Tazergy Subscription Services Term and Conditions
1. SERVICES. Tazergy’s obligations herein shall be strictly limited to those strictly defined in the Subscription Services Agreement (the “Subscription Services”), attached hereto and incorporated by reference herein the Quote above.
2. FEE SCHEDULE. Client acknowledges and agrees that the fees associated with the Subscription Services are reflected within the Expenses Summary, attached hereto and incorporated by reference herein.
3. OUT-OF-POCKET EXPENSES Client acknowledges and agrees that Tazergy may incur additional out-of-pocket expenses in furtherance of the Subscription Services and that Client shall be obligated to reimbursement Tazergy for any and all such expenses as part of Client’s next invoice payment being due and owing to Tazergy.
4. INVOICING. With a frequency determined in its sole and absolute discretion or as otherwise indicated in the Fee Schedule, Tazergy shall provide Client with an invoice for work completed as of reaching a certain milestone or upon completion of the Scope of Work.  Unless agreed upon in writing otherwise, payments shall be due and payable by the Client within thirty (30) calendar days from date of invoice.   Any and all payment amounts not timely received by Tazergy shall be considered delinquent and shall be subject to a one and one-half percent (1 ½ %) monthly finance charge, which shall be calculated from the date of the invoice. Tazergy shall also apply a fee of thirty-five dollars ($35.00) for each returned check.
5. TERM AND TERMINATION. The term of this Agreement shall commence as of the date first indicated above (the “Effective Date”) and shall either continue until completion of the Scope of Work, or in the event of services being provided, for twelve (12) consecutive months following the Agreement Effective Date, whichever is later (the “Term”).  Unless Client provides Tazergy with written notice no later than sixty (60) calendar days prior to the end of Term (a “Notice of Termination”), the Agreement shall auto-renew for an additional twelve (12) consecutive months (the “Renewal Term”).  The Client may not terminate this Agreement prior to satisfaction of the original Term, or any Renewal Term thereafter, without the prior written consent of Tazergy or shall be subject to the Notice of Termination as referenced herein.  In the event that Tazergy approves the termination of this Agreement, or any Renewal Term, Client shall pay Tazergy within thirty (30) calendar days of the effective date of termination any amount due and owing for any and all services rendered and products delivered as of the effective date of termination. FURTHERMORE, CLIENT ACKNOWLEDGES AND AGREES THAT AS A CONDITION OF TERMINATION, CLIENT SHALL PAY TAZERGY A TERMINATION CHARGE OF EIGHTY PERCENT (80%) OF THE OVERALL AGREEMENT VALUE REMAINING OUTSTANDING AS OF THE EFFECTIVE DATE OF TERMINATION UNTIL EXPIRATION OF THE THEN TERM OR RENEWAL TERM (the “Termination Fee”).
6. NON-SOLICITATION.  Client agrees that it shall not, without the prior written consent of Tazergy, directly or indirectly solicit for employment with Client or encourage any person who is an employee of Tazergy to terminate his or her employment relationship with, or accept any other employment outside of, Tazergy, for a period of twenty-four (24) consecutive months following the termination of this Agreement. Client understands that any breach of this provision shall constitute a material breach of this Agreement.
7.BREACH. In the event that Client fails, refused and/or is otherwise unable to remit any amounts due and owing to Tazergy in accordance with the terms of this Agreement, and such payment remains outstanding forty-five (45) calendar days following the invoice due date, the Client shall be deemed to have materially breached of this Agreement.   Pending payment of any delinquent amounts owed to Tazergy for past work performed, whether products delivered and/or installed, and/or services rendered, at Tazergy’s sole and absolute option, all remaining Scope of Work under this Agreement, and all work under any other agreement(s) with the Client, may be suspended until such time that any and all delinquent amounts owed to Tazergy have been paid in full together with applicable interests, costs and fees.  If Client fails to remit any and all amounts due and owing to Tazergy sixty (60) calendar days following an invoice due date, Tazergy shall have the right to terminate this Agreement as well as any other agreements with the Client. IN THE EVENT OF SUCH TERMINATION, CLIENT SHALL REMAIN OBLIGATED TO TAZERGY FOR ANY AND ALL AMOUNTS DUE AND OWING AS OF THE DATE OF TERMINATION.  CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT IN THE EVENT OF TERMINATION, IT SHALL BE OBLIGATED TO REMIT THE TERMINATION FEE TO TAZERGY.
8. WARRANTIES. Tazergy transfers to the Client any written warranties made by a manufacture of parts and/or equipment and/or written warranties made by a supplier of software with respect to the Scope of Work.  CLIENT ACKNOWLEDGES AND AGREES THAT TAZERGY MAKES NO FURTHER WARRANTY, EXPRESS OR IMPLIED, WHETHER ORAL OR IN WRITING, AS TO ANY OTHER MATTERS WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. CONSEQUENTIAL DAMAGES WAIVER. The Parties further acknowledge and agree that in no event shall a Party be liable to the other party for indirect, special, incidental, exemplary, punitive or consequential damages of any kind whatsoever.
10. NOTICES. All notices, demands, offers or other communications required or permitted by this Agreement shall be made by electronic mail transmission as follows, Client at (contact on this quote) and Tazergy at sales@tazergy.com and shall be deemed given at the moment of the electronic mail transmission.
11. NO WAIVER. No amendment or modification to this Agreement will be effective unless in writing and signed by duly authorized representatives of the Parties. No term or provision of this Agreement will be deemed waived and no breach excused unless the waiver is in writing and signed by an authorized representative of the Party claimed to have waived the condition or excused the breach. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provision of this Agreement.
12. CONFIDENTIAL INFORMATION. All information, regardless of format, associated with this Agreement, including, but not limited to, Scope of Work and/or associated fees (“Confidential Information”), shall be deemed strictly confidential and shall not be shared with or communicated to any third party without the prior written consent of the non- disclosing Party.  In the event that either Party is ordered to disclose Confidential Information pursuant to a judicial or governmental request, requirement or order, such Party shall promptly notify the non-disclosing Party, to the extent allowed by law, and take reasonable steps to assist the non-disclosing Party in contesting such request, requirement or order or otherwise protecting the non-disclosing Party’s rights in and to such Confidential Information.   The Client agrees that, except for internal purposes only, it will not publish, identify or otherwise disclose Tazergy’s name in any presentation material or other external disclosure without the prior written consent of Tazergy in each instance.
13. ASSIGNMENT; TRANSFER OF PROPERTY MANAGEMENT OR OWNERSHIP. Client acknowledges and agrees that it shall not assign or transfer to any third-party, whether in whole or in part, any of its rights and/or obligations arising under this Agreement without the prior written consent of Tazergy and that any such assignment or transfer shall be deemed a material breach of this Agreement.  Client further acknowledges and agrees that any change in management or ownership of any facility and/or organization managed by Client,  as of the Effective Date, shall not relieve the Client of its obligations arising under this Agreement absent written consent by Tazergy.
14. GOVERNING LAW. Unless otherwise specified, this Agreement shall be deemed to be governed by and construed in accordance with the substantive laws of the State of Georgia, excluding that State’s choice-of-law principles.  The Parties consent to venue in the State or Federal courts of Georgia and to the non-exclusive jurisdiction of any court in Cherokee County, Georgia and the Parties expressly waive any right to a jury trial regarding any dispute under this Agreement unless prohibited by law.
15. ENTIRE AGREEMENT AND ACCEPTANCE. This Agreement shall comprise the full and entire understanding by and between the Parties affecting all matters herein, and no other agreement or understanding of any nature, oral or in writing, concerning the same has been entered into or will be recognized.
16. SEVERABILITY. If any term or provision hereunder, or any portion of this Agreement is held to be invalid, void, or unenforceable, it shall not affect any other term or provision hereunder or any part thereof, and each other term and provision will continue in full force and effect and will be valid and enforceable to the fullest extent permitted by law.
17. ELECTRONIC SIGNATURES. This Agreement, and any portion thereof, may be executed, if permissible by law, with electronic signatures using an electronic signature system nominated by Tazergy and the Parties intend electronic signatures to be considered original signatures and binding for all purposes in association with the respective parts of this Agreement.
18. ATTORNEYS’ FEES. In the event that Tazergy or Client are required to initiate civil litigation and/or administrative grievance procedures in connection with this Agreement, the prevailing party therein shall be entitled to recover any and all reasonable attorneys’ fees and/or costs incurred on any and all judicial and/or administrative levels.
19. BINDING EFFECT. This Agreement shall inure to be benefit of and be binding upon Tazergy and Client and their agents, affiliates, successors, heirs and/or permitted assigns.
20. COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute the same instrument.
21. HEADINGS. The article and section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
22. DELAYS OR OMISSIONS. No delay or omission to exercise any right, power or remedy accruing to Tazergy and/or Client upon any breach or default of the other party to this Agreement, shall impair any such right, power or remedy of the non-breaching and/or non-defaulting party; nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring.  Any waiver, permit, consent or approval of any kind or character on the part of Tazergy and Client, as to any breach or default under this Agreement, or any waiver on the part of Tazergy and Client as to any provisions or conditions of this Agreement must be made in writing and shall be effective only to the extent specifically set forth in such writing.  All remedies, either under this Agreement or by law or otherwise afforded to Tazergy and Client shall be cumulative and not alternative.
23. INTERPRETATION. This Agreement shall not be construed in a light more favorable to Tazergy or Client, regardless of whether it was prepared by them or its counsel. Tazergy and Client have equally contributed to the negotiation and substantive formation of this Agreement.
24.  REVOCATION OF PRIOR AGREEMENT. This Agreement shall revoke, replace and/or otherwise supercede any previously executed Services Agreement and/or any other substantively similar agreement executed by and between Tazergy and Client.
25. VOLUNTARY ACTION AND UNDERSTANDING. Tazergy and Client have entered into this Agreement freely and voluntarily and fully acknowledge, accept and/or otherwise understand the provisions set forth in this Agreement.
26.  ACCESS TO COUNSEL. Tazergy and Client have been afforded the opportunity to consult independent legal counsel in connection with this Agreement.
27. AUTHORITY. The individuals executing this Agreement on behalf of Tazergy and Client hereby represent that they have actual authority to do so.
28. TIME OF THE ESSENCE. Time is of the essence for any and all matters addressed in this Agreement.