwise access Personal Information to enable NTM to perform its obligations under this agreement, and who are bound in writing by confidentiality and other obligations sufficient to protect Personal Information in accordance with this Agreement.

"Client Equipment" means any equipment, systems, cabling, or facilities provided by Client and used directly or indirectly in the provision of the Services.

"Client Indemnitee" means Client, any Affiliate of Client, each Representative of any of the preceding, and each of the heirs, executors, successors, and assignees of any of the preceding.

"Client Materials" means any documents, data, know-how, methodologies, software, and other materials provided to NTM by Client, including computer programs, reports, and specifications.

"Confidential Information" means (1) information (other than Excluded Information) relating to the Discloser and its business that the Discloser discloses to the Recipient during the Disclosure Period and (2) Derived Information.

"Data Breach or Security Incident" means (1) any act or omission that materially compromises the security, confidentiality, or integrity of Personal Information or the physical, technical, administrative, or organizational safeguards put in place by NTM, or by Client should NTM have access to Client's systems, that relate to the protection of the security, confidentiality, availability, or integrity of Personal Information; or (2) receipt of a complaint regarding the privacy and data security practices of NTM or a breach or alleged breach of this agreement relating to those privacy and data security practices.

"Deliverables" means all documents, work product, and other materials that are delivered to Client under this agreement or prepared by or for NTM while performing the Services, including any items identified as that in a SoW.

"Derived Information" means information (including notes, analyses, compilations, and summaries) that is in writing or embodied in an electronic medium and that the Recipient or any of the Recipient's Representatives derive, in whole or in part, from any information described in clause (1) of the definition of Confidential Information.

"Discloser" means a party that discloses information under this agreement.

"Disclosure Period" means the period from the date of this agreement to termination of this agreement.

"Excluded Information" means information that comes within any of the following categories:

(1) other than personally identifiable information, information that is or becomes public other than as a result of breach of any obligation under this agreement;

(2) information that, when it is disclosed, is already in the possession of the Recipient or any of the Recipient's Representatives as the result of disclosure by a Person that was not then under an obligation to the Discloser to keep that information confidential;

(3) information that, after it is disclosed under this agreement, is disclosed to the Recipient or any of the Recipient's Representatives by a Person that was not then under an obligation to the Discloser to keep that information confidential; and

(4) information that the Recipient develops independently, as evidenced by contemporaneous written records, before the Discloser discloses equivalent information to the Recipient.

"Government Body" means (1) the government of a country or of a political subdivision of a country; (2) an instrumentality of any such government; (3) any other individual, entity, or organization authorized by Law to perform any executive, legislative, judicial, regulatory, administrative, military, or police functions of any such government; or (4) an intergovernmental organization.

"Indemnifiable Losses" means the aggregate of Losses and Litigation Expenses.

"Indemnitee" means a NTM Indemnitee or a Client Indemnitee that receives indemnification under this agreement.

"Indemnitor" means a party that indemnifies an Indemnitee under this agreement.

"Intellectual Property Rights" means all (1) patents, patent disclosures, and inventions (whether patentable or not); (2) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, plus all the goodwill associated with it; (3) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases; (4) trade secrets, know-how, and other confidential information; and (5) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, those rights, and all similar or equivalent rights or forms of protection in any part of the world.

"Key Personnel" means any NTM Personnel who is identified as being key in a SoW.

"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any Government Body.

"Litigation Expense" means any reasonable out-of-pocket expense incurred in defending a Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and legal and other professional fees and disbursements.

"Loss" means any amount awarded in, or paid in settlement of, any Proceeding, including any interest but excluding any Litigation Expenses.

"Nonparty Claim" means any Proceeding that an Indemnitee is subject to indemnification under section 9.1 or 9.2, as applicable.

"NTM Equipment" means any equipment, systems, cabling, or facilities provided by or for NTM and used directly or indirectly in the provision of the Services.

"NTM Indemnitee" means NTM, any Affiliate of NTM, each Representative of any of the preceding, and each of the heirs, executors, successors, and assignees of any of the preceding.

"NTM Personnel" means all employees and Permitted Subcontractors, if any, engaged by NTM to perform the Services.

"Person" means an individual, a corporation, partnership, limited liability company, association, trust, unincorporated organization, or other legal entity or organization, or a Government Body.

"Personal Information" means information that Client provides or for which Client provides access to NTM, or information that NTM creates or obtains for Client, in accordance with this agreement that: (1) directly or indirectly identifies an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (2) can be used to identify or authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, answers to security questions, an individual's internet activity or similar interaction history, inferences drawn from other personal information to create consumer profiles, geolocation data, an individual's commercial, employment, or education history, and other personal characteristics and identifiers), in case of both clauses (1) and (2), including Sensitive Personal Information. Client's business contact information is not by itself Personal Information.

"Pre-Existing Materials" means all documents, data, know-how, methodologies, software, and other materials, including computer programs, reports, and specifications, provided by or used by NTM in connection with performing the Services, in each case developed or acquired by NTM before the date of, or independently from, this agreement.

"Proceeding" means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding.

"Recipient" means a party that receives information under this agreement.

"Representative" means, as to an entity, any of that entity's directors, officers, employees, agents, consultants, advisors, and other representatives.

"Residual Information" means, as to any individual, any Confidential Information that the individual remembers without any need to refer to that Confidential Information as fixed in a tangible medium.

"Sensitive Personal Information" means an individual's (1) government-issued identification number, including Social Security number, driver's license number, or state-issued identification number; (2) financial account number, credit report information, or credit, debit, or other payment cardholder information, with or without any required security or access code, personal identification number, or password that permits access to the individual's financial account; (3) biometric, genetic, health, or health insurance data; (4) geolocation data; or (5) information regarding their racial or ethnic origin, religious beliefs, sex life or sexual orientation, union membership, or citizenship or immigration status.

"Service Credit" means any credits payable to the Client in accordance with any SoW.

Article 2. Services

2.1 Services. NTM shall perform those services specified in any statements of work signed by Client and NTM that reference this agreement and that Client and NTM enter into during this agreement (each such statement of work, an "SoW"; any such services, "Services"). NTM shall perform any Services in accordance with this agreement and the SoW for those Services. If this agreement and any SoW are inconsistent, this agreement will prevail. The timeframe for performing any Services will be as stated in the SoW for those Services.

2.2 SoWs. Each SoW must include the following information, if applicable:

(1) a detailed description of the Services to be performed under the SoW;

(2) the date on which the Services will begin and the term of that SoW;

(3) the names of the NTM Contract Manager and any Key Personnel;

(4) the fees to be paid to NTM under the SoW;

(5) any criteria for completion of the Services;

(6) procedures for the testing and acceptance of the Services and Deliverables by Client; and

(7) any other terms agreed on by the parties in connection with the Services to be performed under that SoW.

2.3 NTM's Obligations.

(a) NTM shall:

(1) appoint: (A) a NTM employee to serve as a primary contact regarding this agreement and who will have the authority to act for NTM in connection with matters pertaining to this agreement ("NTM Contract Manager"); and (B) NTM Personnel, who will be suitably skilled, experienced, and qualified to perform the Services;

(2) maintain the same NTM Contract Manager throughout this agreement except for changes in that personnel due to: (A) Client's request under section 2.3(a)(3); or (B) the resignation or termination of that personnel or other circumstances outside of NTM's reasonable control;

(3) on the reasonable written request of Client, promptly replace the NTM Contract Manager and any other NTM Personnel;

(4) before the date on which the Services are to start, obtain, and at all times during this agreement maintain, all necessary licenses and consents and comply with all relevant Laws applicable to the provision of the Services;

(5) before any NTM Personnel performing any Services under this agreement: (A) ensure that the NTM Personnel have the legal right to work in the United States; and (B) at its sole expense, conduct background checks on those NTM Personnel, which background checks must comprise, at a minimum, a review of credit history, references, and criminal record, in accordance with state, federal, and local Law;

(6) comply with, and ensure that all NTM Personnel comply with, all rules, regulations, and policies of Client that are communicated to NTM in writing, including security procedures concerning systems and data and remote access to them, building security procedures, including the restriction of access by Client to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures;

(7) obtain Client's written approval, which shall not be unreasonably withheld, before entering into agreements with or otherwise engaging any Person, including all subcontractors and Affiliates of NTM, other than NTM's employees, to provide any Services and Deliverables to Client (each such approved subcontractor or other nonparty, a "Permitted Subcontractor"). Client's approval does not relieve NTM of its obligations under the agreement, and NTM will remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with this agreement as if they were NTM's own employees. Nothing contained in this agreement will create any contractual relationship between Client and any NTM subcontractor or supplier; and

(8) require each Permitted Subcontractor to be bound in writing by the confidentiality and intellectual property assignment or license provisions of this agreement.

(b) NTM is responsible for all NTM Personnel and for the payment of their compensation, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers' compensation insurance payments, and disability benefits.

2.4 Client's Obligations.

(a) Client shall:

(1) cooperate with NTM in all matters relating to the Services and appoint and, in its reasonable discretion, replace a Client employee to serve as the primary contact regarding this agreement and who will have the authority to act for Client regarding matters pertaining to this agreement ("Client Contract Manager");

(2) provide, subject to section 2.3(a)(6), that access to Client's premises and those office accommodation and other facilities as NTM may reasonably require, for performing the Services;

(3) respond promptly to any NTM request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for NTM to perform Services in accordance with the requirements of this agreement;

(4) provide those Client Materials as NTM may reasonably request and Client considers reasonably necessary, to carry out the Services timely and ensure that it is accurate in all material respects;

(5) ensure that all Client Equipment is in good working order and suitable for the purposes for which it is used and conforms to all relevant legal or industry standards or requirements;

(6) obtain and maintain all necessary licenses and consents and comply with all Laws regarding the Services, the installation of the NTM Equipment, the use of Client Materials, and the use of the Client Equipment with the NTM Equipment to the extent that those licenses, consents, and Laws relate to Client's business, premises, staff, and equipment, in all cases before the date on which the Services are to start; and

(7) keep, maintain, and insure the NTM Equipment in good condition, and shall not dispose of or use NTM Equipment other than in accordance with NTM's written instructions or authorization.

(b) If NTM's performance of its obligations under this agreement is prevented or delayed by any act or omission of Client or its Representatives, NTM will not be deemed in breach of its obligations under this agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from that prevention or delay.

2.5 Change Orders. It is a condition to any change in Services that NTM and Client sign a written change order stating the change and its effect on those Services. Unless otherwise stated in the change order, changes to the Services will be effective either: (1) as of the date of the change to the Service, with a prorated amount due for any partial month; or (2) as of the beginning of the next calendar month, at NTM's option.

Article 3. Term and Termination

3.1 Term. This agreement terminates on the termination of the last outstanding SoW, unless terminated earlier under section 3.2. The initial term of each SoW terminates at midnight at the beginning of the day that is the [three/five]-year anniversary of the date of that SoW. The term of each SoW (consisting of the initial term and any one-year extensions in accordance with this section 3.1) will automatically be extended by consecutive one-year terms unless no later than 90 days before any such extension begins either party notifies the other party that it does not wish to extend that SoW. If an SoW is extended for one or more one-year extensions, the terms of this agreement during each one-year extension will be the same as the terms in effect immediate before that extension, subject to any change in fees in accordance with section 4.3.

3.2 Termination.

(a) Client may terminate this agreement, any SoW, or any Service, in whole or in part, for any reason by giving NTM at least 90 days' prior notice. If Client terminates this agreement, any SoW, or any Service early under this section 3.2(a), then, besides any outstanding fees owed at termination, Client shall pay NTM an early termination fee ("Early Termination Fee") equal to the monthly recurring fee times the number of months remaining in the then-current term of the SoW for the Services that have been terminated. Client acknowledges that the actual damages likely to result from early termination under this section 3.2(a) are difficult to estimate on the date of this agreement and would be difficult for NTM to prove. The parties intend that Client's payment of the Early Termination Fee would compensate NTM for the anticipated or actual harm that might arise from that early termination. They do not intend for it to be a penalty for any such early termination. Client's payment of the Early Termination Fee is Client's sole liability and entire obligation and NTM's exclusive remedy for any termination by Client under this section 3.2(a).

(b) Either party may terminate this agreement or any SoW effective when that party notifies the other party ("Defaulting Party") of occurrence of any of the following:

(1) the Defaulting Party breaches any obligation under this agreement and, if that breach is amendable to cure, does not cure that breach in the 30 days after the other party notifies the Defaulting Party of that breach, except that NTM may terminate this agreement or any SoW effective when NTM notifies Client if after suspension of the Services for nonpayment, any invoiced amount, not disputed in good faith and in written detail, remains overdue for an additional ten days; or

(2) the Defaulting Party (A) becomes insolvent or admits its inability to pay its debts generally as they become due; (B) becomes subject, voluntarily or involuntarily, to any Proceeding under any domestic or foreign bankruptcy or insolvency law, that is not stayed within seven business days or is not dismissed or vacated within 45 days after filing; (C) is dissolved or liquidated or takes any corporate action for that purpose; (D) makes a general assignment for the benefit of creditors; or (E) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

(c) Despite anything to the contrary in this agreement, subject to Law, the fees for the Services through the conclusion of all SoWs will immediately become due if NTM terminates this agreement in accordance with section 3.2(b).

3.3 Effect of Termination. On termination of this agreement for any reason:

(a) NTM shall (1) promptly deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid, all Client Equipment, and all Client Materials in its possession; (2) promptly remove any NTM Equipment located at Client's premises; and (3) provide reasonable cooperation and assistance to Client on Client's written request and at Client's expense in transitioning the Services to a different NTM. In addition, any unpaid Service Credits claimed and accruing will represent a debt due from NTM to Client.

(b) Each party shall (1) return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other party's Confidential Information as required under section 7.8; (2) permanently delete all the other party's Confidential Information from its computer systems; and (3) certify in writing to the other party that it has complied with the requirements of this section 3.3(b).

(c) After termination of this agreement, NTM shall, within ten days of the termination, invoice Client for any outstanding fees and expenses due under this agreement, including any Early Termination Fees, and Client shall pay all those fees and expenses to NTM in accordance with the payment terms set out in article 4.

Article 4. Fees and Expenses

4.1 Fees.

(a) For the provision of the Services by NTM and the rights granted to Client under this agreement, Client shall pay the fees set out in the applicable SoW. Payment to NTM of those fees and the reimbursement of expenses under this article 4 will constitute payment in full for the performance of the Services, and Client will not be responsible for paying any other fees or expenses.

(b) Where the Services are provided on a time and materials basis:

(1) the fees payable for the Services will be calculated in accordance with NTM's hourly fee rates set out in the applicable SoW;

(2) Client shall reimburse NTM, at NTM's actual cost, for any materials, machinery, equipment, and nonparty services (collectively, "Materials") reasonably necessary for the provision of the Services, on condition that NTM shall obtain Client's written consent before the purchase of all Materials, which shall not be unreasonably withheld; and

(3) NTM shall issue invoices to Client monthly in arrears for its fees for time for the immediately preceding month, calculated as provided in this section 4.1(b), with a detailed breakdown of any expenses for that month incurred in accordance with section 4.2.

(c) Where Services are provided for a fixed price, the total fees for the Services will be the amount set out in the applicable SoW. The total price will be paid to NTM in installments, as set out in the SoW. Recurring fees will be billed in advance, either monthly, quarterly, or annually, as set out in the applicable SoW. Nonrecurring fees will be billed monthly in arrears.

4.2 Expenses. Client shall reimburse NTM for all actual, documented, and reasonable travel and out-of-pocket expenses incurred by NTM in connection with the performance of the Services that have been approved in advance in writing by Client.

4.3 Rate Increase.

(a) After the initial contract year, for Services provided on a time and materials basis, NTM may increase its standard fee rates specified in the applicable SoW on written notice to Client, on condition that:

(1) NTM provides Client written notice of that increase at least 90 days before the effective date of that increase;

(2) those increases occur no more frequently than once a contract year of this agreement; and

(3) the amount of that increase will not exceed the lesser of: (A) the percentage rate of increase for the immediately preceding 12-month period in the Consumer Price Index, All Urban Consumers, United States, All Items (1982-1984=100), as published by the Bureau of Labor Statistics of the United States Department of Labor or, if that index is not available, that other index as the parties may agree most closely resembles that index; and (B) 5%.

(b) For each one-year extension, the fees for Services provided on a fixed price basis will be increased by 7%.

4.4 Nonparty Fee Increase. In the event of a direct or indirect increase of fees by a nonparty vendor charged to NTM for Client's use of services or software or both provided by a nonparty and used in connection with the Services, NTM may increase the fees by the same percentage amount on 90 days' advance notice (or on shorter notice if the nonparty fee increase becomes effective sooner).

4.5 Payment Terms. NTM shall issue invoices to Client only in accordance with this article 4, and Client shall pay all properly invoiced amounts due to NTM within 30 days after Client's receipt of that invoice, except for any amounts disputed by Client in good faith. Fee changes due to increases or decreases in number of end users or licenses will be effective as of the beginning of the next calendar month. If any Service Credits are claimed and due, then they must be shown as a deduction from the invoice. All payments under this agreement will be in US dollars and made by check, credit card, automated clearing house (ACH), or wire transfer.

4.6 Taxes. Client will be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges imposed by any Government Body on any amounts payable by Client under this agreement. Any such taxes, duties, and charges currently assessed or that might be assessed in the future, that are applicable to the Services are for the Client's account, and Client shall pay those taxes, except that in no event will Client pay or be responsible for any taxes imposed on, or regarding, NTM's income, revenues, gross receipts, personnel, or real or personal property or other assets.

4.7 Invoice Disputes. In the event of a payment dispute, Client shall deliver a written statement to NTM no later than 15 days before the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed will be deemed accepted and must be paid, despite disputes on other items, within the period set out in section 4.5. The parties shall try to resolve all those disputes expeditiously and in good faith. NTM shall continue performing the Services in accordance with this agreement despite any such dispute.

4.8 Late Payments. If payments are not received by NTM within 15 days after becoming due, NTM may (1) charge interest on any such unpaid amounts at a rate of 1.5% a month or, if lower, the maximum amount permitted under Law, from the date that payment was due until the date paid; and (2) suspend performance for all Services until payment has been made in full, except for any amount disputed in good faith in accordance with section 4.7. Client shall also reimburse NTM for all reasonable costs incurred in collecting any late payments and related interest, including, without limitation, attorneys' fees, legal costs, court costs, and collection agency fees.

Article 5. Intellectual Property Rights

5.1 NTM. NTM owns all Intellectual Property Rights and all other rights in Deliverables (except for any Confidential Information of Client or Client Materials) and the Pre-existing Materials. NTM hereby grants Client a license to use all those rights free of additional charge and on a nonexclusive, worldwide, and perpetual basis to the extent necessary to enable the Client to make reasonable use of Deliverables and the Services.

5.2 Client. Client and its licensors own all interest in the Client Materials, including all Intellectual Property Rights in them. NTM has no right or license to use any Client Materials except solely during the agreement to the extent necessary to provide the Services to Client. Client reserves all other rights in the Client Materials.

Article 6. Data Security

6.1 NTM and Client Obligations.

(a) NTM shall:

(1) comply with this agreement;

(2) be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information under its control or in its possession by all Authorized Persons;

(3) not disclose Personal Information to any Person other than its Authorized Persons without Client's prior written consent unless required by Law, in which case, NTM shall use reasonable efforts and to the extent permitted by Law notify Client before that disclosure or as soon afterward as reasonably possible; and

(4) use and disclose Personal Information only for the purposes for which Client provides the Personal Information, or access to it, under this agreement, and not use or otherwise disclose or make available Personal Information for NTM's own purposes without Client's prior written consent.

(b) Client shall:

(1) comply with this agreement;

(2) be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information under its control or in its possession;

(3) comply with any Laws and use only secure methods, according to accepted industry standards, when transferring or otherwise making available Personal Information to NTM; and

(4) provide written notice to NTM if any information Client provides to NTM under this agreement contains Personal Information. NTM will not be responsible for determining on its own that any information Client provides under this agreement qualifies as Personal Information.

6.2 Information Security. NTM shall comply with Laws in its creation, collection, receipt, access, use, storage, disposal, and disclosure of Personal Information.

(b) NTM shall employ reasonable security measures to protect Personal Information in accordance with NTM's information security policy as amended on one or more occasions ("Information Security Policy"). NTM shall employ additional security measures to protect Sensitive Personal Information, including industry standard data encryption.

(c) If, during its performance under this agreement, NTM has access to or will collect, access, use, store, process, dispose of, or disclose credit, debit, or other payment cardholder information for Client, NTM shall comply with the Payment Card Industry Data Security Standard ("PCI DSS") requirements, as applicable.

6.3 Data Breach or Security Incident Procedures.

(a) NTM maintains a cyber incident breach response plan ("Cyber Incident Response Plan") in accordance with NTM's Information Security Policy and shall implement the procedures required under that plan on the occurrence of a Data Breach or Security Incident.

(b) NTM shall notify Client of a Data Breach or Security Incident as soon as reasonably practicable after NTM becomes aware of it.

(c) NTM shall not inform any nonparty of any Data Breach or Security Incident without Client's prior consent, other than to inform a complainant that the matter has been forwarded to Client's legal counsel.

6.4 Security Controls Review or Audit. At least annually, NTM shall obtain a security controls review or audit performed by an independent nonparty based on recognized industry standards.

6.5 Return or Disposal of Personal Information. At any time during this agreement at Client's written request or on the termination of this agreement, NTM shall promptly return to Client or securely dispose of all Personal Information in its possession or in the possession of Authorized Persons and notify Client that the Personal Information has been returned to Client or disposed of securely. If NTM is not reasonably able to return or securely dispose of Personal Information, including, but not limited to, Personal Information stored on backup media, NTM shall continue to protect that Personal Information in accordance with this agreement until it can reasonably return or securely dispose of that Personal Information.

Article 7. Confidentiality

7.1 Not Disclosing or Using Confidential Information. For as long as it remains Confidential Information, the Recipient shall not (1) disclose that Confidential Information except as contemplated in this agreement or (2) use that Confidential Information other than for purposes of this agreement.

7.2 Terminating the Disclosure Period Early. Either party may by notice to the other party terminate the Disclosure Period early, with any such notice being effective on delivery unless the notice specifies a later date.

7.3 Permitted Onward Disclosure. Any individual to whom the Recipient discloses Confidential Information in accordance with this agreement may disclose that Confidential Information only to any Representatives of the Recipient who need that Confidential Information in connection with this agreement, on condition that before Confidential Information is disclosed to any individual in accordance with this section 7.3 the Recipient notifies that individual in writing of the confidential nature of the Confidential Information and that individual (if not otherwise under a duty to keep that Confidential Information confidential, including as a result of being a director, officer, employee, or lawyer of the recipient) is then party to a written confidentiality agreement with the Recipient in which that individual promises not to disclose any Confidential Information or use any Confidential Information other than in connection with this agreement. The Recipient has provided the Discloser with a copy of each such confidentiality agreement in effect on the date of this agreement and shall promptly provide the Discloser with a copy of each such confidentiality agreement entered into after the date of this agreement.

7.4 Precautions Against Unauthorized Disclosure or Use. The Recipient shall take precautions to prevent disclosure or use of Confidential Information other than as authorized in this agreement. Those precautions must be at least as effective as those taken by the Recipient to protect the Recipient's own Confidential Information or those that would be taken by a reasonable person in the Recipient's position, whichever are greater. If the Recipient complies with the Recipient's obligations under this section 7.4, the Recipient will not be liable for any losses or liabilities of the Discloser arising out of misappropriation of Confidential Information from the Recipient by any nonparty.

7.5 Unauthorized Disclosure or Use by Representatives. If any one or more of the Recipient's Representatives disclose or use Confidential Information other than as authorized in this agreement, the Recipient will be liable to the Discloser for that disclosure or use to the same extent that the Discloser would have had the Recipient disclosed or used that Confidential Information.

7.6 Notifying of Unauthorized Disclosure or Use. If the Recipient becomes aware of disclosure or use of Confidential Information other than as authorized in this agreement, the Recipient shall promptly notify the Discloser of that disclosure or use and shall cooperate with the Discloser in mitigating any adverse consequences to the Discloser of that disclosure or use.

7.7 Not Disclosing This Agreement. During the Disclosure Period and afterward until that information becomes public other than as a result of breach of this section 7.7, each party shall not disclose to any other Person the existence of this agreement and its terms, except to the extent disclosure is required by Law, in which case that disclosure will not constitute a breach of the party in question's obligations under this section 7.7, on condition that it has complied with section 7.9, as if section 7.9 applied to that disclosure besides disclosure of Confidential Information.

7.8 End of the Disclosure Period. When the Disclosure Period ends, the Recipient shall promptly (but in any event no later than 30 days after the end of the Disclosure Period) (1) return to the Discloser all copies of Confidential Information that, on disclosure, the Discloser had instructed the Recipient to return at the end of the Disclosure Period and (2) destroy all remaining copies of Confidential Information disclosed to the Recipient under this agreement.

7.9 Disclosure Required by Law.

(a) If any Proceeding is brought to compel the Recipient or any of the Recipient's Representatives to disclose Confidential Information or if the Recipient or any of the Recipient's Representatives is otherwise required by Law to disclose any Confidential Information, the Recipient shall do the following:

(1) unless by doing so the Recipient would violate any Law or an order of a Government Body, notify the Discloser of that Proceeding or that requirement, as the case may be, promptly after learning of it, taking into account for purposes of determining the Recipient's promptness any time constraints that the Discloser would face in bringing a Proceeding to prevent that disclosure or to protect the confidentiality of any information that is disclosed; and

(2) at the Recipient's expense cooperate with the Discloser in any Proceeding the Discloser brings to prevent that disclosure or to protect the confidentiality of any information that is disclosed.

(b) It will not constitute a breach of the Recipient's obligations under this agreement for the Recipient or any of the Recipient's Representatives to disclose Confidential Information as required by Law, on condition that the Recipient has complied with the Recipient's obligations under section 7.9(a) in connection with that disclosure.

7.10 Export Controls. The Recipient shall not export or reexport any Confidential Information, directly or indirectly, without first obtaining any license required under export control laws.

7.11 No License. The Discloser's disclosure of Confidential Information will not constitute a grant to the Recipient or any of the Recipient's Representatives of a license to, or any other interest in, any of the Discloser's intellectual property.

7.12 Reverse Engineering. The Recipient shall not reverse engineer, disassemble, or create other works from any software or hardware constituting or included in any Confidential Information.

7.13 Residual Information. Use of Residual Information for the Recipient's benefit by any Representatives of the Recipient to whom Confidential Information was disclosed in accordance with this agreement will not constitute breach of the Recipient's obligations under this agreement if the Recipient did not have any of the Recipient's Representatives intentionally commit to memory the Confidential Information in question and on condition that the Recipient is complying with the Recipient's obligations under section 7.8.

Article 8. Statements of Fact

8.1 Mutual Statements of Fact. Each party states that the following facts are accurate:

(1) it is duly organized, validly existing, and in good standing as a corporation or other entity as represented in this agreement under the Laws of its jurisdiction of incorporation, organization, or chartering;

(2) it has the full right, power, and authority to enter into this agreement, to grant the rights and licenses granted under it, and to perform its obligations under it;

(3) the signing of this agreement by its Representative whose signature is set out at the end of this agreement has been authorized by all necessary corporate action of the party;

(4) when entered into by that party, this agreement will constitute that party's legal, valid, and binding obligation, enforceable against that party in accordance with its terms; and

(5) the signing and performance of this agreement by that party will not constitute or result in a violation of any material agreement to which that party is a party or by which that party or its assets are bound.

8.2 NTM's Additional Statements of Fact. NTM states that the following additional facts are accurate:

(1) it will perform the Services using personnel of required skill, experience, and qualifications and in a professional and competent manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this agreement;

(2) it is in compliance with, and will perform the Services in compliance with, all Laws; and

(3) (A) to NTM's knowledge none of the Services, Deliverables, and Client's use of them infringe or will infringe any registered or issued patent, copyright, or trademark of any nonparty arising under the Law of the United States; and (B) as of the date of this agreement, there are no pending or, to NTM's knowledge, threatened Proceedings pending against NTM by any nonparty based on an alleged violation of those Intellectual Property Rights, in each case, excluding any infringement or Proceedings to the extent arising out of (i) any Client Materials or any instruction, information, designs, specifications, or other materials provided by Client to NTM; (ii) use of the Deliverables in combination with any materials or equipment not supplied or specified by NTM, if the infringement would have been avoided by the use of the Deliverables not so combined; and (iii) any modifications or changes made to the Deliverables by or for any Person other than NTM. NTM's sole liability and Client's exclusive remedy for NTM's breach of this section 8.2(3) are NTM's obligations under section 9.1.

8.3 Disclaimer of Warranties. Except for the statements of fact or warranties in this agreement, (1) each party is not making any warranty, either express, implied, statutory, or otherwise under this agreement; and (2) NTM is not making any implied warranty of merchantability, fitness for a particular purpose, title, and noninfringement.

Article 9. Indemnification

9.1 NTM Indemnification. Regarding any Proceeding brought by someone other than NTM or someone other than one or more Client Indemnitees against one or more Client Indemnitees and that arises out of this agreement or Client's use of the Services or the Deliverables, including, but not limited to, that Client's receipt or use of them infringes any Intellectual Property Right of a nonparty arising under the Laws of the United States, NTM shall indemnify those Client Indemnitees against all Indemnifiable Losses arising out of that Proceeding, except to the extent that Client negligently or intentionally caused those Indemnifiable Losses or a Nonparty Claim for infringement of any Intellectual Property Right arises out of:

(1) any Client Materials or any instruction, information, designs, specifications, or other materials provided by Client in writing to NTM;

(2) use of the Deliverables in combination with any materials or equipment not supplied to Client or specified by NTM in writing, if the infringement would have been avoided by the Deliverables not so combined; or

(3) any modifications or changes made to the Deliverables by or for any Person other than NTM or NTM Personnel.

9.2 Client Indemnification. Regarding any Proceeding brought by someone other than Client or someone other than one or more NTM Indemnitees against one or more NTM Indemnitees and that arises out of this agreement, any agreement between Client and a nonparty, or any bodily injury, death of any Person, or damages to real or tangible personal property resulting from Client's negligent or willful acts or omissions, Client shall indemnify those NTM Indemnitees against all Indemnifiable Losses arising out of that Proceeding, except to the extent that NTM negligently or intentionally caused those Indemnifiable Losses.

9.3 Indemnification Procedure.

(a) To be entitled to indemnification under section 9.1 or 9.2, the Indemnitee subject to any Nonparty Claim must promptly (and in any event no later than ten days after the Indemnitee first knew of that Nonparty Claim) notify the Indemnitor of that Nonparty Claim and deliver to the Indemnitor a copy of all legal pleadings regarding the Nonparty Claim. If the Indemnitee does not timely notify the Indemnitor of a Nonparty Claim, the Indemnitor will not be required to indemnify the Indemnitees under section 9.1 or 9.2 regarding that Nonparty Claim to the extent that the Indemnitor was prejudiced by that failure and the Indemnitor will not be required to reimburse the Indemnitee for any Litigation Expenses the Indemnitee incurred during the period in which the Indemnitee did not notify the Indemnitor.

(b) If the Indemnitor does not respond within ten days to a notice submitted by an Indemnitee under section 9.3(a), the Indemnitor will be deemed not to dispute the Nonparty Claim referred to in that notice.

(c) To assume the defense of a Nonparty Claim, the Indemnitor must notify the Indemnitee that it is doing so. Promptly afterward, the Indemnitor shall retain to represent it in the Nonparty Claim independent legal counsel that is reasonably acceptable to the Indemnitee.

(d) An Indemnitee may participate in the defense of a Nonparty Claim. An Indemnitee may defend a Nonparty Claim with counsel of its own choosing and without the Indemnitor participating if (1) the Indemnitor notifies the Indemnitee that it does not wish to defend the Nonparty Claim, (2) by midnight at the end of the tenth day after the Indemnitee notifies the Indemnitor of the Nonparty Claim the Indemnitor does not notify the Indemnitee that it wishes to defend the Nonparty Claim, or (3) representation of the Indemnitor and the Indemnitee by the same counsel would, in the opinion of that counsel, constitute a conflict of interest.

(e) The Indemnitor shall pay any Litigation Expenses that an Indemnitee incurs in connection with defense of the Nonparty Claim before the Indemnitor assumes the defense of that Nonparty Claim, except regarding any period during which the Indemnitee does not timely notify the Indemnitor of that Nonparty Claim. The Indemnitor will not be liable for any Litigation Expenses that an Indemnitee incurs in connection with defense of a Nonparty Claim after the Indemnitor assumes the defense of that Nonparty Claim, other than Litigation Expenses that the Indemnitee incurs in employing counsel in accordance with section 9.3(d), which Litigation Expenses the Indemnitor shall pay promptly as they are incurred.

(f) After the Indemnitor assumes the defense of a Nonparty Claim, the Indemnitor may contest, pay, or settle the Nonparty Claim without the Indemnitee's consent only if that settlement (1) does not entail any admission by the Indemnitee that it violated any Law or infringed the rights of any Person, (2) has no effect on any other claim against the Indemnitee, (3) provides as the claimant's sole relief monetary damages that are paid in full by the Indemnitor, and (4) requires that the claimant release the Indemnitee from all liability alleged in the Nonparty Claim.

Article 10. Limitation of Liability

10.1 Exclusion of Remote or Speculative Damages. Neither party will be liable for breach-of-contract damages that the breaching party could not reasonably have foreseen at the time of breach. Each party states that it has no knowledge of any special circumstances to which it is subject that would render reasonably foreseeable any damages that otherwise would not have been reasonably foreseeable, and it hereby waives any right to bring a claim against the other party for damages arising from any such special circumstances.

10.2 Cap on Damages. Except for (1) liability for an Indemnifiable Loss, (2) damages or liabilities to the extent covered by a party's insurance, or (3) a party's obligation to pay attorneys' fees and court costs in accordance with section 12.13, in no event will either party's aggregate liability arising out of or related to this agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, exceed the amounts paid or payable to NTM in the 12 months preceding the events giving rise to the claim.

Article 11. Non-Solicitation

11.1 No Hiring or Soliciting.

(a) During the Disclosure Period and for one year afterward, Client shall not, on Client's own account or for any other Person, directly or indirectly hire or solicit to be hired, as an employee or independent contractor or in any other capacity, any individual who is then an employee or independent contractor of NTM or was an employee or independent contractor of NTM at any time during the previous 12 months.

(b) This section 11.1 does not prohibit Client from hiring any individual who responds to an advertisement or announcement that is not directed specifically at employees of NTM or any individual recruited by a recruitment firm that did not specifically target employees of NTM. For purposes of this section 11.1, an announcement that Client makes on any LinkedIn group (or comparable online group) maintained by Client will constitute an announcement that is not directed specifically at employees of NTM.

(c) Client acknowledges that this section 11.1 provides NTM reasonable protection against a form of misuse of Confidential Information and that it would not be feasible to devise alternative protection that is less restrictive.

11.2 Liquidated Damages. If Client breaches section 11.1(a), Client shall, on demand, pay NTM a sum equal to one year's basic salary or the annual fee that was payable by NTM to that employee, worker, or independent contractor plus the recruitment costs incurred by NTM in replacing that Person ("Liquidated Damages Amount"). Client acknowledges that the actual damages likely to result from breach by Client of its obligations under section 11.1(a) are difficult to estimate on the date of this agreement and would be difficult for NTM to prove. The parties intend that Client's payment of the Liquidated Damages Amount would compensate NTM for any such breach. They do not intend for it to be a penalty for any such breach.

Article 12. Miscellaneous

12.1 Additional Documents. At the other party's written request, each party shall, and shall cause their respective Affiliates to, promptly provide the requesting party, or sign for the requesting party, any additional documents required to consummate the transactions provided for in this agreement.

12.2 Notices.

(a) A notice or other communication under this agreement will be effective if it is in writing and received by the intended recipient. It will be deemed to have been received as follows:

(1) if a paper copy is delivered by a delivery organization and the intended recipient or a Representative of the intended recipient signs for it, when it is signed for, as indicated in the records of the delivery organization;

(2) if a paper copy is delivered by a delivery organization that allows users to track deliveries and the intended recipient or a Representative of the intended recipient does not sign for it, on delivery as stated in the tracking system;

(3) if it is delivered by email, when it was sent; and

(4) if the intended recipient rejects or otherwise refuses to accept it, or if it cannot be delivered because of a change in address for which no notice was given, on that rejection, refusal, or inability to deliver.

(b) For a communication to be effective, it must be addressed using the information below for that party or any other information stated by that party in a notice in accordance with this section 12.2.

(c) If a communication is received after 5:00 p.m. on a business day at the location specified in the address for the intended recipient, or on a day that is not a business day at that location, that communication will be deemed to have been received at 9:00 a.m. on the next business day.

12.3 Entire Agreement. This agreement and any SoW entered into between the parties constitutes the entire understanding between the parties regarding the subject matter of this agreement. Each party acknowledges that because it has not relied on, and will not be relying on, any statements made by the other party regarding subject matter of this agreement, it will have no basis for bringing any claim for fraud in connection with any such statements.

12.4 No Transfer. Except with the other party's prior written consent, each party shall not transfer, including by merger (whether that party is the surviving or disappearing entity), consolidation, dissolution, or operation of Law, (1) any discretion granted under this agreement, (2) any right to satisfy a condition under this agreement, (3) any remedy under this agreement, or (4) any obligation imposed under this agreement. Any purported transfer in violation of this section 12.4 will be void.

12.5 No Third-Party Beneficiaries. Except for the indemnification obligations set out in sections 9.1 and 9.2, this agreement does not, and the parties do not intend it to, confer any rights or remedies on any Person other than the parties to this agreement.

12.6 Amendment; Waiver. To be effective, an amendment to this agreement must be in writing and signed by both parties. No waiver of any provision of this agreement will be effective unless it is in writing and signed by the party granting the waiver. No failure or delay in exercising any right or remedy under this agreement will operate as a waiver of that right or remedy. A waiver granted on one occasion will not operate as a waiver on future occasions.

12.7 Severability. The parties acknowledge that if a dispute between the parties arises out of this agreement or the subject matter of this agreement, they would want the court to interpret this agreement as follows:

(1) regarding any provision that it holds to be unenforceable, by modifying that provision to the minimum extent necessary to make it enforceable or, if that modification is not permitted by Law, by disregarding that provision;

(2) if an unenforceable provision is modified or disregarded in accordance with this section 12.7, by holding that the rest of the agreement will remain in effect as written;

(3) by holding that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable; and

(4) if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this agreement, by holding the entire agreement unenforceable.

12.8 Governing Law. Michigan law governs all adversarial proceedings arising out of this agreement or the Services or Deliverables.

12.9 Equitable Remedies. Each party acknowledges that (1) breach by either party of that party's obligations under this agreement has the potential to cause irreparable harm for which damages would be an inadequate remedy and (2) if any such breach occurs or is threatened and might cause irreparable harm, each party would want a court to grant the other party an injunction, a restraining order, or any other equitable remedy, in each case without posting a bond or other security and without proof of actual damages.

12.10 Arbitration.

(a) As the exclusive meanings of bringing adversarial proceedings to resolve any dispute arising out of this agreement or arising out of the Services or Deliverables (other than (1) any Proceeding initiated by NTM for recovery of any unpaid fees or expenses or (2) any Proceeding initiated by a party seeking an injunction, a restraining order, or any other equitable remedy to which that party is entitled under section 12.9), a party may demand that the dispute be resolved by arbitration administered by JAMS in accordance with either the JAMS Streamlined (for claims under $250,000) or the JAMS Comprehensive (for claims over $250,000) Arbitration Rules and Procedures, including the Optional Appeal Procedure. Judgment on any award rendered in any such arbitration may be entered in any court having jurisdiction.

(b) Any arbitration begun in accordance with this section 12.10 must be conducted by one arbitrator with expertise in matters involving managed information technology services.

(c) An arbitration begun in accordance with this section 12.10 must be conducted virtually by Zoom (or similar software) or, if virtual arbitration is not available, in Oakland County, Michigan.

(d) The arbitrator must not award punitive damages in excess of compensatory damages. Each party hereby waives any right to recover any such damages in any arbitration.

12.11 Jurisdiction. If either party commences a proceeding seeking an injunction, a restraining order, or other equitable remedy to which that party is entitled under section 12.9, or if either party commences a proceeding seeking to enter judgment on an award rendered in an arbitration in accordance with section 12.10 or if NTM commences a proceeding seeking to recover unpaid fees or expenses, that party may bring that proceeding in the United States District Court for the Eastern District of Michigan or in a state court of Michigan. Each party hereby waives any claim that any proceeding brought in accordance with this section 12.11 has been brought in an inconvenient forum or that the venue of that proceeding is improper.

12.12 Recovering Expenses. In an adversarial proceeding between the parties arising out of this agreement or the subject matter of this agreement, the prevailing party will be entitled to recover from the other party, besides any other relief awarded, all expenses that the prevailing party incurs in those proceedings, including legal fees and expenses.

12.13 Force Majeure.

(a) If a Force Majeure Event prevents a party from complying with any one or more obligations under this agreement, that inability to comply will not constitute breach if (1) that party uses reasonable efforts to perform those obligations, (2) that party's inability to perform those obligations is not due to its failure to (A) take reasonable measures to protect itself against events or circumstances of the same type as that Force Majeure Event or (B) develop and maintain a reasonable contingency plan to respond to events or circumstances of the same type as that Force Majeure Event, and (3) that party complies with its obligations under section 12.13(c).

(b) In this agreement, "Force Majeure Event" means, for a party, any event or circumstance, whether or not foreseeable, that was not caused by that party (other than a strike or other labor unrest that affects only that party, an increase in prices or other change in general economic conditions, a change in Law, or an event or circumstance that results in that party's not having sufficient funds to comply with an obligation to pay money) and any consequences of that event or circumstance.

(c) If a Force Majeure Event occurs, the noncomplying party shall promptly notify the other party of occurrence of that Force Majeure Event, its effect on performance, and how long the noncomplying party expects it to last. Afterward the noncomplying party shall update that information as reasonably necessary. During a Force Majeure Event, the noncomplying party shall use reasonable efforts to limit damages to the other party and to resume its performance under this agreement.

The parties are signing this agreement on the date stated in the introductory clause.