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MSA

terms & conditions

Term: The Term of this MSA covering hosted services, projects, and equipment (collectively the “Services”) shall continue for a term of twelve  (12) months and will automatically renew each year for additional twelve (12) month periods unless canceled by either party with thirty (30) days written notice prior to the end of the then current term.

Partner Information:  All confidential information and the return thereof shall be governed by the Confidentiality Agreement (as defined in Section 7).

User name and passwords:  TIE will provide Partner with user names and passwords for various services that may fall under this agreement to its authorized representatives. Partner will be responsible for controlling and monitoring the use of these passwords and will alert TIE immediately if any unauthorized use of or a disclosure occurs.

Warranty and Disclaimer:  TIE warrants that (a) its personnel and consultants performing the Services have the necessary knowledge, skills, experience, qualifications and resources to  perform the Services described in this MSA in accordance with the requirements and specifications set forth herein, and that (b) the Services will be performed for and the deliverables provided to Partner in a good, diligent and workmanlike manner in accordance with industry standards and applicable laws and governmental regulations.. In the event such Services do not meet the requirements and specifications agreed upon, Partner shall provide TIE with written notice and details of such non-complying Services within thirty (30) days after completion of the Services involved. After determination by TIE that such Services were not in conformance to the requirements and specifications, TIE shall work diligently to re-perform such non-complying Services at no additional cost. If the preceding remedies are not fulfilled within a reasonable time, upon request by Partner, TIE will refund the price paid for the nonconforming portion of the Services.  WITHOUT LIMITING THE FOREGOING, TIE DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATIONS OF THE TECHNOLOGY, SERVICES OR EQUIPMENT PROVIDED AS DESCRIBED HEREIN OR ANY ADDENDUMS, EXHIBITS, OR BY THIRD PARTY PROVIDERS. TIE makes every attempt to repair or facilitate repairs by carriers, service providers or equipment manufacturers in the most expeditious manner. As well TIE maintains its CRM (ticketing, customers account records) system to the manufacturer’s standards and will maintain this equipment to the latest software releases.  OTHER THAN THE FOREGOING, TIE DISCLAIMS ANY AND ALL OTHER WARRANTIES WITH RESPECT TO SERVICES OR GOODS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.

Limitation of Liability:  NEITHER TIE (INCLUDING ITS LICENSORS) NOR PARTNER SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF USE OR LOSS OF BUSINESS, LOST REVENUE, LOST PROFITS OR LOSS OF GOODWILL ARISING IN RELATION TO OR IN CONNECTION WITH THIS MSA, RELATED PRODUCTS, DOCUMENTATION OR THE USE THEREOF, UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY OR STRICT LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TIE will provide the facilitation of proposals, Orders, Agreements and communications with third parties for the implementation and ongoing support of equipment and services related to Partner. However, Partner specifically acknowledges and agrees that TIE shall not be responsible in any way for any acts or omissions of any third party and shall not guarantee the performance of any such third parties, unless such third parties are subcontractors of TIE.  The remedies set forth in this MSA comprise the exclusive remedies available to Partner at law or in equity.

PCI Compliant: TIE warrants that it will be PCI compliant for the term of this agreement and will remain compliant for the life of this MSA and or any addendums associated with it.

Confidentiality: Partner and TIE, in the course of their negotiations and performance of this Agreement and subsequent relationship, may be handling financial, accounting, statistical, personnel, customer, operational, and other business data or information of the other party. All such information (the “Proprietary Information”) is confidential, proprietary and the sole property of the disclosing Party, and shall not be deemed released to the receiving Party, in the public domain, or for any other reason deemed to be usable by the receiving Party in any form.  Both parties agree not to use, disclose, license or otherwise transfer any Proprietary Information of the other or any related knowledge in any manner except as is necessary to implement this Agreement or except as required by law. Such restrictions shall not apply: (i) to Proprietary Information which enters the public domain without fault of the receiving Party; or (ii) to Proprietary Information which the receiving Party can demonstrate was rightfully in its possession prior to disclosure from the disclosing Party; or (iii) to Proprietary Information which is independently developed by the receiving Party; or (iv) to Proprietary Information required to be disclosed by law.  A receiving Party invoking exception (iv) above shall use all commercially reasonable efforts to notify the disclosing Party of any intended disclosure as far in advance of the date of required compliance as is practicable and shall not make such disclosure in advance of the date of required compliance, so that the disclosing Party may have an opportunity to take such steps as it deems appropriate to defend its interests.

Governing Law: The laws of the State of Tennessee shall govern this MSA, without regard to conflicts of law principles.  The parties agree that the circuit courts located in Wilson County, Tennessee or the United States District Court Middle District of Tennessee, as the case may be, shall be the exclusive venues for any disputes, claims or causes of action arising from this MSA.

Non-Solicitation of Employees.  The parties acknowledge that each other’s business is dependent upon being able to attract, train and keep qualified persons and adequately utilize employees. Unless it first obtains prior written consent of the other party, neither party to this MSA shall directly for itself, or on behalf of another person, firm, corporation or other entity, solicit, participate in or promote the solicitation of the other party’s employees to the leave the employ of the other party, or hire or retain as an employee or independent contractor to the other party’s employees, during the term of this MSA and for one (1) year immediately following the termination of this MSA for any reason. Should either party solicit, hire or attempt to hire any employees from the other party during this period, the hiring party agrees to pay the other party as liquidated damages and not a penalty, within thirty (30) days of such event, a finder’s fee equal to the relevant person’s most recent monetary compensation (including bonuses) received during the preceding 12-month period with such non-hiring party (annualized for the purpose of calculating said finder’s fee for employee engaged for less than 12 months).  The foregoing restrictions will not apply to persons who respond to general advertisements not targeting the other party or its employees or where the person makes non-solicited inquiries regarding employment.

General Indemnification. Each party shall indemnify and hold harmless the other party, its subcontractors and their respective partners, officers, directors, agents, advisors and employees (“Indemnified Party”) from and against (i) all claims and causes of action for death or bodily injury or the physical damage to or loss or destruction of any real or tangible personal property to the extent directly resulting from the indemnitor’s negligence or misconduct in connection with the performance of Services under this MSA, (ii) any losses, liabilities, damages and expenses (including, but not limited to, reasonable attorneys’ fees) that are incurred by the Indemnified Party a result of (a) any such claims or causes of action as mentioned in (i); (b) a breach of confidentiality obligations hereunder (Confidentiality), and (c) as to Partner as Indemnified party, damages incurred for an infringement or a misappropriation of a third party’s intellectual property as a direct result of the Services provided by TIE, including but not limited to, patents, trade secrets, trademarks or copyrights.

Payment:  Payments must be made by check or ACH transfer to TIE National, LLC.  Reference the Invoice Number on the check or ACH payment. Payment: Partner shall pay TIE for all invoices on or before the “due date” (invoice date plus the net terms).  Any amount not paid by the Due Date will be past due and subject to the current finance charges rate.  At the time of this agreement the rate is currently one and three quarter’s percent (1.75%) per month but may change at any time at TIE’s discretion.  Partner is responsible for all taxes (except for taxes on TIE’s net income and personal property), surcharges, shipping charges and similar type charges assessed on Partner’s service and / or equipment as applicable. Partner will reimburse TIE for any and all fees and expenses, including, without limitation, attorneys’ fees and expenses and court costs, incurred by TIE in collecting any sums due by Partner to TIE.  Partner shall not be entitled to deduct, counterclaim or set-off against any amount Partner owes to TIE.  If Partner is delinquent in the payment of any sums due and owing to TIE, TIE may defer further performance of Services until such payments have been made.

Publicity: TIE and Partner agree to obtain prior written approval from an officer of the other party before using the other party’s and/or any of its affiliates’ or subsidiaries’ names, logos or trademarks orally or in writing in press releases, advertising, media articles and/or interviews, including customer lists or for any other promotional purposes.

Force Majeure: Except for the payment of monies due, neither party is responsible for any delay or failure to perform its obligation hereunder due to any cause beyond its reasonable control, including, without limitations, acts of God, natural disasters, government orders, labor unrest, or the unanticipated suspension or cessation of service by an underlying service provider. A party so prevented from performing its obligations shall notify the other party of the reason and anticipated duration of such non-performance, use commercially reasonable efforts to remove the cause and resume its performance as soon as the cause is removed.

Assignment: Neither this MSA nor any right or interest hereunder, may be assigned or otherwise transferred without the prior written consent of the other party; except that, upon timely subsequent written notice, either party may assign this MSA, without consent, to an entity that controls, is control by or is under common control with such party (“control” being the ability to affect policies, management and operations through ownership, by contract or otherwise) or pursuant to a merger, reorganization or sale of all or substantially all of its assets or equity ownership interests, if the assignee is able and willing to meet all of the assigning party’s obligations under this MSA.  This MSA will be binding on and inure to the benefit of the parties, their respective successors and permitted assigns.

Entire Agreement: This MSA (including any incorporated documents) constitutes the entire agreement and understanding of the parties with respect to its subject matter and supersedes all prior agreements and understandings of the parties, whether oral or written concerning such subject matter.  Except as set forth in this MSA, neither party nor its agents has made any express or implied representation or warranty with respect to this MSA or its subject matter: accordingly, neither party will be bound by nor liable for any such representation, promise or inducement made by the other party or its agents that is not stated in this MSA. This MSA may be modified, supplemented, or amended only by a written instrument signed by the parties.  This MSA may be executed in counterparts, each of which will be considered an original and together will constitute one agreement. Facsimile transmission and re-transmission of the signed MSA, or any related document, will be deemed to be delivery of an original.