Master Subscriptions, Services Agreement and Terms of Engagement

Master Subscriptions, Services Agreement and Terms of Engagement

This Master Subscriptions, Services Agreement and Terms of Engagement is between TQINet, Inc., an Ohio Corporation (“TQI”), and Client (“CLIENT”).

Background

This master subscription and services Agreement (the “Agreement”), the relevant terms of the Documentation, and any executed Orders and/or SOWs and/or PCRs between the parties, are incorporated herein and shall govern the provision of the Services. CLIENT and its Affiliates may place orders under this Agreement by submitting separate Order(s), SOW(s) and/or PCR(s). This Agreement shall commence on the Effective Date of CLIENT’S first executed Order(s), SOW(s) and/or PCR(s) (“Effective Date”) and will continue until otherwise terminated in accordance with Section 12 below.

Accordingly, the parties agree as follows:

1.      Definitions.  Terms defined in the preamble have their assigned meanings, and the following Terms have the meanings assigned to them.

1.1.       6-Sig” means six sigma processes.

1.2.       Account” means a description of an event or experience. A CLIENT may have an Account with TQI when they sign a formal Agreement. An End User may have an Account with a CLIENT when they form a relationship.

1.3.       “Acceptance Agreement” means an Agreement utilized when TQI fulfills a complete or partial deliverable as agreed upon in a counter signed SOW and/or PCR which is considered to be a purchase order by the Uniform Commercial Code or UCC.

1.4.   "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes hereof, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

1.5.       Agile” means Agile Development Methodology.

1.6.       “ALLOWANCES” means Product, Service and/or Package, e.g., a combination of product(s) and service(s) allowances are used to aid in determining a project estimate. This provides CLIENTs with a rough order of magnitude budget so they can determine feasibility for their project. Allowances may be upgrades through a project change request (PCR).

1.7.       API” means application programming interface.

1.8.       AskEVA” means content and design support.

1.9.   Authorized Contractors” means independent contractors, licensors or subcontractors that assist TQI in the delivery of the Services.

1.10.    “BPS” means BERACHA payment solutions. BPS is the sole processor of funds for all TQI applications.

1.11.    CFO” means a shared consultant with responsibilities and expertise like a chief financial officer.

1.12.    CIO” means a shared consultant with responsibilities and expertise like a chief information officer.

1.13.    CLIENT” means a person or organization using the Services of TQI.

1.14.    CLIENT Data” means all data that is structured with a highly defined degree of organization, which has been received from CLIENT, CLIENT’S agents, employees, constituents, donors, CLIENTs, contractors and staff throughout the duration of the Agreement. This structured data may include text, art, photography, audio, video, records, files, images, graphics, reports, form content and other content and material, in any format, that are submitted, stored, posted, displayed, transmitted or otherwise used with the Subscription Services.

1.15.    CMO” means a shared consultant with responsibilities and expertise like a chief marketing officer.

1.16.    CMS” means content management system.

1.17.    “COLLABORATION” and “COLLABORATIVE DESIGN” means the action of CLIENT working with TQI to produce or create a design and/or artistic work made for hire under the terms of this agreement.

1.18.    Compliance” is either a state of being in accordance with established guidelines or specifications, or the process of becoming so. Compliance can also encompass efforts to ensure that organizations are abiding by both industry regulations and government legislation.

1.19.    “CONTENT” means the raw images and/or data not influenced by an editor, content marketing, artistic design, creative expression, the deliberate invocation of audience feelings and the intentional psychological connections made with users.

1.20.    “CONTEXT” means the creative design and intentionality of applying raw content and executing the desired impact with users as stated in Section 7.

1.21.    COO” means a shared consultant with responsibilities and expertise like a chief operations officer.

1.22.    COTS” means commercial-off-the-shelf or commercially available off-the-shelf. COTS products are packaged solutions which are then adapted to satisfy the needs of the purchasing organization, rather than the commissioning of custom-made or bespoke, solutions. COTS purchases are alternatives to custom software or one-off developments. Although COTS products can be used out of the box, in practice the COTS product must be configured to achieve the totality of the needs of the business and integrated to existing organizational systems, preferences and business rules. COTS software is specifically designed to provide approximately 80% – 95% of a CLIENT’S need whereby significantly saving costs associated with customization.

1.23.    CPE” means a shared consultant with responsibilities and expertise like a chief process engineer.

1.24.    CPM” means center point management.

1.25.    CRM” means (i) CLIENT relationship management or (ii) constituent relationship management.

1.26.    CSO” means a shared consultant with responsibilities and expertise like a chief security officer.

1.27.    CTQ” means critical-to-quality.

1.28.    DaaS means Design-as-a-Service. Design services provide custom or semi-custom design services in packages which all but eliminate the up-front financial load and budget drain in favor of expensing the costs associated with the work over 24 or 30 months depending upon the package chosen. All work is accomplished and approved but payment is amortized based upon the plan. At the conclusion of the plan, a new and fresh design is created which replaces the old (expired) design, whereby keeping the site fresh and updated. All packages are uniquely customized to CLIENT’S specifications and are governed by Copyright law. CLIENT may choose to purchase Copyrights optionally. CLIENT does not own the product but uses it for a term and has no ownership therein.

1.29.    “DART” means digitally annotated research and training. DART is a formal process utilized to gather and assess CLIENT needs and requirements through collaboration and visualization. When a DART is completed and accepted by CLIENT, it establishes a simple, visual and legal understanding of deliverables, projected costs, testing criteria, training plan, acceptance and approval criteria for work completed.

1.30.    Data Center Region” refers to the geographic region(s) in which the CLIENT Data is housed.

1.31.    “Deliverable” means any work product, deliverables, programs, interfaces, modifications, design, configurations, reports, or documentation developed or delivered in the performance of Managed Services, Professional Services, Programming Services, Design Services, and Support Services.

1.32.    Documentation” means TQI’s product guides and other end user documentation for the SaaS products, applications and programs available to CLIENTs online.

1.33.    Emerging Requirements. Means requirements not detailed or found when a project begins, but which are discovered during the project work and are added via PCR.

1.34.    eNews” means eNewsletter, eBlast and blog support.

1.35.    End User” means any person intended to use a technology product

1.36.    ER” means emergency response.

1.37.    FRD” means feasibility, research and discovery.

1.38.    HaaS” means Hardware as a Service, a leased usage of certain hardware products not owned by CLIENT.

1.39.    IDEATION” means the formation of ideas or concepts.

1.40.    IM” means instant messaging.

1.41.    INSPIRATION” means the process of being mentally and/or emotionally stimulated to do or feel something, especially do something creative.

1.42.    IT” means Information Technology

1.43.    iVOC” means indirect voice of the CLIENT.

1.44.    JVI” means Java Virtual Machine.

1.45.    M & S” means maintenance and support.

1.46.    NPI” means new product introduction.

1.47.    PCR” means project change request.

1.48.    PCRx” means personal computer prescription.

1.49.    POS” means point of sale.

1.50.    “Professional Services” means fee-based migration, implementation, training or consulting services that TQI performs as described in an Order and/or SOW(s) and PCR(s).

1.51.    “RETAINER” means a fee involving an amount of money paid in advance by a CLIENT to assure access and pricing for specific services such as consulting, programming or design for an extended amount of time. Retainer packages may provide specific services or services in general. They may provide special benefits and discounts based upon hours, volume and required skills or experience. Retain limits and rules may apply upon package selected by CLIENT and will be addressed in an associated SOW and/or PCR.

1.52.    RFID” means radio frequency identification.

1.53.    RRS” means rapid response Service.

1.54.    SaaS” means Software as a Service, a leased usage of certain programs, products and/or applications on a the TQI Platform not owned by CLIENT. This service is similar to a lease of a car. CLIENT does not own the product but uses it for a term and has no ownership therein.

1.55.    Sandbox” means a non-production instance of a combination of Software, server(s) and database(s) used for development, testing, and pre-production staging.

1.56.    Seat” means individual Users.

1.57.    SECaaS” means security as a Service, a leased usage of certain security products not owned by CLIENT. CLIENT does not own the product but uses it for a term and has no ownership therein.

1.58.    SEO” means search engine optimization.

1.59.    Services” means the Software & Platform Subscription Services, Professional Services, Managed Services, Design Services and/or Support Services that CLIENT may purchase under an ORDER(s) and/or SOW(s) and PCR(s). CLIENT does not own the product but uses it for a term and has no ownership therein.

1.60.    Software” means the general term for the various kinds of programs, products and/or applications used to operate computers and related devices.  Unless otherwise stated, Software as relating to this Agreement is not owned by CLIENT; rather, CLIENT, as a licensee, has a license to the Software as a SaaS offering.

1.61.    SOW” means an order or statement of work which specifies the services to be provided by TQI and CLIENT including any addenda and supplements thereto.

1.62.    SRS” means the Software Requirements Specifications document.

1.63.    SSL” means secure socket layer.

1.64.    SSO” means single sign on.

1.65.    “Subscription or Subscription Services” means a pricing model that allows a CLIENT to subscribe to IT systems and services for a specific period at a set price. Subscriptions may be for but not limited to IT infrastructure such as servers, platform, security layers, consulting, design, programming and software. It consists of a cloud platform and/or hybrid platform available to TQI’s CLIENTS via the applicable CLIENT logins and/or associated services, as ordered by CLIENT under an Order and/or SOW(s) and PCR(s), as applicable.

1.66.    “Subscription Term” means the term of Subscription services purchased by CLIENT which shall commence on the start date specified in the applicable Order and/or SOW(s) and PCR(s) and continue for the subscription term specified therein and any renewals thereto.

1.67.    “Support  Services”  means the level of support services purchased by CLIENT pursuant to an Order and/or SOW(s) and PCR(s). Support Services may be provided through purchased will-call services or by purchasing a managed services support plan.

1.68.    “Testing and Testing Blocks” means a routine utilized by TQI / CLIENT for testing functions, features, configurations and data, system integrations and more. Testing is also utilized by CLIENT. TQI includes a basic, standard allowance referred to as a block for unit testing and final testing of compiled work prior to handoff of software to CLIENT for their testing.

1.69.    “Third-Party” means a company or individual who may be indirectly involved but is not a principal party to a contract. In computer programming, a third-party software component is a reusable software component developed to be either freely distributed or sold by an entity other than the original vendor of the development platform. Common third-party software includes macros, bots, servers, and scripts which are run as add-ons for popular development of software.

1.70.    T & L” means travel and living expenses.

1.71.    T & M” means the time and materials expenses needed to complete the services.

1.72.    TOE” means terms of engagement.

1.73.    “TPS” means TQI payment solutions. TPS is the sole processor of funds for all TQI applications.

1.74.    Trial Services” means any TQI product, service or functionality that may be made available by TQI to CLIENT to try at CLIENT’S option, at no additional charge, and which is designated as “beta,” “trial,” “non-GA,” “pilot,” “developer preview,” “non-production,” “evaluation,” or by a similar designation.

1.75.    UDF” means user defined fields.

1.76.    User” means any person intended to use a technology product or service.

1.77.    VOC” means direct voice of the CLIENT.

2.      Scope of Services.  CLIENT shall hire TQI for specific Services as noted in an Order and/or SOW(s) and PCR(s) for services such as, but not limited to:

2.1.   IT Services

2.2.   IT Infrastructure, Software and Systems

2.3.   Managed Services / Cloud Services

2.4.   Professional Services/Consulting/Shared or Fractional Services

2.5.   Programming Services

2.6.   Design Services

2.7.   Communications/SEO

2.8.   Marketing/Branding

2.9.   Support Services

2.10.  Financial & Funding Services

3.      Work and Compensation. CLIENT shall compensate TQI for IT systems and services in the following manner:

3.1.   Billable Work.  The following activities are non-exclusive examples of billable work and TQI has factored these into an estimate provided in an Order and/or SOW(s) and PCR(s):

3.1.1. phone time to discuss the project;

3.1.2. email time to discuss the project;

3.1.3. meetings regarding the project;

3.1.4. travel to / from CLIENT facilities or meeting places;

3.1.5. project planning, managing and status reporting;

3.1.6. designing, configuring, customizing, programming and testing the solution(s);

3.1.7. producing required documentation, training, support; and

3.1.8. Software, server(s), database(s) aggregated and used for non-production Sandbox instances of SaaS subscriptions while in development and/or testing.

3.1.9. excessive or increased usage of data center throughput, storage, backups,

3.1.10. Labor necessary for applying patches and upgrades with the associated testing critical to success and data restorations due to CLIENT and/or third-party synchronization losses or deletions.

3.2.   Provision of Subscription Services. TQI will make the subscription services available to CLIENT pursuant to this Agreement, the documentation and the relevant Order and/or SOW(s) and PCR(s) during the subscription term, solely for CLIENT’S internal business purposes. TQI’s affiliates and its authorized contractors may perform certain aspects of the services provided that TQI remain fully liable for same and responsible for ensuring that any of TQI’s obligations under this Agreement performed by its affiliates and its authorized contractors are carried out in accordance with this Agreement. CLIENT’S use of the subscription services includes the right to access all functionality available in the subscription services during the subscription term.

3.2.1.In the event of a critical security threat, TQI may suspend and/or alter materially functionality available in the subscription services during the subscription term with or without notice. So long as TQI does not materially degrade the functionality, as described in the documentation of the subscription services during the applicable subscription term (i) TQI may modify the systems and environment used to provide the subscription services to reflect changes in technology, industry practices and patterns of system use, and (ii) update the documentation accordingly. Subsequent updates, upgrades, enhancements to the subscription services made generally available to all subscribing CLIENTs will be made available to CLIENT at no additional charge, but for labor associated with installation, implementation, testing and migration to CLIENT’S production.

3.2.2.The purchase of Subscription Services is not contingent on the delivery of any future functionality or features. New features, functionality or enhancements to the subscription services may be marketed separately by TQI and may require the payment of additional fees. TQI will determine, in its sole discretion, whether access to such new features, functionality or enhancements will require an additional fee.

3.3.   Trial Services. If CLIENT registers or accepts an invitation for trial services, including through TQI’s website, or executes an Order and/or SOW(s) and PCR(s) for the same, TQI will make such trial services available to CLIENT on a trial basis, free of charge, until the earlier of (a) the end of the free trial period for which CLIENT registered to use the applicable trial services, or (b) the end date specified in the applicable Order and/or SOW(s) and PCR(s). Trial services are provided for evaluation purposes and not for production use. CLIENT shall have sole responsibility and TQI assumes no liability for any CLIENT data that CLIENT may choose to upload on the trial services. Trial services may contain bugs or errors and may be subject to additional terms. TRIAL SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. TQI may, in its sole discretion, discontinue trial services at any time.

3.4.   Use of Orders, SOWs, PCRs, Allowances and Subscriptions.  Orders and/or SOWs and/or PCRs may contain allowances and retainers which are utilized toward the fulfillment of deliverable(s). These are paid out either as a lump sum upfront or as a subscription. Subscriptions allow CLIENTs to receive partial or all deliverable(s) in advance while paying for the work over a period of time. Order and/or SOW(s) and PCR(s) will expressly state payment terms and deliverables within. The purpose is to aid the CLIENT in eliminating upfront costs, e.g., capital expenditure, in favor of expensing the cost of the deliverable(s) over an agreed upon timeframe. Payment in full is expected and agreed upon by both parties even in the event of a dispute or termination of Agreement without exception.

3.4.1. Allowances and retainers may be created in the form of packages. These are paid out either as a lump sum upfront or as a subscription. Some packages will provide specified deliverables while others will not. Examples include:

3.4.1.1. Design packages are allowances that provide different levels of configuration, customization and/or personalization to satisfy a CLIENT’S needs. In the event a CLIENT desires a custom deliverable outside the selected package, a PCR may be created to account for those additional deliverables.

3.4.1.2. Programming and consulting packages are discounted retainers that make available prioritized services applied toward fulfilling any number of deliverables up to a limit usually associated with human resources, time and materials. The limits of these services are determined by the package purchased. In the event a CLIENT desires a custom deliverable outside the selected package limits, a PCR may be created to account for those additional deliverables.

3.4.1.3. Support packages are allowances that provide technical maintenance and support of products and systems to satisfy a CLIENT’S needs. Support packages may have restrictions, are product specific and are not all inclusive unless otherwise stated in an Order and/or SOW(s) and PCR(s). Product support packages may be combined in order to provide comprehensive support for many, most or all CLIENT technical needs excluding third-party software. Unless otherwise stated in an Order and/or SOW(s) and PCR(s), all support packages will provide support during standard working hours and will not include after hours, weekend, holiday or emergency support.

3.4.2.(PCRs) Change Orders. In the event changes to an Order and/or SOW(s) and PCR(s) are desired, those changes shall become effective only when, fully documented in a written change order (each a “PCR”) signed by duly authorized representatives of the parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule. PCRs shall be deemed part of, and subject to, this Agreement.

3.5.   Third-Party Marketplace. As part of the subscription services, TQI may provide access to a third-party marketplace solely as an accommodation to CLIENT. CLIENT may choose to use any, all or none of the offerings on such third-party marketplace at its sole discretion. CLIENT’S use of any offering on a third-party marketplace is subject to the applicable provider’s terms and conditions and any such terms and conditions associated with such use are solely between CLIENT and such third-party provider. TQI does not provide any support services for third party marketplace products and services.

3.6.   CLIENT’S Provision of Information.  TQI’s estimates provided in each Order and/or SOW(s) and PCR(s) are based on information CLIENT has supplied to TQI. TQI has made these estimates in good faith. TQI’s estimates may increase or decrease as agreed upon work changes, increases or falls short of or outside of the anticipated scope of work.

3.6.1. CLIENT will designate in each Order and/or SOW(s) and PCR(s) an individual who will be the primary point of contact between the parties for all matters relating to the services to be performed thereunder. CLIENT will cooperate with TQI, will provide TQI with accurate and complete information, will provide TQI with such assistance and access as TQI may reasonably request, and will fulfill its responsibilities as set forth in this Agreement and the applicable Order and/or SOW(s) and PCR(s). If applicable, while on CLIENT premises for services, TQI personnel shall comply with reasonable CLIENT rules and regulations regarding safety, conduct, and security made known to TQI.

3.6.2. Acceptance Agreements require a CLIENT to sign a formal statement which signifies they have found the deliverable to be as stated in the corresponding Order and/or SOW(s) and PCR(s). It is the responsibility of the CLIENT to test and/or otherwise accept the deliverable within (5) five business days. In the event a CLIENT is unable to test and/or accept within this stated period, a CLIENT may request, in writing, an additional period of up to (10) ten business days to do so.  At the end of the initial testing period and/or additionally requested time of up to (10) ten additional business days, if a CLIENT has failed to sign the acceptance Agreement or create a punch list signifying a failed deliverable(s) and the CLIENT retains the deliverable without PROVIDING evidence that some or all the deliverables have been rejected; TQI will automatically consider the Agreement officially accepted due to passing of reasonable and agreed upon time. There will be no rejection later by CLIENT except for as stated in accordance with warranty terms in SECTION 5.3.

3.7.   Additional Projects.  Additional projects, emerging requirements or work may be developed or invoiced in conjunction with this Agreement and as authorized by a signed Order and/or SOW(s) and PCR(s) or by verbal phone conversation, e-mail or other communication methods authorized by CLIENT when support is requested. All PCRs will be created and subject to a 1-time processing fee of $50.00.

3.7.1.Fees. CLIENT shall pay all fees specified in each Order and/or SOW(s) and PCR(s) and any applicable additional fees if CLIENT exceeds the allotted capacity or other applicable  limits specified in the Order and/or SOW(s) and PCR(s). Except as otherwise specified herein or in an Order and/or SOW(s) and PCR(s) (i) fees are payable in United States dollars, (ii) fees are based on services purchased, regardless of usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, (iv) all services shall be deemed accepted upon delivery if an acceptance agreement has not been signed by CLIENT within (5) five business days or CLIENT has requested an additional (10) ten business days (see 3.6.2), and (v) the subscription services purchased cannot be decreased during the relevant subscription term.  CLIENT shall reimburse TQI for out-of-pocket expenses incurred by TQI in connection with its performance of services. TQI will provide CLIENT with reasonably detailed invoices for such expenses. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.

3.8.   Emerging Requirements. CLIENT acknowledges that TQI may encounter system conditions which are unforeseen, not contemplated and which are not incorporated into the negotiated price of an Order and/or SOW(s) and PCR(s). If TQI encounters such a system condition, TQI may contact CLIENT within (3) business days of learning of such condition. Thereafter, TQI may make all reasonable efforts to estimate the increased cost of a deliverable associated with the unforeseen condition. CLIENT acknowledges and agrees that additional costs may be incurred by CLIENT as a result of the unforeseen condition. CLIENT agrees to execute a PCR for any additional work and costs associated with the condition.

3.9.   Allowances. Allowance items specified on an Order and/or SOW(s) and PCR(s. are the only allowances that the parties have agreed to use while working towards a completed project and work. CLIENTs typically do not, at the date of an Order and/or SOW(s) and PCR(s) Agreements, comprehend all the details of work they need. Therefore, TQI, in good faith, estimates the cost and makes use of allowances to do this. In the event the cost of any deliverable exceeds the amount of an allowance, the parties agree that the excess cost of any selected item(s) will automatically become an extra and a PCR for the excess cost may be executed by the parties, without invalidating this Agreement. In the event the cost of a selected item is less than the amount of the allowance for the item, the amount not spent on that allowance item(s) will automatically become a credit and a PCR for the credit may be executed by both parties. Any and all changes, extras or deletions desired by CLIENT, will be expressly authorized in writing pursuant to a written PCR and signed by TQI and the CLIENT. The PCR will specify the change requested and the additional cost or credit to the CLIENT resulting from such change, extra or deletion. Only a TQI representative with a Director Status or higher has authority to sign a PCR on behalf of TQI.  All PCRs will be created and subject to a 1-time processing fee of $50.00. CLIENT acknowledges that PCRs may increase the time for completion.

3.10. FRD. Unless otherwise stated, feasibility, research and discovery needed for estimates will be invoiced at the lowest rate(s), or an established preferred CLIENT rate and invoiced through AskEVA Support Services.

3.11. Fees and Payments.  TQI shall send CLIENT an electronic invoice on a monthly basis, net 20 days, for approved work-related service and support projects. TQI will invoice CLIENT subscription(s) and product invoices separately from support work. CLIENT shall pay subscription payments no later than the 1st day of each month with or without the presence of an invoice per all Order and/or SOW(s) and PCR(s). All invoices are electronic. All payments shall be made via ACH and/or credit card and/or debit card. Payment by paper check is discouraged and must be approved in advance by TQI. If TQI approves payment by paper check, approved payment from CLIENT shall be accompanied by an additional $25.00 special processing fee per check. CLIENT may request TQI to send a paper invoice by USPS for a fee of $25.00 per invoice.

3.11.1.   Unless special terms are stated within a SOW and/or PCR, payment in full is to be made upon delivery for acceptance, as opposed to, delivery into production.

3.11.2.   Taxes. Fees for Services exclude all sales, value-added and other taxes and duties imposed with respect to the sale, delivery, or use of any product or services covered hereby. Unless CLIENT provides a valid, signed certificate or letter of exemption for each respective jurisdiction of its tax-exempt status, CLIENT is responsible for payment of all taxes, levies, duties, assessments, including but not limited to value-added, sales, use or withholding taxes, assessed or collected by any governmental body (collectively, "Taxes") arising from TQI’s provision of the services hereunder, except any taxes assessed on TQI’s net income. If TQI is required to directly pay or collect taxes related to CLIENT’S use or receipt of the services hereunder, CLIENT agrees to promptly reimburse TQI for any amounts paid by TQI.

3.11.3.    Change in Price of Services.  Price adjustments may be made at the end of term. Subscription renewals are automatically subject to annual price adjustments.

3.11.4.   Change in Service Subscription Packages.  TQI may change or otherwise adjust subscription packages to anticipate market trends, CLIENT needs, competitive research and general business practices. TQI will make every reasonable effort to reconcile the old (expired) packages with new package and subscription offerings but upgrades or downgrades may result in price, functionality and/or service adjustments. Package names and branding may or may not change along with the package adjustments. TQI will provide a clear pathway to accommodate service subscription package changes with CLIENT at key points within our relationship. These points may be at the time of contract renewal.

3.11.5.   End of Life and Product Version Upgrades. TQI will provide advance notice of product end of life deadlines and associated version upgrades. Minor upgrades N.x - N.x.x.x will be provided at no cost except for labor and set-up to make the changes and upgrades. Major upgrades N.x – M.x (where M is a higher number than N) may have an increase or decrease insubscription fees in addition to labor and set-up needed to make the changes. Determination of a product’s end of life may be determined by TQI and/or 3rd parties. Under no circumstances will a CLIENT be permitted to utilize a product beyond the end of life without written permission by TQI.

3.11.6.   Work Beyond Standard Hours.  TQI shall use reasonable efforts to forecast and plan well for resource management to prevent the rearranging of work schedules and extension of work beyond standard hours to meet CLIENT’S demands.  If for reasons beyond TQI’s control RRS are needed, then CLIENT shall agree to and pay additional charges associated with RRS if this is preferred over a delay in work.

3.11.7.   Travel and Living Expenses.  CLIENT shall reimburse TQI for all T & L incurred while providing services, including but not limited to airfare, ground transportation, hotel, meal costs, and other miscellaneous travel expenses, all in accordance with the TQI Travel and Living Policy which is available at: tqi.solutions/travel.

3.12. Late or Nonpayment; Interest.  If CLIENT fails to pay any amounts due under this Agreement by the due date, in addition to any other rights or remedies it may have under this Agreement or by matter of law (i) TQI reserves the right to suspend the subscription services upon thirty (30) days’ notice, until such amounts are paid in full, and (ii) TQI will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until CLIENT pays all amounts due; provided that TQI will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and CLIENT is cooperating diligently to resolve the issue as stated in the TQI Dispute Policy at: tqi.solutions/dispute

3.13. Form of Payment.  CLIENT shall make all payments in U.S. Dollars. CLIENT shall pay the balance of its undisputed invoices by check, ACH and/or credit card. CLIENT shall make checks out to: The TQI, and mail to: TQI, 1165 Beargrass Way, Cincinnati, Ohio 45039. In the event CLIENTs wish to pay via check, a special processing fee of $25.00 will be charged per check.

3.14. Collections; Dispute Resolution.  Any checks received from CLIENT may be accepted on account and with full reservation of rights of TQI to collect any balance, notwithstanding any contrary legend or statement contained on or accompanying checks.  All invoices are subject to TQI payment and collection policies which are available at: tqi.solutions/collections.  Dispute resolution policies are available at: tqi.solutions/dispute.  TQI may change either or both policies without notice to CLIENT.  By using TQI services, CLIENT and every user unconditionally accepts the Terms of these policies.

3.15. Chargebacks. If CLIENT contacts their bank or credit card company to decline, chargeback or otherwise reverse the charge of any payable fees to TQI (“Chargeback”), TQI may automatically terminate the CLIENT’S account. If CLIENT has questions about a payment made to TQI, we encourage CLIENT to contact [email protected]. TQI reserves our right to dispute any chargebacks.

4.      Project Changes and Delivery.  The following provides a detailed process to follow if a change to an Order and/or SOW(s) and PCR(s) is desired and potential adjustments to deliverable dates:

4.1.   TQI and CLIENT must collaborate to create an Order and/or SOW(s) and PCR(s) which communicates the need for a change order. TQI and CLIENT must describe in the Order and/or SOW(s) and PCR(s) the change, the rationale for the change and the known effect the change will have on the overall project, including the possible extension of deadline, price and associated risks. The verbiage or title to these documents may change over time without notice.

4.2.   A TQI representative(s) will engage in an FRD and/or DART at the CLIENT’S request. Upon sufficient time, the CLIENT will review the proposed change(s) and approve or reject them. If the parties agree to the change(s) after sufficient analysis, both parties must sign a written change order (PCR) to authorize scheduling and implementation of the change.

4.3.   Communications.  All work, activity and project development require full cooperation and timely responses both by TQI and by a CLIENT project leader.  TQI shall provide services to CLIENT with professional diligence and skill in a timely manner using a best practices approach and process to project management and communications. Programming progress and compliance to deadlines may be adversely affected by CLIENT’S responsibility to fulfill and deliver detailed data and business rules within a timely manner that have been determined to be business critical.  All data, business rules and/or security roles and permissions not provided to TQI by project start date will be determined to be late. This may require an extension to the agreed upon deadlines or adjustments to price.

4.4.   Testing of Modules.  TQI will deliver projects to CLIENT after utilizing a testing block for basic unit and module testing. Additional testing of no more than (5) five hours will be conducted by TQI for quality assurance purposes which will be made once the deliverable is placed into staging. This testing block is considered to be basic testing and is included in CLIENT’S project costs. TQI may allow CLIENT access to sandbox and/or alpha and/or beta version exposure for testing purposes which may precede production deliverables.

4.5.   A signed formal acceptance document is required to move from each phase of work. The primary CLIENT contact is a full-time employee of the CLIENT organization or a full-time employee equivalent empowered to make decisions regarding project scope, timeline, and deliverables. TQI may make recommendations to CLIENT for the purchase of additional testing blocks depending upon the complexity of the deliverable(s). CLIENTs may or may not elect to follow recommendations. The use of complex applications without recommended, thorough and adequate testing will threaten the success of the application. CLIENT accepts total responsibility for the failure of applications which do not undergo recommended testing. 

4.6.   Resource Turnover.  Consistency of project teams for both CLIENT and TQI is needed to meet project deadlines and TQI’s budget estimates.  If resource turnover occurs, then TQI may make necessary adjustments to project timelines and the budget estimate without penalty from CLIENT.

4.7.   Order and/or SOW(s) and PCR(s) do not reflect T & L costs which will be added to projects in the event T & L is necessary.

4.8.   Any FUNCTIONAL, PROCESS, WORKFLOW, CONFIGURATION, BUSINESS RULE(S), SEURITY ROLES AND PERMISSIONS OR CUSTOMIZATION changes to the DEFAULT COTS functionality  IS TO BE described in an SOW or other related attachments AND must be documented and submitted as a SOW AND/OR PCR to an AUTHROIZED employee, and may result in additional costs and/or delays in delivery schedule.

4.9.   From time to time, some important or business-critical details become available after a budgeted estimate has been established and accepted. Both TQI and CLIENT recognize and agree to good faith communications and best practices to reduce such instances. Both TQI and CLIENT recognize the implied covenant of good faith and fair dealing as a general presumption that they will deal with each other honestly and fairly, to preserve the right of the other party or parties to receive the benefits of the contract. Both TQI and CLIENT recognize the POTENTIAL existence of unforeseen business-critical details KNOWN AS “EMERGING REQUIREMENTS” to be an unfortunate fact of life which is an integral part of the human element meaning that neither party is omniscient. This lack of omniscience does not negate either party’s good faith efforts to communicate well. Neither does it constitute bad faith, or an intentional dishonest act intended to mislead or violate basic standards of honesty in dealing with others.

4.10.  In the event important or business-critical DETAILS OR EMERGING REQUIREMENTS are discovered during programming, testing, MIGRATION TO PRODUCTIONT OR POST-PRODUCTION, TQI and CLIENT may both be required to invest additional hours into FRD. A PCR will be created to address this matter for the event. Discovery of new information not PREVIOUSLY established at time of the agreed upon budgeted estimate may impact both schedule and price for delivery.

4.11.  All Agreements are based on assumptions and information provided to TQI in various meetings with CLIENT, TQI employees, contractors and/OR members of the TQI Forte CONSULTING Group. They are received and executed in good faith.

5.      Representations, Warranties, Liabilities and Disclaimers.

5.1.   CLIENT represents and warrants to TQI as follows:

5.1.1. CLIENT’S Ownership of Content.  CLIENT owns, or has permission from the rightful owner to use, all elements of text, graphics, photos, designs, trademarks, or other artwork it furnishes to TQI for inclusion in web pages. CLIENT hereby grants TQI, its affiliates and applicable authorized contractors all necessary rights to host, use, process, store, display and transmit CLIENT data and CLIENT applications solely as necessary for TQI to provide the services in accordance with this Agreement. Subject to the limited licenses granted herein, TQI acquires no right, title or interest from CLIENT or CLIENT licensors hereunder in or to CLIENT data and CLIENT applications, including any intellectual property rights therein.

5.1.2. CLIENT Data. CLIENT is responsible for its legal and regulatory compliance in its use of any subscription services and shall make TQI aware of any CLIENT Data processed, stored or transmitted through the subscription services for which regulations other than those set forth in this Agreement apply. If, in the course of providing subscription services, TQI agrees in writing to process such CLIENT Data and CLIENT has subscribed to any applicable subscription services, TQI shall process it only as permitted under this Agreement and in compliance with data protection legislation to which TQI is subject as a service provider. CLIENT may not assume any level of data workflow, storage, security, regulatory compliance or standards unless specifically agreed upon in an Order and/or SOW(s) and PCR(s).

5.1.3. CLIENT Representations & Warranties. CLIENT represents and warrants that (i) it has the legal authority to enter into this Agreement, and (ii) it will use the services in accordance with the terms and conditions set forth in this Agreement and in compliance with all applicable laws, rules and regulations.

5.1.4. Compliance with Applicable Law.  CLIENT has either (i) received all permissions and authorizations to use services and install any hardware or software for use in conjunction with services (including but not limited to monitoring, intercepting or transmitting to TQI or any third-party, any data or communication) as required under applicable law, or (ii) CLIENT’S use of the services does not require any such permission or authorization.

5.1.5. Compliance Mandate. TQI provides a Level I add-on service to utilize the standard tools on behalf of the CLIENT in the event a CLIENT seeks that service. Total and continuous compliance is not guaranteed in this Level I add-on service. TQI may provide Level II Compliance consulting and plans for maximum and continuous compliance in the event CLIENT seeks that service. CLIENT users involved in system interaction may threaten Compliance status by deviating standards using Level I tools and/or circumventing Compliance policies provided by Level II Compliance consulting. As a result of TQI’s inability to prohibit CLIENT users from deviating or circumventing as noted; TQI cannot guarantee continuous Compliance in some instances. It is the responsibility of the CLIENT to declare, request and possibly pay for specific Compliance requirements through a Level I or Level II TQI Compliance plan.

5.1.6. ADA Compliance. The Department of Justice (DOJ) published the Americans with Disabilities Act (ADA) Standards for Accessible Design in September 2010. These standards state that all electronic and information technology must be accessible to people with disabilities. TQI provides ADA Compliance tool sets for CLIENT to utilize to aid them in being ADA Compliant. TQI Provides a Level I add-on service to utilize the standard tools on behalf of the CLIENT in the event a CLIENT seeks that service. Total and continuous compliance is not guaranteed in this Level I add-on service. TQI may provide Level II ADA Compliance consulting and plans for maximum and continuous compliance in the event CLIENT seeks that service. CLIENT users involved in system interaction may threaten the ADA Compliance status by deviating ADA standards using Level I tools and/or circumventing ADA Compliance policies provided by Level II ADA Compliance consulting. As a result of TQI’s inability to prohibit CLIENT users from deviating or circumventing as noted; TQI cannot guarantee continuous ADA Compliance.

5.1.7. GDPR Compliance. The European Union (EU) published regulations which require businesses to protect the personal data and privacy of EU citizens for transactions that occur within EU member states. TQI provides GDPR Compliance tool sets for CLIENT to utilize to aid them in being GDPR Compliant as an optional add-on. TQI Provides a Level I add-on service to utilize standard tools on behalf of the CLIENT in the event a CLIENT seeks that service. Total and continuous compliance is not guaranteed in this Level I add-on service. TQI may provide Level II GDPR Compliance consulting and plans for maximum and continuous compliance in the event CLIENT seeks that service. CLIENT users involved in system interaction may threaten the GDPR Compliance status by deviating GDPR standards using Level I tools and/or circumventing GDPR Compliance policies provided by Level II GDPR Compliance consulting. As a result of TQI’s inability to prohibit CLIENT users from deviating or circumventing as noted; TQI cannot guarantee continuous GDPR Compliance.

5.1.8. CCPA Compliance. The California Consumer Privacy Act (CCPA) is a bill that enhances privacy rights and consumer protection for residents of California, United States. The CCPA becomes effective on January 1, 2020 and contains regulations which may require data reporting retroactive to January 1, 2020 by (6) six months in the event consumers or regulatory officials request the data. TQI Provides a Level I add-on service to utilize standard tools on behalf of the CLIENT in the event a CLIENT seeks that service. Total and continuous compliance is not guaranteed in this Level I add-on service. TQI may provide Level II CCPA Compliance consulting and plans for maximum and continuous compliance in the event CLIENT seeks that service. CLIENT users involved in system interaction may threaten the CCPA Compliance status by deviating CCPA standards using Level I tools and/or circumventing CCPA Compliance policies provided by Level II CCPA Compliance consulting. As a result of TQI’s inability to prohibit CLIENT users from deviating or circumventing as noted; TQI cannot guarantee continuous CCPA Compliance.

5.1.9. HIPAA Compliance. The Health Insurance Portability and Accountability Act (HIPAA) sets the standard for protecting sensitive patient data. TQI Provides a Level I add-on service to utilize standard tools on behalf of the CLIENT in the event a CLIENT seeks that service. Total and continuous compliance is not guaranteed in this Level I add-on service. TQI may provide Level II HIPAA Compliance consulting and plans for maximum and continuous compliance in the event CLIENT seeks that service. CLIENT users involved in system interaction may threaten the HIPAA Compliance status by deviating HIPAA standards using Level I tools and/or circumventing HIPAA Compliance policies provided by Level II HIPAA Compliance consulting. As a result of TQI’s inability to prohibit CLIENT users from deviating or circumventing as noted; TQI cannot guarantee continuous HIPAA Compliance.

5.1.10. DoD, DFARS and SRG Compliance. The Department of Defense (DoD) Cloud Computing Security Requirements Guide (SRG) provides a standardized assessment and authorization process for cloud service providers to gain DoD provisional authorization, so they can serve DoD CLIENTs. The Defense Federal Acquisition Regulation Supplement (DFARS) is a set of cybersecurity regulations that the Department of Defense (DoD) now imposes on external contractors and suppliers. TQI Provides a Level I add-on service to utilize standard tools on behalf of the CLIENT in the event a CLIENT seeks that service. Total and continuous compliance is not guaranteed in this Level I add-on service. TQI may provide Level II HIPAA Compliance consulting and plans for maximum and continuous compliance in the event CLIENT seeks that service. CLIENT users involved in system interaction may threaten the HIPAA Compliance status by deviating HIPAA standards using Level I tools and/or circumventing CCPA Compliance policies provided by Level II HIPAA Compliance consulting. As a result of TQI’s inability to prohibit CLIENT users from deviating or circumventing as noted; TQI cannot guarantee continuous HIPAA Compliance.

5.1.11. SSAE 16 Soc I, Soc II Compliance. SSAE 16 is largely an American standard, but it mirrors the International Standard on Assurance Engagements (ISAE) 3402. Similarly, SSAE 16 has two different kinds of reports. A SOC 1 Type 1 report is an independent snapshot of the organization's control landscape on a given day. A SOC 1 Type 2 report adds a historical element, showing how controls were managed over time. The SSAE 16 standard requires a minimum of six months of operation of the controls for a SOC 1 Type 2 report. SSAE 16 reporting can help service organizations comply with Sarbanes–Oxley's requirement (section 404) to show effective internal controls covering financial reporting. It can also be applied to data centers or any other service that might be used in the delivery of financial reporting. For reports that are not specifically focused on internal controls over financial reporting, the American Institute of Certified Public Accountants (AICPA) has issued an Interpretation under AT Section 101 permitting service auditors to issue reports. These reports will now be considered SOC 2 audits and focus on controls at a service organization relevant to security, availability, processing integrity, confidentiality, or privacy. To request a SSAE 16 Soc I, Soc II Compliance report, please contact TQI’s Consulting Services Team via [email protected].

5.1.12. PCI DSS Compliance. The Payment Card Industry Data Security Standard (PCI DSS) is a set of security standards designed to ensure that ALL companies that accept, process, store or transmit credit card information maintain a secure environment. TQI Provides a Level I add-on service to utilize standard tools on behalf of the CLIENT in the event a CLIENT seeks that service. Total and continuous compliance is not guaranteed in this Level I add-on service. TQI may provide Level II PCI DSS Compliance consulting and plans for maximum and continuous compliance in the event CLIENT seeks that service. CLIENT users involved in system interaction may threaten the PCI DSS Compliance status by deviating PCI DSS standards using Level I tools and/or circumventing PCI DSS Compliance policies provided by Level II PCI DSS Compliance consulting. As a result of TQI’s inability to prohibit CLIENT users from deviating or circumventing as noted; TQI cannot guarantee continuous PCI DSS Compliance.

5.1.13. Security Roles and Permissions. CLIENT acknowledges and accepts responsibility to define user roles, content permissions and any legal compliance associated therewith. While TQI will assist with these, in no way is TQI liable for failure to address the needs. Liability solely rests upon CLIENT to define and enforce all roles and permissions. In the event CLIENT fails to assign or create and communicate needs regarding security roles and responsibilities, all standard functionality will continue to exist and perform as designed with the COTS software. Security roles and permissions are configurations custom to CLIENT’S needs which may be impacted by geographical location. Without CLIENT’S express direction, TQI has neither information, responsibility nor obligation to adjust COTS software.

5.2.   TQI represents and warrants to CLIENT as follows:

5.2.1. TQI Representations & Warranties. TQI represents and warrants that (i) TQI has the legal authority to enter into this Agreement, (ii) the subscription services will materially conform with the relevant documentation, (iii) the functionality and security of the subscription services will not be materially decreased during a subscription term except in the event of a critical security threat, when TQI may suspend and/or alter materially functionality available in the subscription services as described in Order and/or SOW(s) and PCR(s), and (iv) professional services will be performed in a competent and workmanlike manner consistent with generally accepted industry standards.

5.2.2. Remedies. For any failure of any subscription services, professional services or other services, as applicable, to conform to their respective warranties, TQI’s liability and CLIENT’S sole and exclusive remedy shall be for TQI, in the case of a breach of the warranty, to use commercially reasonable efforts to correct such failure; or, re-perform the affected services. If the foregoing remedies are not commercially practicable, TQI may, in its sole discretion, terminate the applicable Order and/or SOW(s) and PCR(s) upon providing CLIENT with written notice thereof, and, as CLIENT’S sole and exclusive remedy, refund to CLIENT (a) in the case of breach of the warranty any subscription services fees paid by CLIENT with respect to the unexpired portion of the current subscription term for the non-conforming subscription services; or (b) refund any fees paid by CLIENT for the portion of professional services giving rise to the breach.

5.2.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TQI MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, AND TQI HEREBY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY WITH RESPECT TO THE QUALITY, PERFORMANCE, ACCURACY OR FUNCTIONALITY OF THE SERVICES OR THAT THE SERVICES ARE OR WILL BE ERROR FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.

5.2.4. Software Performance.  The Software TQI provides is the kind that performs substantially in accordance with the accompanying materials for a period of thirty (30) days from the date of being in production.

5.2.5. COTS and Third-Party Software. Commercial-off-the-shelf or commercially available off-the-shelf software and platform is provided by TQI. TQI provides custom distributions of some open source and third-party software branded as, but not limited to, Omniweb, nSpire, DataView, and Compass. The software and platform(s) TQI provide represents proprietary trade secrets and may utilize open source code, frameworks, modules, libraries and code that have been properly vetted. TQI does not control third-party software. In the event portions of the third-party software utilized fails to function as desired or creates performance issues, TQI, in good faith, if deemed necessary solely by TQI, will adjust, fix, repair, replace or delete the software at our discretion. CLIENT shall be liable for fees associated with third-party software they utilize outside of TQI’s control.

5.3.  Licenses for Third-Party Software.  TQI has acquired and conformed to the requisite licenses for use of software with third-party components or plug-ins or other third-party software for embedding within TQI’s Software.  Such third-party plug-ins or components are set up to perform substantially in accordance with the expected behavior for a period of thirty (30) days from the date of being in production.  TQI has reviewed, acquired and conformed to licenses of all such third-party components, thereby not requiring CLIENT to separately acquire the same.  The license granted to such components is no less broad than the license granted in this Agreement.  The components are provided “as is” by the Third-Party licensors who disclaim all liabilities, damages, (even if they have been advised of the possibility of such damages), warranties, indemnities and other obligations of any kind, express or implied, with regard to the components. The components are excluded from any indemnity provided by TQI in this license. Nothing in the foregoing affects any performance warranty provided by TQI regarding the software as a whole.

5.3.1. Not Included in Warranty.  TQI does not warrant that the software, related information technology or third-party technology will be error free. It is provided “as is”. Furthermore, rapid changes to technology, third-party changes made without notice and malicious activities by cybercriminals may cause interruption of services, inaccuracy and/or other shortcomings and failures which are not included in warranty.

5.3.2. Third-Party Services Liabilities. TQI does not control and is not liable for third-party services or for any transaction CLIENT may enter with them. CLIENT security for third-party services is the responsibility of the CLIENT. CLIENT also agrees that TQI may at any time and in our sole discretion, and without any notice to CLIENT, suspend, disable access to or remove any third-party services. TQI is not liable to CLIENT for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses CLIENT may experience as a result thereof (except where prohibited by law).

5.3.3. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION TQI AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF ACCURACY, COMPLETENESS, PERFORMANCE, CURRENCY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE. No warranty shall be provided until payment in full is received, including PCRs or any other sums due. Some jurisdictions do not allow the exclusion or limitation of implied warranties so the above exclusions may not apply to CLIENT.

5.3.4. Liability. TQI’S liability, whether in contract, tort, or otherwise, arising out of CLIENT use of or in connection with, the Software, or otherwise under this Agreement, will not exceed the amount of the license fee paid by CLIENT to TQI for software subscriptions since the time of dispute and will exclude any customization, programming, consulting, data integration and management services CLIENT has paid.

5.3.5. No Liability. IN NO EVENT WILL TQI OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF TQI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  TQI IS NOT LIABLE OR RESPONSIBLE FOR CONTENT SPELLING, CONTENT ACCURACY, OR CONTENT REPRESENTATIONS FURNISHED BY CLIENT TO TQI FOR INCLUSION IN WEB PAGES. CLIENT IS SOLELY RESPONSIBLE FOR THE CONTENT OF ITS MESSAGES AND DATA. CLIENT ACKNOWLEDGES THAT TQI DOES NOT CONTROL THE CONTENT OF ITS MESSAGES AND DATA SENT THROUGH THE SERVICES.

5.3.6. Exclusion of Consequential and Related Damages. NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

6.      Covenants.

6.1.       CLIENT’S Availability.  CLIENT covenants to make time available and provide the project team(s) with access to key users and technical personnel in the organization.  Specific activities critical to the delivery of Services require the input, review and participation of the staff of both CLIENT and TQI.  This typically includes requirements gathering, design, working sessions and day-to-day engagement tasks.  The successful implementation of a project is dependent on the timely, intentional, and professional interaction of the parties.

6.2.       Remotely Performed Services.  If Services are performed remotely, CLIENT agrees to provide TQI Internet access at each relevant server and workstation.  TQI assumes that for each server and workstation CLIENT will have Internet connectivity, database server, and workstations.  TQI licenses remote control utilities to perform remote work.  CLIENT may need a resource to be logged into the server and each workstation with local sufficient or adequate rights to facilitate the remote work.  If CLIENT does not successfully insure TQI’s need for connectivity, then the budget and delivery of the project may be negatively impacted negatively.

6.3.       Security Access.  CLIENT shall grant security access to TQI as necessary to complete all SOWs and/or PCRs.

6.4.       Compliance with Law.   TQI will comply with all laws applicable to the provision of the Subscription Services, including applicable security breach notification laws, but not including any laws applicable to the CLIENT’S industry that is not generally applicable to information technology services providers.

6.5.       Technical Support.  CLIENT shall communicate technical support inquiries from its users with complete and thorough user issue documentation. CLIENT recognizes this is CLIENT’S sole responsibility and necessary for TQI to address issues. When requested, CLIENT will enable TQI to interact directly with user(s) as need is determined. TQI shall respond to inquiries from CLIENT regarding Services.  TQI shall respond to inquiries from CLIENT on a 24x7 basis, provided that inquiries are submitted per established protocol via toll-free phone or email in the English language, and such inquiries are responded to in English.

6.6.       Prohibition of Use of TQI Partners or Vendors.  CLIENT agrees to not seek out or otherwise do business with any of TQI’s partners, affiliates, or vendors during the Term of this Agreement nor shall they do so within 12 months after the Term of this Agreement ends.

6.7.       TQI’s Use of CLIENT’S Information.  TQI may use CLIENT content in a number of different ways, including by publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, distributing it, and allowing others to do the same in connection with their own websites and media platforms. As such, you hereby irrevocably grant us world-wide, perpetual, non-exclusive, royalty-free, assignable, sublicensable, transferable rights to use CLIENT content for any purpose. Please note that you also irrevocably grant the users of the service and any other media the right to access CLIENT content in connection with their use of the service and any other media. Finally, CLIENT irrevocably waives, and causes to be waived, against TQI and its users any claims and assertions of moral rights or attribution with respect to CLIENT content. By “use we mean use, copy, publicly perform and display, reproduce, distribute, modify, translate, remove, analyze, commercialize, and prepare derivative works of CLIENT content.

6.8.       collaboration on a press release, written by TQI and approved by CLIENT, to be issued after the signing of the contract and prior to implementation. The press release will outline the relationship between the two organizations and document how CLIENT will use TQI technology and Services to achieve its important goals,

6.9.       collaboration on a case study, written by TQI and approved by CLIENT, that documents specific results of the project and speaks to how the two organizations achieved the goals originally outlined in the press release. Work will commence on this case study in parallel with the implementation and will be completed and issued after implementation is finalized, and

6.10.    CLIENT shall serve as a positive reference for TQI, by speaking to other businesses or organizations – and potentially members of the investment community – about how CLIENT employed a TQI solution to meet its critical goals.

7.     Software Ownership; License Grant; Copyright.

7.1   Unless expressly stated in the SOW, Software and design which may be associated with this Agreement, including source code (where applicable), is protected by copyright laws and international copyright treaties, as well as, other intellectual property laws and treaties.  Software associated with this Agreement, including source code and design (where applicable), is licensed, not sold. Title to the software, the source code and design shall always remain with TQI. CLIENT must treat software associated with this Agreement, the source code and design (where applicable) like any other copyrighted material. Failure to recognize and protect software, source code and design works will constitute copyright infringement.

7.2   CLIENT shall (i) access and use the Services in accordance with this Agreement, applicable laws and government regulations and TQI’s  Acceptable Use Policy incorporated herein by reference, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify TQI promptly of any such unauthorized access or use, and (iii) take commercially reasonable steps necessary to ensure the security and compliance of the CLIENT Applications.

7.3   All software provided by TQI will be identified by brand and/or company as “Powered and Designed by” and will be prominently but discretely displayed on footers and/or other appropriate and noninvasive areas and will include corresponding link(s) to TQI landing page(s) designed to promote TQI solutions. This is like an automobile company and branded ornaments which are on every automobile except these identifiers will be digitally linked. SEO benefits for the CLIENT will be included. Options to eliminate brand identification may be provided at additional cost.

7.4   All design created by TQI is considered a “Work made for hire”. CLIENT agrees, unless a supplemental agreement signed by both parties exists whereby selling TQI copyrights, that TQI is the rightful owner of all Copyrights and the term for this Copyright protection is (95) ninety-five years from the date of publication or (120) one-hundred twenty years from date of creation whichever expires first. (see Section 101 of the Copyright Act title 17 of the US Code), (see Circular 15a duration of Copyright) and (see www.copyright.gov

7.4.1.   CLIENT agrees TQI employees and/or contractors may encompass and otherwise include CLIENT input which may constitute Inspiration, Ideation. Collaboration and Content within TQI’s design work made for hire and that CLIENT input has no bearing whatsoever on ownership of TQI’s copyrights and does not extend or establish or imply ownership in any way.

7.4.2.   CLIENT understands and agrees that the CLIENT owns the Content and raw data of the Site utilizing TQI’s platform and services, but content is not considered design and the CLIENT is prohibited to reproduce that content utilizing the same design and aesthetic layout, including use of whitespace, spacing, image sizing, table designs and page elements as created by TQI for artistic expression, the invocation of audience feelings and the intentional psychological connections made with users. TQI’s design may include specific language, mental models, trigger points, user needs as they relate to user interaction and user experience and priorities.

7.4.3.   CLIENT understands and agrees the use of an established CLIENT logo does not constitute or imply copyright ownership of creative design which may incorporate the logo within.

7.4.4.   CLIENT understands and agrees the Context is the setting of where and how Content and/or Data are consumed. Context shapes meaning in all communications and without context effective communications is not possible. TQI’s design frames and establishes through its context the effective communications of CLIENT’S content and Data.

7.4.5.   CLIENT understands their responsibility of informing TQI of their desire and preference to own copyright. Unless agreed upon in a supplemental agreement signed by both parties, TQI will maintain ownership of all design copyright and shall be the sole source provider of support and derivative works associated with the design. This will include, but not be limited to:

7.4.5.1   Website Design which includes Website wireframes, website concepts, website themes (including all code, media queries and device support), website code (HTML, CSS, JavaScript, SASS, PHP) and Aesthetic layout of page content including the use of whitespace, margins, padding and separation.

7.4.5.2   Branded Materials which includes any and all print designs produced, business cards, trifolds, bi-folds, one-pagers, half-pagers, booklets, flyers, clothing, any and all marketing and promotional materials produced.

7.4.5.3   Digital assets and designs produced including banners, images, tables, forms, email templates, user interfaces (UI), user experiences (UX), logo creations, promotional materials, digital signage, social media ads, eNewsletter designs; and

7.4.5.4   Video and multimedia

7.5    Unless expressly stated in the SOW and/or PCR, copyright to the finished assembled work of web pages produced by TQI is owned by TQI. CLIENT is assigned rights to use as a TQI website the design, graphics, and text contained in the finished assembled website.  Source code, work-up files, software enhancements, design, customized or standard and computer programs created, compiled or integrated by TQI in conjunction with or without third-party TQI licensed software, source code and design (where applicable) shall remain the sole property of TQI. Except for the rights expressly granted under this Agreement, TQI and its licensors retain all right, title and interest in and to the Subscription Services and Documentation, including all related intellectual property rights therein. TQI reserves all rights in and to the Subscription   Services and Documentation not expressly granted to CLIENT under this Agreement. CLIENT will not delete or in any manner alter the copyright, trademark, and other proprietary notices of TQI.

7.6    CONTENT ENTERED BY CLIENT IN THE FORM OF TEXT, IMAGES AND/OR DATA FROM THEIR SYSTEMS WHICH FEEDS INTO OR DISPLAYS WITHIN THE ASSEMBLED WORK IS SOLELY OWNED BY CLIENT.  UNLESS OTHERWISE STATED IN A SOW(s) and/or PCR(s), TQI RETAINS OWNERSHIP AND COPYRIGHT FOR ALL ARTISTIC DESIGN, GRAPHICS, AND PHOTOS THEY PROVIDE IN ACCORDANCE WITH FEDERAL COPYRIGHT LAW.  CLIENT UNDERSTANDS THAT APART FROM THE TQI SOURCE CODE, CLIENT CONTENT ASSOCIATED WITH TQI COPYRIGHTED SOURCE CODE MAY NOT FUNCTION IN THE SAME MANNER AS INTENDED EVEN WHEN ASSOCIATED WITH REPLACEMENT SOURCE CODE. ANY UNAUTHORIZED USE OF TQI SOFTWARE, SOURCE CODE AND ARTISTIC DESIGN IS STRICTLY FORBIDEN AND WILL BE CONSIDERED TO BE THEFT AND COPYRIGHT INFRINGEMENT.

7.7    CLIENT is eligible to receive all major, same version upgrades, minor updates and security patches for the version of software licensed and associated with this Agreement at no cost except for necessary installation and testing labor. This will be approved by CLIENT and TQI through a SOW and/or PCR during the term(s) of this Agreement.  UPDATES MADE NECESSARY BY 3RD PARTY APPLICATIONS, SOFTWARE OR VULNERABILITIES WILL BE THE FINANCIAL RESPONSIBILITY OF CLIENT. BUSINESS CRITICAL EMERGENCY SECURITY PATCHES MAY BE MITIGATED BY TQI WITHOUT CLIENT AUTHORIZATION AND SHALL BE INVOICED ONCE WORK IS COMPLETED WHEN TQI, AT THEIR SOLE DISCRETION, DETERMINES SUCH ACTION IS NESSARY FOR THE PROTECTION OF CLIENT BUSINESS AND/OR REPUTATION. Some software updates replace and/or supplement (and may disable) the version of the software that formed the basis for the CLIENT’S eligibility for the update.  CLIENT may use the resulting updated software in accordance with the terms of this Agreement. TQI is not responsible for updates which impact CLIENT data or which may require adjustments to CLIENT data or configurations.

8.    Export Matters.  CLIENT uses services on its own initiative and is responsible for full compliance with applicable laws regulating export control and trade sanctions that apply to your activities within the scope of our Agreement. CLIENT shall comply with all restrictions and regulations of the U.S. Department of Commerce. The U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC), U.S. Administration Regulations, and any other United States or foreign agencies and authorities in connection with CLIENT’S use of the services and to not, in violation of any laws, transfer, or authorize the transfer, of any Service (a) into any U.S. and/or U.N. embargoed countries, or (b) to anyone on the U.S. Treasury Department's List of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders or Entity List of proliferation concern, or the U.S. State Department's Debarred Parties List.  By using the services, CLIENT represents and warrants that CLIENT is not located in, under the control of, or a national or resident of any such country or on any such list.  In addition, CLIENT may not use services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical, or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations.  CLIENT is responsible for compliance with laws and regulations applicable to export, re-export or import of products, technology or technical data provided hereunder and for obtaining required export and import authorizations.  CLIENT will not transfer to or through services any data, materials or other items controlled for export under the International Traffic in Arms Regulations (“ITAR Data”) or other applicable laws.

9.    Indemnification.

9.1.  By CLIENT.  CLIENT shall defend, indemnify and hold harmless TQI, its subcontractors, and its suppliers from and against any and all loss, damage, cost, liability and expense whatsoever (including court costs and actual attorney fees) incurred by reason of

9.1.1. any failure by CLIENT to comply with any covenant or Agreement set forth herein; or

9.1.2. any claim brought by any vendor CLIENT as a result of or in connection with any offer of CLIENT based on the condition, character or quality of any product or service provided by CLIENT, or any promise, representations or warranty of CLIENT given with respect to the offered products and/or services;

9.1.3. any claim arising from the use of elements of text, graphics, photos, designs, trademarks, or other artwork furnished by CLIENT to TQI for inclusion in web pages.

9.1.4. users use of seats, roles and permissions;

9.1.5. CLIENT’S failure to assure website is compliant with all applicable laws; 

9.1.6. intellectual property infringement claims related to the domain name(s) or content;

9.1.7. unauthorized installation, use, access, copying, reproduction, and/or distribution of any portion of the TQI, Third-Party, and/or Microsoft Software Products by users; and

9.1.8. acts and omissions of CLIENTs.

9.1.9. CLIENT shall indemnify, defend and hold TQI harmless from and against any judgments, settlements, costs and fees reasonably incurred (including reasonable attorney’s fees) resulting from any claim, demand, suit or proceeding made or brought against TQI by a third party alleging that CLIENT data or CLIENT application violates applicable law or a third party’s rights (a "Claim Against TQI"); provided that TQI (a) promptly gives CLIENT written notice of the claim against TQI; (b) gives CLIENT sole control of the defense and settlement of the claim against TQI (provided that CLIENT may not settle any claim against TQI unless the settlement unconditionally releases TQI of all liability); and (c) provides to CLIENT all reasonable assistance, at CLIENT’S expense.

9.2.  By TQI.  TQI shall defend, indemnify and hold harmless CLIENT and all personnel of CLIENT from and against any and all damage, cost, liability and expense whatsoever (including court costs and actual attorney fees) incurred by reason of:

9.2.1. any failure by TQI to comply with any covenant or Agreement set forth herein; or

9.2.2. any claim brought by any person as a result of any conduct of TQI other than a claim described in Section 12.

9.2.3. TQI shall indemnify, defend and hold CLIENT harmless from and against any judgments, settlements, costs and fees reasonably incurred (including reasonable attorney’s fees) resulting from any claim, demand, suit, or proceeding made or brought against CLIENT by a third party alleging that the use of the Subscription Services hereunder infringes or misappropriates the valid intellectual property rights of a third party (a "Claim Against CLIENT"); provided that CLIENT (a) promptly gives TQI written notice of the Claim Against CLIENT; (b) gives TQI sole control of the defense and settlement of the Claim Against CLIENT (provided that TQI may not settle any Claim Against CLIENT unless the settlement unconditionally releases CLIENT of all liability); and (c) provides to TQI all reasonable assistance, at TQI’s expense. In the event of a Claim Against CLIENT, or if TQI reasonably believes the Subscription Services may infringe or misappropriate, TQI may in TQI’s sole discretion and at no cost to CLIENT (i) modify the Subscription Services so that they no longer infringe or misappropriate, without breaching TQI’s warranties hereunder, (ii) obtain a license for CLIENT’S continued use of Subscription Services in accordance with this Agreement, or (iii) terminate CLIENT’S subscriptions for such Subscription Services and refund to CLIENT any prepaid fees covering the remainder of the term of such subscriptions after the effective date of termination. Notwithstanding   the   foregoing,   TQI   shall   have   no   obligation   to indemnify, defend, or hold CLIENT harmless from any Claim Against CLIENT to the extent it arises from (i) CLIENT Data or CLIENT Applications, (ii) use by CLIENT after notice by TQI to discontinue use of all or a portion of the Subscription Services, (iii) use of Services by CLIENT in combination with equipment or software not supplied by TQI where the Service itself would not be infringing, (iv) or CLIENT’S breach of this Agreement.

9.3.  Exclusive Remedy.   This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in the section.

10.    Confidentiality and Non-disparagement.

10.1.   Confidentiality.  CLIENT shall take all reasonable care to avoid unauthorized disclosure or use of the specified information below. CLIENT shall not during the Term of this Agreement or thereafter:

10.1.1.   communicate verbally or in writing, or otherwise publicize the Terms or existence of (i) this Agreement, or (ii) any fact concerning negotiation, execution, or implementation of this Agreement, to any other current or future TQI CLIENT, the press, or any other person or business, except with written permission by TQI;

10.1.2.   disclose, forfeit, give away or cause to be disclosed, in any way Confidential Information, CLIENT data, competitive information or any part thereof, to any person, firm, corporation, association, or any other operation or entity;

10.1.3.   use confidential information on CLIENT’S own behalf, for any reason or purpose; or

10.1.4.   distribute, or cause to be distributed, confidential information to any third person or permit the reproduction of the confidential information, except on behalf of TQI in CLIENT’S capacity and that only by written authorization from TQI’s president or his designee. 

10.2.   Non-Disparagement.  During the term and thereafter, the parties shall not orally or in writing, disparage or denigrate the other party.  They shall not take action, which is intended, or reasonably likely, to harm TQI or the CLIENT or their reputation.  Such actions prohibited include, among others, negative statements, reviews, or comments.

11.     Non-solicitation of Employees, Sales Representatives, and CLIENTs.

11.1.    Employees and Sales Representatives. CLIENT shall not, during the term of this Agreement and for two years after, solicit or take away, or attempt to solicit or take away, any of TQI’s employees or sales representatives, either for CLIENT’S own business or for any other person or entity.  CLIENT shall not induce or encourage any employee or sales representative to sever his or her relationship with TQI. CLIENT shall not hire or assist in the hiring of, directly or indirectly, any employee or sales representative of TQI’s.

11.2.    CLIENTs. CLIENT shall not, during the term of this Agreement and for two years after, solicit or take away, or attempt to solicit or take away, any of TQI’s CLIENTs, either for CLIENT’S own business or for any other person or entity. CLIENT shall not induce or encourage any CLIENT to sever his, her, or its relationship with TQI. Further, even if CLIENT is solicited by a CLIENT of TQI’s to provide services to that CLIENT or CLIENT, CLIENT must refuse to do so for two years following the termination of this Agreement and that CLIENT must notify TQI regarding the details of the event.

12.     Term, Termination and Auto-Renewal.

12.1.  Term.  The Term is expressly contingent upon and the execution by the parties of SOW(s) and/or PCR(s) covering each and all the successive phases of the project, and upon each of the anticipated phases of the project being successfully completed.

12.2.  Auto-Renewal.   The initial TQINet subscription term is set forth on the SOW / User Agreement – Order Form. If not specified otherwise, the initial subscription term will begin immediately. Except as otherwise specified in the applicable Order and/or SOW(s) and PCR(s), all subscriptions shall automatically renew for an additional period of time as the original subscription upon completion of that term unless cancelled within (60) sixty days prior to automatic renewal, which shall take place on the anniversary of the SOW / User Agreement. (ex. If the initial term was for (3) three years, all subsequent terms will also be for (3) three years.) Effective 1/5/2020, the price of Services for each Renewal Term will increase automatically by three percent (3%) each year within the Renewal Term. TQI may increase pricing applicable to the renewal(s) of any then-current subscription term by providing CLIENT with notice thereof, including by email, at least (60) sixty days prior to the end of such term. The term will be considered an end of cycle and a beginning of a new cycle. Subscription, product and/or package changes, price reductions and/or price increases, plan changes, plan upgrades, and/or plan downgrades will reflect the most current TQI offering(s) and will be automatically enacted. CLIENT will be right sized to the best of the ability of TQI to accommodate the best marriage of benefits, functionality and costs which CLIENT’S previous Agreement provided. TQI reserves the right to discontinue, adjust or improve products and/or services at any time without notice. Once discontinued, TQI will not be responsible for the product or service adjustment. In the event product pricing, packages and/or services have changed, the changes will be reflected over the remainder of the term.

12.3.  Termination without Cause.  CLIENT may terminate this Agreement without cause upon ninety (90) ninety days written notice.  In the event of termination without cause, CLIENT agrees to pay TQI for the entirety of term, terms and/or subscriptions as stated in all Orders and/or SOW(s) and PCR(s), related maintenance, support or other work performed up to the date of termination.

12.4.  Termination for Cause.  Either party may terminate this Agreement for material breach, provided, however, that the terminating party has first provided the other party at least ninety (90) ninety days written notice of material breach and the opportunity to cure the breach.  If the material breach has been cured, then the parties must execute a written statement stating such material breach has been cured. The cure of a material breach will end the termination for cause. Termination for cause will not preclude the terminating party from exercising any other remedies for breach.

12.5.  Default by CLIENTIn the event CLIENT fails to perform or otherwise breaches this Agreement or any obligation hereunder, TQI shall retain all deposits and subsequent payments made by the CLIENT to TQI and shall apply said sums to reimburse TQI for damages resulting from CLIENT’S breach of this Agreement.  In such event, TQI's remedy shall not be limited to retention of said sums. TQI may pursue any and all remedies, whether legal or equitable, to which TQI is entitled, including the recovery of any and all COLLECTION FEES, attorney's fees incurred as a result of the breach, the recovery of TQI discounts and special pricing, OTHER LIQUIDATED DAMAGES, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES and/or Beracha Fund grants, subsidies and/or financing. (SEE SECTION 15.9 APPENDIX eXHIBIT: bERACHA FUND GRANT REPAYMENT PENALTY)

12.6.  Assignment of CLIENT Data.  TQI shall assign to CLIENT all rights, title, and interest in CLIENT data stored within system(s) under this Agreement upon CLIENT’S final payment of

12.6.1.  compensation as provided in Section 3,

12.6.2.  full payment of all associated Order(s), SOW(s) and/or PCR(s), products, licenses, services, and projects under the jurisdiction of this Agreement, and

12.6.3.  custom design work and all previously ordered services except for custom design work which CLIENT did NOT purchase the Copyrights

12.6.4.  TQI may provide CLIENT data if requested. Format of exports will depend on the data type. CLIENTs may request a specific export format for each data type. If the requested export format is not feasible, then TQI may provide an alternative format. System configuration settings, database structures or other data related to TQI software, server configuration or intellectual property will be excluded from exports. Requests for said data is prohibited. T & M may be charged for efforts to facilitate CLIENT data export requests.

13.   General Provisions.

13.1.  Governing Law. Ohio law will govern these terms, as well as any claim, cause of action or dispute that might arise between CLIENT and TQI (a “Claim”), without regard to conflict of law provisions. FOR ANY CLAIM BROUGHT BY EITHER PARTY YOU AGREE TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN AND THE EXCLUSIVE VENUE OF THE STATE AND FEDERAL COURTS LOCATED WITHIN CINCINNATI, OHIO. These laws govern without giving effect to conflict of laws or any choice or conflict of law provision.  Furthermore, Ohio laws govern without giving effect to any rule that would cause the application of the laws of any jurisdiction other than the State of Ohio. The Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on the International Sale of Goods do not apply to this Agreement.

13.2.  Venue.  CLIENT agrees that any subpoena, third-party discovery request, or other third-party process directed to TQI must issue from, or be domesticated by, the state or federal courts located within Cincinnati, Ohio and you agree to submit to the personal jurisdiction of each of these courts for any related proceedings. Any disputes or controversies arising out of, relating to, or concerning this Agreement and the rights and obligations hereunder, is to be commenced in either the Court of Common Pleas, Warren County, Ohio, or the United States District Court, Southern District, Sixth Circuit of Ohio, Western Division in Cincinnati, Ohio.  CLIENT irrevocably consents to jurisdiction of those courts and service of process in accordance with the provisions of the laws of Ohio. Attorneys’ fees and costs may be awarded against any party that pursues any Claim or Third-Party process in a manner contrary to this section, if party does not promptly withdraw the Claim or Third-Party process once this section is brought to its attention.

13.3.  Informal Resolution. Before filing a claim against TQI, and after formally disputing a matter  (see 15.5 Appendix 5 – Dispute Policy), CLIENT agrees to attempt to resolve issues first by emailing [email protected] with a description of claim complete with evidence. TQI will attempt to resolve the dispute informally by following up via email, phone or other methods. If TQI cannot resolve the dispute within ninety (90) days of receipt of CLIENT’S first email, CLIENT or TQI may then bring a formal proceeding starting with a third-party mediation process with a location irrevocably agreed to be located in greater Cincinnati, Ohio. Both parties shall equally pay for the third-party mediator and associated costs of mediation not including fees of legal counsel.

13.4.  Manner of Giving Notice. Except as otherwise specified in this Agreement, all legal notices of default, breach or termination (“Legal Notices”) hereunder shall be in writing and shall be deemed to have been given upon (i) personal delivery, (ii) the fifth business day after being sent by certified mail return receipt requested, or (iii) the first business day after sending by a generally recognized international guaranteed overnight delivery service. Each party shall send all Legal Notices to the other party at the address set forth in the applicable Order and/or SOW(s) and PCR(s), as such party may update such information from time to time, with, in the case of notices sent by CLIENT, a copy sent to the TQI Legal Department at the address first set forth above. Billing-related notices to CLIENT will be addressed to the relevant billing contact designated by CLIENT on the applicable Order and/or SOW(s) and PCR(s).

13.5.  Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party’s employees or agents in connection with this Agreement. If a party learns of any violation of the above restriction, such party will use reasonable efforts to promptly notify the other party.

13.6.  Non-enforcement of a Provision.  Failure of a party to enforce any provision of this Agreement does not constitute and is not construed as a waiver of such provision or of the right to enforce such provision.

13.7.  Survival. Sectionscontaining Proprietary Rights, Confidentiality, Disclaimer, Mutual Indemnification, Limitation of Liability, Notices, Governing Law and Jurisdiction General Provisions and any other rights and obligations of the parties hereunder that by their nature are reasonably intended to survive termination or expiration, shall survive any termination or expiration of this Agreement.

13.8.  Subscription Service Analyses. TQI may (i) compile statistical and other information related to the performance, operation and use of the subscription services, and (ii) use, and share data from the subscription services environment in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are  collectively referred to as ‘Subscription Service Analyses”). Subscription Service Analyses will not incorporate any information, including CLIENT data, in a form that could serve to identify CLIENT or an individual. TQI retains all intellectual property rights in Subscription Service Analyses.

13.9.  Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

13.10. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

13.11. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

13.12. Federal Government End Use Provisions (only applicable for the U.S.). If the services are being or have been acquired with U.S. Federal Government funds, or CLIENT is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Services, or any related documentation of any kind, including technical data, manuals or TQI Property is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995), as applicable. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the software and services with only those rights set forth in this Agreement and any amendment hereto.

13.13. CLIENT’S Remedies.

13.13.1. TQI’s Quality of Work; Exclusion of Services.  CLIENT’S sole and exclusive remedy for any claim against TQI with respect to the quality of work or the execution of Services is the correction by TQI of any material defects or deficiencies therein, of which CLIENT notifies TQI in writing within (30) thirty days after the completion of that portion of work or the execution of services.  In the absence of any such notice, TQI’s work is deemed satisfactory to and accepted by CLIENT per Acceptance Agreement terms as detailed in 3.3.1.

13.13.2. Performance Warranty.  TQI and its suppliers' entire liability, in contract, tort or otherwise, and CLIENT’S exclusive remedy under the performance warranty is, at TQI’s option, either (a) return of the subscription price paid since the time of dispute, or (b) repair or replacement of the defective software. This limited warranty is void if failure of the software has resulted from accident, abuse, negligence, or misapplication.

13.13.3. Source Code.  Source Code is provided “as is,” without a warranty of any kind, express or implied.

13.14. Assignments and Delegation.

13.14.1.  Assignment by TQI.  TQI may assign its duties or interests under this Agreement to any parent, affiliate, successor, or subsidiary that it may have in any country. TQI will notify CLIENT in writing of any assignment within (60) sixty days.

13.14.2. Assignment to TQI.  TQI may be assigned duties or interests under this Agreement by an affiliate, successor, or subsidiary that it may have in any country. TQI’s affiliate, successor or subsidiary will notify CLIENT in writing of any assignment within (30) thirty days at which time CLIENT automatically consents and agrees to be bound by TQI’s Master Subscriptions, Services Agreement and Terms of Engagement. In the event CLIENT refuses to be bound by this agreement by notifying TQI in writing, CLIENT will continue to be bound by Master Agreement of the affiliate, successor, or subsidiary through the term of their agreement. Upon termination of the agreement CLIENT may enter into an agreement for services with TQI.

13.14.3.  Assignment by CLIENT.  CLIENT SHALL NOT ASSIGN its duties or interests in this Agreement, voluntarily or involuntarily, whether by merger, consolidation, dissolution, operation of law, or any other manner, without prior written permission of TQI.

13.14.4. Non-delegation.  The parties shall not delegate any performance under this Agreement unless mutually approved in writing.

13.14.5. Ramification of Purported Assignment or Delegation.  Any purported assignment of rights or delegation of performance in violation of this section is void.

13.15. Severability.  If any term of this Agreement is found to be unenforceable or contrary to law, the validity and enforceability of the remaining portions or provisions are not affected.  The part which is found to be unenforceable or contrary to law must be modified to the least extent necessary to make it enforceable.  The remaining portions of this Agreement remain in full force and effect as before.

13.16. Merger.  This constitutes the Master Agreement and Terms of Engagement, a framework to create jurisdiction-specific product and service Agreements between the CLIENT and TQI. This Agreement, together with the documents listed and when executed, comprise the complete and integrated Agreement between CLIENT and TQI. Any prior representation, affirmation of fact and course of prior dealings, promise or condition, in connection therewith, if not incorporated within delineated and associated Order(s), SOW(s) and/or PCR(s) and support requests and incorporated exhibits, are not binding upon TQI or CLIENT. 

13.17. Waiver, Modification, and Amendments.  No waiver or alteration or modification of any of the provisions hereof is binding unless in writing and signed by a specifically authorized representative of TQI and CLIENT through associated Order(s), SOW(s) and/or PCR(s). TQI may waive, alter, or modify the terms and conditions of this Agreement at any time and without notice to CLIENT in order to (i) stay in compliance with state, national or international laws; and/or (ii) streamline business processes, communications and operations. It is the responsibility of the CLIENT to systematically review the terms of this Agreement on a regular basis as revised versions will be binding on CLIENT. CLIENT understands and agrees that continued access to or use of the services after the Master Agreement and Terms of Engagement revision(s) represents CLIENT’S acceptance of such changes.

13.18. Counterparts.  This Agreement is considered to be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. This includes but may not be limited to Orders, SOW(s) and/or PCR(s).

13.19. Headings.  All headings, titles and subtitles in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

13.20. Force Majeure.  Any delay or failure on the part of TQI to provide or install the services or products when due, if caused by act of God, fire, labor shortage, riot, civil disturbance, war, explosion, accident, flood, storm, the elements or other catastrophe, strike, labor dispute, civil or military authority, material shortage, priority, requisition, allocation or any other governmental restriction or limitation; or by failure of delay of transportation, shortage of or inability to obtain supplies, equipment, fuel, or labor; or by compliance with any order or request of the United States or any department, board or agency thereof; or in the event of any legislative, executive, or judicial act of any political or governmental authority that substantially affects TQI’s operations, or in the event CLIENT fails to provide proper system requirements, CLIENT’S failure to provide adequate assurances of future performance, CLIENT suspends or discontinues business for any reason or any other causes beyond the control of TQI, whether of a similar or dissimilar nature, shall not subject TQI to any liability to the CLIENT. The time for completion of this contract shall be extended for such time as may be necessary to cover any non-scheduled work stoppage or delay, or this Agreement may be terminated by TQI without penalty to TQI.

14.   Entire Agreement. This Agreement constitutes the entire Agreement between the parties as it relates to the subject matter and supersedes all prior and contemporaneous Agreements, proposals or representations, written or oral, concerning or relating to the same. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement shall  be  effective unless  in writing and signed  by  both  parties. To the extent of any conflict or inconsistency between the provisions of this Agreement, the Documentation, any ORDER AND/OR SOW(S) AND PCR(S), the terms of such ORDER AND/OR SOW(S) AND PCR(S) shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a PO, payment system, other order documentation or otherwise (excluding ORDER AND/OR SOW(s) AND PCR(s)) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

15.     Attachments.The attachments below (Appendices) constitute an integral part of this Agreement critical to the validity thereof:

15.1.     Appendix 1 – Acceptable Use Policy

15.2.     Appendix 2 – Security Policy

15.3.     Appendix 3 – eCommerce-Policy

15.4.     Appendix 4 – Privacy Policy

15.5.     Appendix 5 – Dispute Policy

15.6.     Appendix 6 – Collections Policy

15.7.     Appendix 7 – Cookie Policy

15.8.     Appendix 8 – Travel & Living Policy

15.9.     Appendix 9 – Beracha Fund Policy

15.10.   Appendix 10 – Skunk Worx Fund Policy

15.11.   Appendix 11 – TQI Angel Fund Policy