Here you can edit the page's branding settings

Master Services Agreement  

Here you can edit the background of the section

This Master Services  Agreement, dated via electronic signature (the “Effective Date”), is  between TS Automotive, LLC, a Texas limited liability company dba as TrueSpot Automotive (“TSA") and ("Client"). Each of TSA and Client may be individually referred to as a “Party”  or collectively as the “Parties.” 

Client desires to  engage TSA and/or its Affiliates (as defined below) to provide certain services  on the terms and conditions set forth in this Master Services Agreement and any  schedules, exhibits or addendums hereto (collectively, the “MSA” or the  “Agreement”).   

In consideration of the  mutual covenants set forth in this Agreement and intending to be legally bound, the parties agree as follows: 

 

Article 1. DEFINITIONS

In this MSA, unless the contrary intention appears, capitalized terms shall have the meaning set forth below:

“Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a Party, where “control” is defined as the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise. 

“Application Services” means software applications, solutions, data transmission facilities, documentation, and training under the control of TSA or a TSA Affiliate that are offered by TSA or an affiliate to its customers, as described in the Proposal provided to the Client.

“Change of Control” means any transaction or series of related transactions in which (i) 50% or more of Client’s outstanding shares, partnership interests, membership interests, or other securities (representing the right to vote for the election of directors or other managing authority) are transferred (whether by merger, liquidation, consolidation or otherwise) or (ii) all or substantially all of Client’s assets are sold or transferred (whether by merger, liquidation, consolidation or otherwise).  

“Confidential Information” means all confidential or proprietary information concerning the Disclosing Party (as defined below) and/or its business, customers, products, services, marketing, promotional or technical information in connection with this Agreement, including the terms and conditions of this Agreement, trade secrets, know-how, inventions, techniques, processes, algorithms, Application programs, hardware, schematics, and Application source documents relating to the Application, and other information which may be disclosed or made available by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether disclosed orally, in writing, or by examination or inspection, other than information which the Receiving Party can demonstrate (i) was already known to the Receiving Party, other than, to the knowledge of the Receiving Party (after reasonable inquiry) under an obligation of confidentiality, at the time of disclosure; (ii) was generally available in the public domain at the time of disclosure to the Receiving Party; (iii) became generally available in the public domain after disclosure other than through any act or omission of either party in breach of this Agreement; (iv) was subsequently lawfully disclosed to either party by a third-party which was not, to the Receiving Party's knowledge, under an obligation to not disclose such information; or (v) was independently developed without use of or reference to any information or materials disclosed by the Disclosing Party or its suppliers. Confidential Information shall include without limitation the Application, Documentation, and any Application updates. 

“Control”, “Controlling” or “Controlled” means that circumstance when an entity owns or controls more than fifty percent (50%) of the outstanding shares, partnership interests, membership interests, or other securities (representing the right to vote for the election of directors or other managing authority) of another entity, but such entity shall be deemed an Affiliate only so long as such ownership or control exists. 

“Covered Contractors” means a contractor or third-party company utilized by TSA to provide the Services. 

“Custom Services” means custom development, software, integration, or training requested by Client pursuant to a Statement of Work. 

“Documentation” means any and all written and electronic user manuals and guides for the Application Services that TSA makes available to Client. 

“Effective Date” is the date of commencement of this MSA listed in the introductory paragraph. 

“Errors” means verified, reproducible, material malfunctions of the Application or any related TSA supplied software that prevents the Services from being performed as described in the applicable Documentation. 

“Force Majeure Event” means a cause or causes beyond TSA’s control. Without limiting the generality of the foregoing, such causes include natural disasters, fires, riots, strikes, blackouts, terrorism, wars or war operations, restraints of government, general failures of communications systems or the internet, and other causes which could not, with reasonable diligence, have been controlled or prevented by TSA. 

“Intellectual Property” or “Intellectual Property Rights” as the context requires, means all of the following worldwide intangible legal rights, whether or not filed, perfected, registered or recorded and whether now or hereafter existing, filed, issued or acquired: (a) patents, copyrights, copyrightable work, trademarks, service marks, trade dress, trade secrets, know-how and other confidential information, moral rights, logos, corporate names, internet domain names; (b) any rights in or to any applications for any of the foregoing; and (c) any and all other intangible or proprietary rights, anywhere in the world. 

“MSA” means this Master Services Agreement.

“Outside Factors” means (i) action or inaction of Client or a third-party, (ii) a problem with Client’s equipment or environment and/or any third-party equipment or environment, (iii) any delay in obtaining access to external databases or third-party services; or (iv) a Force Majeure Event, in each case to the extent beyond the reasonable control of TSA and as to which TSA is without fault in causing such circumstances. 

“Party” means a party to this MSA. 

“Services” means both Application Services and Custom Services. 

“Statement of Work” means an individual agreement between TSA and Client for the provision of custom or additional work. A Statement of Work may be included as an optional section within the Proposal at the time of signing or executed later as a separate document specifying the scope, deliverables, timeline, and associated costs. All Statements of Work are subject to the terms and conditions of this Agreement.

“Solution Equipment” means mean all physical hardware provided by TSA under this Agreement, including but not limited to: TrueTags, network hardware, routers, WIFI/Bluetooth amplifiers, solar power equipment, and gateways. Solution Equipment remains the exclusive property of TSA unless otherwise agreed in writing.

“Term” means the period of time that this Agreement is in effect, including the initial term and any extensions or renewals thereof. 

 

Article 2. PROVISION FOR SERVICES

  1. Framework. This Agreement establishes a framework by which TSA may contract with Client to provide Services through itself or one or more TSA Affiliates. The specific Services that TSA will provide to Client will be agreed to in the Proposal, and, if applicable, Statements of Work.

  2. Connections; Third-Party Providers. Client is responsible for providing on-site internet connection.  Client understands that TSA’s access to third-party business partners is subject to the operation hours, network availability, and performance of each such business partner. Thus, Services and problem response may be subject to the operating hours and performance of any applicable business partners. 

  3. Data Expectations. Performance of the Application Services are based upon a normal volume of data that complies with TSA’s operating expectations. Abnormal volume or incorrectly formatted data coming into the TSA system from Client databases or third-parties providing data to TSA may impact system performance, and TSA will not be responsible for failure to meet agreed upon service levels if such failure results from abnormally high volumes or incorrectly formatted data. TSA will work in good faith to assist or otherwise aid in the cure of any data anomalies that may arise.

  4. Cyber Security/Data Protection. The Company and its Affiliates’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases owned by the Company (collectively, “IT Systems”), to the knowledge of the Company, are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the Company and its Affiliates as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its subsidiaries have implemented and maintained commercially reasonable policies and procedures to, to the knowledge of the Company, maintain their material personal data (“Personal Data”) and confidential information and the integrity, continuous operation, redundancy, and security of all IT Systems used in connection with their businesses.

 

  1. Equipment, Network, and Network Communications
     
    1. TSA shall remain the owner of all physical Solution Equipment unless specifically otherwise agreed upon.  This will include, but not be limited to: TrueTags, network hardware, routers, WIFI/Bluetooth amplifiers, solar power equipment, and gateways.
    2. Client agrees to provide at Client’s cost reliable electrical power and internet connectivity for TSA physical equipment.
    3. TSA agrees to install the equipment in a workmanlike manner and place equipment in a discreet location to the extent possible.  
    4. TSA agrees to maintain, replace, or repair installed networking hardware as needed. This excludes TrueTags. Lost, damaged, or missing TrueTags will be replaced at Client’s request, and the associated costs shall be paid by Client.
    5. Client agrees to, in good faith and upon reasonable request from TSA, perform simple maintenance activities on TSA Solution Equipment, such as plugging, unplugging, or resetting devices (e.g., gateways, routers, or amplifiers). Additionally, Client shall also make reasonable efforts to assist with basic troubleshooting activities, such as checking power connections, internet connectivity and performing restarts, to minimize service disruptions. TSA will provide clear instructions and reasonable support as needed.
    6. Client agrees to grant TSA access to their property for the purposes of installing, maintaining, repairing, replacing, or collecting physical equipment. Client agrees to collaborate in good faith with TSA to facilitate TrueTags replacements if required by TSA. Reasonable advanced notice will be given before coming on site.
    7. Client agrees to use reasonable practices to protect and safeguard all TSA equipment while it is on Client’s property of otherwise in possession of the Client.  Client shall notify TSA within 24 hours of any damaged, stolen, or missing physical equipment in such cases where Client becomes aware of such issues. This obligation to notify about damaged or lost equipment does not apply to TrueTags. Client agrees to reimburse TSA for the replacement cost any damaged, missing, or stolen equipment within fifteen (15) days.
    8. TSA shall retain ownership of the communications network and Client understands that TSA may use the data transmitted over the network to compile reports, analytics, statistics, or other uses and only including for the purpose of operating the Application Services during the term of the Agreement. 
    9. TSA shall monitor the performance of the network and maintain reliable performance to the extent practicable.  Client understands and agrees that occasional short outages are sometimes expected.  Client also agrees that the network may be down temporarily for upgrades, repairs, replacements, acts of God, power outages, internet outages, and/or connectivity problems.  

  2. Restrictions on Use.
    1. Client shall not use the Application Services or the Documentation except as expressly permitted in this Agreement. Client will not, and will not permit any third party to, sublicense, rent, encumber, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human-perceivable form any portion of the Application Services. In no event shall Client use the Application Services for Client’s product development or any other commercial purpose other than specified herein.
    2. Client shall be prohibited from using the Application Services for any person or entity other than Client and any authorized third-party vendors.
    3. Client agrees not to use the Application Services for any purpose other than as specifically provided in this Agreement (including all exhibits and addendums hereto).

  3. Errors. TSA shall make commercially reasonable efforts to correct any material errors in the Application Services. Client agrees to provide written notification to TSA of any material errors and to cooperate with TSA to remedy the problem. There will be no support charges to correct such problems. TSA does not warrant that the Application Services are or will be totally error free or its operation uninterrupted. TSA is not required to fix any problems that are not internal to or not caused by the Application Services (I.e., an internet connectivity problem caused by the Client’s hardware or ISP provider).

  4. Marketing and Promotion. TSA, with approval from Client, shall have the right to use the client’s logo and likeness for typical marketing purposes (TSA website, communications, and public relations activities).  TSA, with approval of Client, can include testimonials (videos, quotes, pictures, etc.) in TSA’s marketing materials.  TSA will adhere to any known branding guidelines and requests of the client as it relates to using of the client logo, marks, testimonials, and the like.  If Client delivers written requests for the removal of already approved logos, testimonials, and the like from TSA materials (website, etc.), TSA agrees to remove in a timely manner.

  5. Support and Training.
    1. Support and Training shall be as specified herein and from direct communications between Client and TSA.
    2. Client agrees to designate (in writing, including email) and maintain a primary individual(s) within its organization as exclusive liaisons for telephone and email support. Such designated individuals should possess sufficient knowledge of the Application Services to permit the support services to be rendered in an efficient manner.
    3. Client agrees to reimburse TSA for all travel, lodging, meal and similar expenses reasonably incurred in providing support services. Notwithstanding the foregoing, TSA must provide written notice of intent to travel and obtain written pre-approval from Client to be eligible for reimbursement.
    4. Client will be provided with training, set up and testing, based upon the agreed upon training/support hours included in the implementation fee. Training shall be scheduled at mutually acceptable times. Client agrees to provide TSA with three-day advance notice of any cancellation of previously scheduled training.

  6. Warranties.  TSA warrants that TSA owns, licenses or otherwise possesses rights and interests in the Application Services and Documentation necessary, other than Client owned information, to license the Application Services and Documentation to Client under this Agreement.  Each Party warrants that it will not introduce program code typically described as a virus, Trojan horse, worm, back door or other type of harmful code into the other Party’s systems by way of the Services and that each Party will exercise commercially reasonable efforts to prevent such code from being so introduced. 

 

Article 3. FEES AND PAYMENTS

  1. Fees. Client shall pay fees in accordance with the Proposal or Statements of Work, if applicable.

  2. Payments. Payment for monthly fees and other amounts due under this Agreement are due within fifteen (15) days of the date of any invoice submitted by TSA unless otherwise specified in the Proposal executed by the Parties. All invoices for monthly fees will be dated as of the first day of the applicable period. Invoices are forward billing for the coming month and must be paid within fifteen (15) days of the beginning of that month. Client agrees to pay interest on all past due payments at the lesser of 1.5% per month or the maximum amount permitted by law. If monthly fees become more than three (3) months in arrears, TSA reserves the right to (a) suspend the license (b) terminate this Agreement, or (c) demand that all future fees be paid up to three (3) months in advance.

 

Article 4. TERM AND TERMINATIONS

  1. Term. This Agreement shall commence as of the Effective Date of the Proposal and shall continue for a period as described therein. Either Party may forego any automatic renewal by providing written notice to the other Party at least 30 days prior to the expiration of the current Term. Any change in pricing will be communicated in writing a minimum of 60 days prior to renewal term.

  2. Termination of Agreement. Either Party may terminate this Agreement if either Party shall at any time default in the payment of any fee or commit any breach of any promise or agreement contained in any Section of this Agreement and shall fail to remedy any such default or breach within thirty (30) days after written notice by the non-breaching Party.  Non-payment by Client shall be considered a breach of the agreement and TSA may terminate without notice for non-payment. 

  3. Effects of Termination. On expiration or termination of this Agreement in accordance with the provisions hereof, all rights granted under this Agreement shall terminate automatically without further notice and TSA shall immediately disable the Client user accounts and Client shall immediately cease using the Application Services. TSA will store any and all client materials, records, documents, or other media (whether maintained electronically) for a reasonable amount of time, such time period to be no less than one (1) year. Each Party’s obligations or limitations under Article V, Article VI, and Article VII shall explicitly survive expiration or termination of this Agreement.

  4. Return of TSA materials. Upon termination by expiration or otherwise, Client shall return all Solution Equipment as listed in ARICLE II 5a. purchased by Client. Parties agree that all such items are from inception the property of TSA.  Client is responsible for shipping. If such items are not returned, then Client will be charged for the current cost of replacement, plus 25%. 

 

Article 5. CONFIDENTIALITY AND INTELLECTUAL PROPERTY

  1.  Confidentiality. Each of Client and TSA agrees that it and its Affiliates and agents will keep the terms, pricing, and contents of this Agreement confidential and will not disclose or utilize any Confidential Information in any manner whatsoever other than as expressly authorized under this Agreement; provided however that (a) any of such information may be disclosed to Client’s and TSA’s advisors, agents and employees who need to know such information for the sole purpose of consummating the transactions contemplated by this Agreement and who agree to be bound by the terms of this section to the same extent as if they were parties to this Agreement; and (b) each of Client and TSA may disclose such information to the extent they are legally compelled to do so, after providing reasonable advance notice of such required disclosure in order to enable the other party to prevent or limit such disclosure. Each of Client and TSA shall be responsible for any breach of this section by any of its Affiliates, employees, advisors or agents and each of Client and TSA agrees, at its sole expense, to take commercially reasonably measures to restrain its employees, Affiliates, advisors and agents from any disclosures in violation of this section. TSA shall require Covered Contractors to enter written agreements binding Covered Contractors to obligations of nondisclosure and limited use at least as strict as those contained herein.

  2. Intellectual Property Rights. TSA and its Affiliates shall own and retain all right, title and interest in and to the Intellectual Property Rights in the Application Services and any derivative works thereof, subject only to the limited Services expressly set forth herein. Client does not acquire any other rights, express or implied, in the Application Services or any part thereof, even if Client contributed to, edited, or recommended a change in the application or software. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO TSA. 

  3. Proprietary Rights. The ownership rights, and Intellectual Property Rights in and to the Application Services shall remain with TSA and its Affiliates. Client acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with such ownership of or rights with respect to the Application Services, or any third-party rights. Title and related rights in the content accessed through the Application Services is the property of the applicable content owner and is protected by applicable law. The Services granted under this Agreement give Client no rights to such content.

 

Article 6. LIMITATION OF LIABILITY 

  1. Limitation of TSA’s Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TSA, OR ITS Affiliates, OR THEIR RESPECTIVE agents, ATTORNEYS, PARTNERS, employees or RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL OR CONSEQUENTIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND EVEN IF ARISING OUT OF THE NEGLIGENCE OF TSA, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (WHETHER UNDER CONTRACT, TORT OR STATUTE, INCLUDING WITHOUT LIMITATION NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, TSA’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF MONTHLY FEES PAID TO TSA BY CLIENT HEREUNDER DURING THE PRECEDING TWELVE (12) MONTHS (OR THE LAST TWELVE (12) MONTHS OF THE TERM OF THIS AGREEMENT, IN THE EVENT OF A CLAIM ARISING FOLLOWING THE TERMINATION OR EXPIRATION HEREOF). TSA IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY CLIENT OR A THIRD PARTY THAT IS ACCESSED THROUGH THE APPLICATION, AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. TSA’S OBLIGATION TO PROVIDE THE SERVICES SHALL BE LIMITED TO COMMERCIALLY REASONABLE EFFORTS. PERFORMANCE BY TSA IS EXPRESSLY CONTINGENT UPON THE CLIENT’S COOPERATION AND TSA IS NOT RESPONSIBLE FOR DELAYS OR OTHER PROBLEMS CAUSED BY CLIENT’S FAILURE TO MEET ITS OBLIGATIONS OR BY ANY OUTSIDE FACTORS. THE limitations and exclusions set forth in tHis Section 6 will not apply with respect tO damages attributable to intentional torts, unlawful conduct, or gross negligence. 
     
  2. TSA IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY CLIENT OR A THIRD-PARTY THAT IS ACCESSED THROUGH THE APPLICATION, AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. TSA’S OBLIGATION TO PROVIDE THE SERVICES SHALL BE LIMITED TO COMMERCIALLY REASONABLE EFFORTS. PERFORMANCE BY TSA IS EXPRESSLY CONTINGENT UPON THE CLIENT’S REASONABLE COOPERATION IN ACCORDANCE WITH ITS OBLIGATIONS UNDER THIS AGREEMENT AND TSA IS NOT RESPONSIBLE FOR DELAYS OR OTHER PROBLEMS CAUSED BY CLIENT’S FAILURE TO MEET ITS OBLIGATIONS HEREUNDER OR BY ANY OUTSIDE FACTORS.
  3. TSA DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, AND TO THE EXTENT LEGALLY PERMISSABLE, HEREBY EXPRESSLY DISCLAIMS ALL SUCH OTHER WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY AND ALL WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE APPLICATION AND ANY WARRANTY CONCERNING COMPLIANCE WITH ANY FEDERAL, STATE, OR LOCAL LAW OR REGULATION.

  4. THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY ALLOCATE THE RISKS BETWEEN TSA AND CLIENT AND FORM A MATERIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. TSA’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN. THE LIMITATIONS SET FORTH HEREIN SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR A FUNDAMENTAL BREACH AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY EXCLUSIVE OR LIMITED REMEDY.
  5. NOTWITHSTANDING ANY PROVISIONS CONTAINED IN THE AGREEMENTS, TSA SHALL BE LIABLE TO CLIENT WITHOUT ANY LIMITATION OF LIABILITY FOR ANY LIABILITY THAT CLIENT INCURS DUE TO THE SERVICES INFRINGING ON ANY OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS. 

  6. No Warranty. THE SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO WARRANTY IS MADE OR IMPLIED THAT THE SERVICE WILL MEET THE REQUIREMENTS OF CLIENT OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. NOTWITHSTANDING, PHYSICAL HARDWARE PURCHASED BY CLIENT SHALL COME WITH A ONE (1) YEAR WARRANTY FROM THE DATE OF PURCHASE. 

 

Article 6. GENERAL TERMS

  1. Captions; Pronouns; Use of Certain Terms. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and any rule of construction to the effect that any arguable ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. The section titles or captions in this Agreement are for convenience only and shall not be deemed to be part of this Agreement. All pronouns and any variations of pronouns shall be deemed to refer to the masculine, feminine, or neuter, singular or plural, as the identity of the parties may require. Whenever the terms referred to herein are singular, the same shall be deemed to mean the plural, as the context indicates, and vice versa.

  2. Choice of Law; Venue. This Agreement shall be construed under and in accordance with the laws of the State of Texas except for its conflicts of laws provisions.

  3. Dispute Resolution.  If any party commences any litigation, proceeding or other legal action in connection with or relating to this Agreement or any matters described or contemplated herein, the parties: (i) shall institute any such litigation, proceeding or other legal action in a court of competent jurisdiction located within Dallas County, Texas, whether a state or federal court; (ii) hereby consent and submit to personal jurisdiction and venue in any such court described in clause (i) and to service of process upon them in accordance with the rules and statutes governing service of process (it being understood that nothing in this section shall be deemed to prevent any party from seeking to remove any action to a federal court in Dallas County, Texas); and (iii) hereby waive to the fullest extent permitted by law any objection that they may now or hereafter have to the venue of any such litigation, proceeding or action in any such court or that any such litigation, proceeding or action was brought in an inconvenient forum. EACH PARTY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY DISPUTE IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, OR ANY MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR THEREIN, AND AGREES TO TAKE ANY AND ALL ACTION NECESSARY OR APPROPRIATE TO EFFECT SUCH WAIVER.  

  4.  Enforcement. If any party fails to perform any of its obligations under this Agreement or if any other dispute arises concerning this Agreement, the party determined by a binding and non-appealable order of a court of competent jurisdiction to have defaulted or otherwise not prevailed in such dispute, as the case may be, shall pay any and all actual costs and expenses incurred by the other parties in rightfully enforcing or establishing their respective rights hereunder or thereunder, including reasonable and actual attorneys' fees and costs.

  5. Entire Agreement, Amendment, Severability and Waiver. This Agreement, including its attachments and Statements of Work, if applicable, constitutes the entire agreement between the parties with respect to the subject matter hereof. All prior agreements, understandings and proposals, oral or written, between the parties with respect to the subject matter hereof are null and void and superseded by this Agreement. This Agreement may only be modified or amended by a writing signed by both parties. If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, the remaining provisions will continue in full force and effect. No waiver of any breach or default hereunder shall be deemed a waiver of any subsequent breach or default of the same or similar nature. No provision of the Agreement will be waived and no breach excused unless the waiver or consent is in writing and is signed by the Party that is claimed to have waived or consented. To the extent of any express conflict or inconsistency between the terms and conditions of a Statement of Work and the terms and conditions of this Agreement (excluding for this purpose the Statement of Work), the terms and conditions of this Agreement will control.

  6. Force Majeure. Neither Party shall be responsible for delays or failures in performance resulting from causes beyond the reasonable control and without the fault or negligence of such Party and/or its subcontractors. Such acts shall include but not be limited to acts of God, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, power failures, earthquakes, floods or other natural disasters or acts or omissions of Client or Client's failure to perform in a satisfactory and timely fashion as required by this Agreement and/or Client Contract (the "Force Majeure Event"). Delays in delivery or in meeting completion dates due to Force Majeure Events shall automatically extend such dates (and the term of this Agreement or the applicable Statement of Work, if appropriate) for a period equal to the duration of such events, provided that the Party whose performance has been impaired on account of a Force Majeure Event has given immediate written notice to the other Party of the occurrence and estimated impact of such Force Majeure Event.

  7. Independent Contractor. TSA is and shall perform this Agreement as an independent contractor, and, as such, shall have and maintain sole control over all of its employees, agents, operations, and Services. Neither TSA, nor any of its employees or agents shall represent, act, report to act, or be deemed to be the agent, representative, employee, or servant of Client. TSA acknowledges that any Services rendered to Client are and have been provided with the understanding that TSA is an independent contractor for payroll tax reporting purposes. Accordingly, TSA agrees that it will pay it self-employment tax and other required taxes in connection with compensation for Services provided under this Agreement. 

  8. Notifications. Notices must be in writing and shall be considered to have been received when delivered by hand, received via electronic email, or ten (10) days after sent using a delivery service similar to USPS Certified Mail to the TSA address and Client address on the signature page of the Proposal Acceptance.

  9. Obligations to Third Parties. The parties acknowledge and agree that the consummation of the transactions contemplated by this Agreement shall not create any obligations on the part of TSA to third parties which have or may have claims of any kind whatsoever against Client with respect to the Application Services. No person not a party to this Agreement shall have any “third-party beneficiary” or other rights hereunder.

  10.  Remedies. Remedies for breach are cumulative and may be exercised separately or concurrently. The exercise of one remedy does not exclude any other remedies that the parties are entitled to receive. The remedies provided in this Agreement shall not affect remedies otherwise available at law or in equity.

  11. Remedies Cumulative. All remedies provided in this Agreement are cumulative and in addition to and not in lieu of any other remedies available to a party under this Agreement, at law, or in equity.

  12. Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors, assigns, heirs, administrators, and transferees. Other than a transfer to any Affiliate of Client, this Agreement shall not, however, be assignable or transferable, in whole or part, by Client except upon the express prior written consent of TSA. TSA may assign any or all of its rights under this Agreement to any third-party without the consent of Client.

  13. Taxes. All amounts payable by Client under this Agreement shall be exclusive of and Client shall pay any duties, customs, shipping, import, sales, use, export, value-added, withholding and any international, federal, state or local taxes imposed on the license, sale or use by Client of the Services or the Application Services; provided that Client shall have no liability for any such tax based on TSA’s gross or net income or receipts.