TERMS AND CONDITIONS

Section 1. Definitions

“Order” shall mean a written purchase order that is issued by Customer, authorizing ADCom to perform Services pursuant to a specific Statement of Work. All Orders must reference this Agreement and a specific Statement of Work.
“Services” shall mean the professional and technical services to be performed by ADCom under this Agreement, as specified in individual Statements of Work.
“Statement of Work” shall mean a description of the work to be performed on a specific project, including the services ADCom will perform, the pricing for those services, and the schedule for the performance of the services.

Section 2. Statements of Work and Orders

2.1 Statement of Work. Customer may, during the term of this Agreement, issue Orders to ADCom under a specific Statement of Work. Upon acceptance of an Order, ADCom will use commercially reasonable efforts to perform the Services specified in the Statement of Work to which such Order relates, subject to the terms and conditions contained therein. The manner and means used by ADCom to perform the Services are in the sole discretion and control of ADCom. ADCom shall make all reasonable efforts to meet the time schedules for performance of the Services as set forth in the Statement of Work. Customer shall provide ADCom with all information, equipment, materials, technology and other assistance that may be reasonably required to perform the Services.
2.2 Consultants. ADCom shall have the right to use third party consultants (“Consultants”) in performance of its obligations and Services hereunder.
2.3 Authorization. Each Statement of Work must be agreed to in writing by authorized representatives of ADCom and Customer prior to the issuance of any Orders and/or the commencement of any Services there under. Any addendums and/or modifications to a Statement of Work also must be agreed to in writing by the parties.
2.4 Order of Precedence. Each Statement of Work that is agreed to and Order that is accepted by ADCom will be governed by the terms and conditions of this Agreement, even if not specifically indicated therein.

Section 3. Acceptance

3.1 Procedure. The Services specified in a Statement of Work shall automatically be deemed accepted by Customer ten (10) days after performance, unless Customer has notified ADCom in writing of any material nonconformance with the specifications set forth in the Statement of Work. The notification shall describe the nonconformance in sufficient detail to allow ADCom to react and remedy the problem. Once the work is completed by ADCom, it will be deemed accepted by the Customer ten (10) days after the completion of performance by ADCom. For billing purposes, acceptance (as is described in this paragraph) shall be deemed final.

Section 4. Price and Payment

4.1 Price. Customer shall pay ADCom for all Services performed or delivered with respect to a particular Order, based upon the rates and other pricing information specified in the Statement of Work to which such Order relates. In addition, Customer shall reimburse ADCom for all out-of-pocket expenses incurred by ADCom in connection with the performance and/or delivery of such Services. All requests for changes to the Services described in a Statement of Work or Order issued there under are subject to written approval by an authorized officer of ADCom and may result in a change in rates.
4.2 Invoice. The statement of work shall contain the agreement of the parties concerning billings and invoices, but generally invoices shall be submitted immediately upon work being completed and payment shall be due within thirty (30) days.
4.3 Late Payment. Any late payment shall be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.
4.4 Default. Should Customer be more than fifteen (15) days late in any payment, ADCom may, at its option, declare Customer to be in default, at which time ADCom may declare such late or non-payment to be a Termination Event as defined in Section 12.2 of this Agreement, and terminate this Agreement pursuant to that section.
4.5 Taxes. The charges for Services required to be paid hereunder do not include any amount for taxes. Customer shall reimburse ADCom for all sales, use, VAT, excise, property, or other taxes or levies which ADCom is required to collect or remit to applicable tax authorities, exclusive of any taxes based upon the net income of ADCom.

Section 5. Intellectual Property

5.1 Ownership. Customer will own all customer information that it provides to ADCom for purposes of providing the Services. Notwithstanding the above, as between Customer and ADCom, all right, title and interest to any copyrights, trademarks, patents or other intellectual property rights available in (or resulting from, or granted pursuant to) any works developed by ADCom in the course of performing the Services, or otherwise used in connection with performing the Services, including but not limited to, any new or useful art, discovery, improvement, technical development, or invention, whether or not patentable, copyrightable or susceptible to other forms of protection, and all related know-how, trade secrets, business processes, methodologies, software programs, databases, enhancements, ideas, designs, artworks, trademarks and other copyrightable or patentable work, including, but not limited to trade secrets as defined by Georgia law at O.C.G.A. section 10-1-761,et. seq. (collectively, “Rights”) are outside the scope of the ownership clause in the immediately preceding sentence and are the sole and exclusive property of ADCom and/or its licensors.
5.2 License. Notwithstanding anything to the contrary in this Agreement, Customer hereby grants ADCom an irrevocable, perpetual, royalty-free, non-exclusive, worldwide license to use, display, perform, execute, modify, reproduce, sublicense, distribute (internally and externally) compilations or other derivative works based upon customer information provided to ADCom under this Agreement.
5.3 Other Developments. Nothing in this Agreement shall preclude ADCom from developing, using, marketing and licensing to third parties any products, services or other works with similar functionality, structure, sequence or organization as the Services, subject to the restrictions set forth in Section 6 regarding Confidential Information. This Agreement shall not require ADCom to disclose information concerning any developments that ADCom considers confidential.

Section 6. Confidential Information

6.1 Definitions. “Confidential Information” shall mean non-public information that a party (“Discloser”) discloses to the other party (“Receiver”), but only to the extent that such information is designated as being confidential or is, under the circumstances surrounding the disclosure, reasonably understood to be treated as confidential. “Confidential information” includes, but is not limited to, that information described in Georgia law at O.C.G.A section 10-1-761, et. seq.
Subject to the foregoing, “Confidential Information” includes, without limitation: (a) either party’s products and information relating to released or unreleased products, software, computer programs, algorithms, source code, and object code; (b) information regarding either party’s finances, business, processes, process parameters, methods, practices, techniques, marketing, customer lists, supplier lists, price lists, pricing terms under this Agreement, product development, research and development, and technical plans and all other compilations of information; and (c) any and all information, of whatever type and in whatever medium, including without limitation all data, ideas, development, know-how, sketches, drawings, models, inventions, formulae, patent, copyright, trade secret and proprietary information, and information relating to procedures, manufacturing, engineering, purchasing, accounting, marketing, sales, customers, suppliers, financial status, creations and improvements of either party.
Notwithstanding the foregoing, “Confidential Information” excludes anything that (1) was rightfully in Receiver’s possession free of any obligation of confidence at or subsequent to the time it was received by the Receiver from the Discloser, (2) is or becomes generally available to the public other than as a result of an unauthorized disclosure by Receiver or its personnel, (3) is independently developed by Receiver without reliance in any way on the Discloser’s Confidential Information, or (4) is required to be disclosed in response to a valid order by a court or other governmental body, or otherwise required to be disclosed by law, or (5) is necessary to be disclosed for establishing the rights of either party under this Agreement.
In the event that Receiver is required to disclose the Discloser’s Confidential Information in response to an order of court or other governmental body, the Receiver must give prompt notice to the Discloser so that the Discloser may seek a protective order and/or engage in other efforts to minimize the required disclosure.
6.2 Protection. The Receiver shall at all times take every reasonable precaution to protect and safeguard the Discloser’s Confidential Information, to avoid unauthorized disclosure or unauthorized distribution of the Discloser’s Confidential Information to any third party, and to avoid unauthorized reproduction or unauthorized use of the Discloser’s Confidential Information by any third party, except as provided elsewhere in this Agreement.
6.3 Equitable Relief. The parties do agree that neither will use confidential information obtained from the other, and should confidential information be obtained from the other and be disclosed or threatened to be disclosed, then in such event the aggrieved party shall have the right to obtained equitable remedy, including injunctive relief from a court having proper jurisdiction.
6.4 Authorized Disclosure. Notwithstanding the foregoing, the Receiver is authorized to disclose and distribute the Discloser’s Confidential Information to employees and/or Consultants who (i) require access in the course of their assigned duties and responsibilities under this Agreement, and (ii) have agreed to writing not to disclose the confidential information that comes into their possession.

Section 7. Warranties

ADCom warrants that the Services will be of professional quality and will materially conform to specifications set forth in the Statement of Work and generally accepted industry standards and practices for similar services. In the event of any material failure to meet the warranty set forth in this Section 7, and as ADCom’ sole responsibility and Customer’s exclusive remedy, (a) ADCom shall reperform such Services or take other reasonable actions to remedy such material failure, or (b) if, in ADCom’ sole judgment, such material failure cannot be remedied despite such reperformance or performance of other actions, and in lieu of taking other measures, ADCom may refund money paid by Customer for such Services. Any claim based on the foregoing warranty must be submitted in writing to ADCom within thirty (30) days after acceptance of the pertinent Services.
Each party warrants that it has obtained all necessary governmental approvals, permits or licenses relevant to transacting business hereunder.
EXCEPT AS EXPRESSLY STATED IN THIS SECTION, ADCOM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND HEREBY EXPRESSLY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES, GUARANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
Customer acknowledges that ADCom has entered into this Agreement and will set its prices for Services to be performed and delivered hereunder in reliance on the disclaimers of warranty and limitations and exclusions of liability set forth in this Agreement and that the same form an essential basis of the bargain between the parties.

Section 8. Limitation of Liability

8.1 Disclaimer. Except as noted in section 9, neither party shall be liable to the other for any contract breaches or damages including special incidental, indirect, exemplary, punitive, delay, or consequential damages of any kind, regardless of how those damages were caused, and by way of example and not limitation, there shall be no claims between the parties related to contentions of business interruption, loss of data, loss of profits, loss of business opportunities or goodwill. Moreover, even if either party is notified of a possibility of such damages, nevertheless, ADCom’s liability to the customer, including liability to any person whose claim arises out of a right first claimed against the customer shall be limited to the sum received by ADCom for the services it performs for the customer.
8.2 No Third-Party Beneficiary. THE PARTIES UNDERSTAND AND AGREE THAT THIS AGREEMENT IS BY AND BETWEEN ADCOM AND CUSTOMER, AND THAT ALL SERVICES AND PRODUCTS ARE PROVIDED SOLELY FOR THE BENEFIT OF CUSTOMER, AND THERE ARE NO THIRD-PARTY BENEFICIARIES TO THIS AGREEMENT. ADCOM SHALL NOT BE LIABLE TO ANY THIRD PARTY FOR PERFORMANCE OF ITS OBLIGATIONS, FAILURE TO PERFORM ITS OBLIGATIONS, OR RESULTS OF ITS PERFORMANCE OR LACK THEREOF UNDER THIS AGREEMENT.

Section 9. Indemnification

9.1 Mutual. Each party agrees to indemnify and hold harmless the other party from any liabilities, causes of actions, lawsuits, penalties, claims or damages that may be made by any third party for the person injury, property damages or death, but only to the extent resulting from the indemnifying parties’ gross negligence or willful acts or omissions which is the direct cause of said damages
9.2 ADCom. ADCom will defend any action brought against Customer to the extent based on a claim that a Service infringes any valid third party copyright, trademark or, to ADCom’ knowledge, U.S. patent, and will pay all costs and damages finally awarded against Customer in any such action to the extent attributable to such claim. ADCom shall have no liability to Customer hereunder for infringement which is based upon (a) combination with equipment, software or services not supplied by ADCom; (b) Customer’s use of any Service in a manner other than in accordance with its description in a Statement of Work and the provisions of this Agreement; (c) modifications made by persons other than ADCom to the Services if infringement would not have occurred but for such modifications; or (d) compliance with Customer’s design or specifications. If any allegation of infringement with respect to any Service is made or, in ADCom ‘s opinion is likely to be made, ADCom may, at its sole option and expense, procure for Customer the right to continue using such Service, or modify or replace such Service so as to avoid the infringement. If neither of these options is, in ADCom’ sole opinion, reasonably available, ADCom may cease performance of the indemnified Service and grant Customer a refund of the compensation actually paid by Customer under this Agreement for such indemnified Service for the last three (3) months.
THIS SECTION STATES THE ENTIRE LIABILITY OF ADCOM WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES PROVIDED UNDER THIS AGREEMENT.
9.3 Conditions. For indemnity under this Section 9, (a) the indemnified party must promptly notify the indemnifying party of any claim, action or allegation for which indemnity is sought; (b) the indemnifying party has sole control of the defense and settlement of any such claim, action or allegation; (c) the indemnified party must provide the indemnifying party with such assistance in such defense as the indemnifying party may reasonably request; and (d) the indemnified party must not incur any cost or expense for the account of the indemnifying party without the indemnifying party’s prior written consent.

Section 10. Dispute Resolution

10.1 Initiation. If a dispute arises out of or relates to this Agreement, and if such dispute cannot be settled through negotiation, the parties agree first to try in good faith to resolve the matter in accordance with the following dispute resolution procedure. A dispute under this provision shall be initiated by delivering written notice to the other party, as provided in the Notices section of this Agreement, briefly stating the nature of the dispute, and requesting resolution. Within five (5) days of receipt of such notice, the parties will make all reasonable efforts to resolve such claims. If such resolution cannot be achieved within such five (5) day period, the dispute will be escalated to a senior management level employee from each party who shall have authority to enter into an agreement resolving the dispute, claim or difference, subject to the approval of the party’s board of directors, if necessary. The principals shall meet no more than two days in an effort to negotiate a settlement of the dispute, claim or difference, unless there is unanimous agreement regarding an extension of the negotiating period. In the event any dispute is not resolved to the satisfaction of the principals, the dispute shall be referred to non-binding mediation.
10.2 Mediation. The mediation shall occur within thirty (30) days of such referral in Atlanta, Georgia or in such location as mutually agreed by the parties. Mediation fees shall be split equally among the parties. The mediator shall be selected by agreement of the parties or, in the event of no agreement, shall be designated by Henning Mediation & Arbitration Services of Atlanta, Georgia. The mediation shall be attended by the party’s representatives and, if desired, the parties’ attorneys. In the event a dispute is not resolved by mediation, the aggrieved party shall have the right to file suit in court.
10.3 Alternatives. Nothing in this Section 10 shall prevent the parties from mutually agreeing to use an alternative means to resolve the dispute, such as arbitration, case evaluation, summary trial or other procedure. However, if the parties cannot mutually agree to such an alternative procedure, the preceding paragraphs are binding.
10.4 Limitation. Sections 10.1 and 10.2 do not apply to disputes involving confidentiality or infringement of intellectual property rights, in which cases either party shall be free to seek available remedies in any forum.
10.5 Choice of Law. This Agreement shall be governed by the laws of the State of Georgia, in addition to applicable laws of the federal government of the United States, without reference to any rule of choice (or conflict) of laws. The parties agree exclusive venue for any case shall be in Gwinnett County, Georgia.

Section 11. Publicity

11.1 Press Release. The parties recognize the value and goodwill associated with advertising a successful business relationship and agree to cooperate with each other in responding to inquiries which might lead to public disclosure of the existence of this Agreement, and further in developing a mutually acceptable policy for advertising the relationship of the parties in respective sales presentations and other internal and external promotional materials. The parties agree that the specific provisions of this Agreement should remain confidential. The parties will reasonably cooperate in good faith with one another to issue a mutual press release upon the signing of the contract. A representative of Customer and a representative of ADCom shall be appointed upon the signing of this Agreement who will be assigned the responsibility of approving marketing and other promotional materials for both internal and external use by the respective parties, as well as approving blanket and specific disclosures and press releases, which reference the other party. All approvals must be in “writing”; electronic mail is sufficient.
11.2 Marks. Each party recognizes the property right in the goodwill embodied in the other party’s trademark or service mark (“Marks”) and hereby agrees that it will not use such other party’s Marks without prior written consent, except as might be permitted under applicable law and principles of fair use. In a party’s use of the other party’s Marks, such use shall (a) inure to the benefit of such other party, (b) include proper corporate identification and attribution as may be reasonably approved in writing from time to time by such other party on various advertising and collateral where applicable and feasible, (c) be in conformance with such other party’s graphic standards for Marks, (d) not be detrimental to the goodwill and prestige associated with such Marks, and (e) be discontinued if reasonably objected by such other party.

Section 12. Term and Termination

12.1 Term. The term of this Agreement shall commence as of the Effective Date and shall continue for a period of three (3) years, unless terminated earlier in accordance with the Section 12. After the initial three (3) year term expires, (a) this Agreement, the Master Services Agreement, will automatically renew for successive one (1) year periods unless terminated by either party by providing thirty (30) days written notice prior to the end of the then current period.
12.2 Termination Event. A “Termination Event” shall be deemed to have occurred if either party: (a) commits a material breach of its obligations under this Agreement, and such breach remains uncured for a period of thirty (30) calendar days after such party receives written notice of such breach from the other party; (b) becomes insolvent or generally unable to pay its debts as they become due; (c) becomes the subject of bankruptcy and unable to continue performing its obligations hereunder; (d) otherwise ceases to conduct business; (e) commits a material fraudulent act against the other party; or (f) knowingly fails to comply with any material law, statute, rule or regulation applicable to such party with respect to this Agreement. Upon the occurrence of a Termination Event with respect to either party, the other party may immediately terminate this Agreement by giving the other party written notice of such terminating party’s intent to terminate.
12.3 Charges. Customer may terminate an Order and all related Services, in whole or in part, at its convenience by giving ADCom thirty (30) days written notice. In such event, ADCom will invoice Customer for, and Customer shall pay ADCom, all fees (and charges, expenses, costs and other amounts) for Services provided through the effective date of such termination, including any fees (and charges, expenses, costs and other amounts) incurred by ADCom in terminating subcontracts, plus a cancellation charge equal to seventy five percent (75%) of the balance of the fees (and charges, expenses, costs and other amounts) for such cancelled Services that otherwise would have become due and payable under the Order, had the Order been performed.
12.4 Return of Confidential Information. Upon termination or expiration of this Agreement, each party shall deliver to the other party all copies of such other party’s Confidential Information.
12.5 Survival. The rights obligations under this Agreement which by their nature would continue beyond the termination or expiration of this Agreement, including but not limited to the provisions of Section 4 (Price and Payment), Section 5 (Intellectual Property), Section 6 (Confidential Information), Section 7 (Warranties), Section 8 (Limitation of Liability), Section 9 (Indemnification), Section 10 (Dispute Resolution) and Section 13 (Miscellaneous), shall survive the termination or expiration of this Agreement.

Section 13. Miscellaneous

13.1 Relationship of Parties. ADCom is an independent contractor, and nothing in this Agreement shall be deemed to make ADCom an agent, employee, lessor, lessee, sub-lessor, sub-lessee, partner or joint venturer of Customer. At no time will either party represent itself as an agent, employee, lessor, lessee, sub-lessor, sub-lessee, partner or joint venturer of the other party, and no employer-employee relationship shall exist between either party and any employee or agent of the other party. Neither party shall have any express or implied right or authority to assume or create any obligation on behalf or in the name of the other party or to bind the other party in regard to any contract, agreement or undertaking with any third party.
13.2 Non-solicitation. During the term of this Agreement, and for a period of one year thereafter, neither party will employ the other party’s personnel assigned to carry out the obligations under this Agreement.
13.3 Assignment. Customer may not assign or transfer any right or obligation under this Agreement without ADCom’ prior written consent, which shall not be unreasonably withheld or delayed. ADCom may assign this Agreement, without Customer’s consent, to any non-party that expressly assumes in writing ADCom’ obligations under this Agreement; subject however to the condition that ADCom shall continue being subject to such obligations under this Agreement notwithstanding such assignment. Any assignment or attempted assignment in violation of this Section shall be null and void. This Agreement shall be binding upon and inure to the benefit of a party’s permitted successors and assigns.
13.4 Amendment. The parties agree that this Agreement cannot be altered, amended or modified, except in writing which is signed by an authorized representative of both parties.
13.5 Severability. In the event that any one provision or paragraph of this Agreement is declared to be void, illegal or unenforceable, then and in that event such provision or paragraph shall be considered separate and severable from the rest of this Agreement, so that the rest of this Agreement shall remain in full force and effect.
13.6 Notices. Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the first page of this Agreement or to such other address as the addressee may designate in a prior notice. Unless otherwise specified, all notices to ADCom shall be sent to the attention of the Legal Department.
13.7 Headings. All headings used in this Agreement are intended for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
13.8 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals, prior discussions, and writings between the parties with respect thereto.