Source Pointe Services, LLC General Terms and Conditions of Service and Our Commitment To Privacy

 

These General Terms and Conditions of Service (these “Terms”) govern all services performed by Source Pointe Services, LLC, an Illinois limited liability company with offices located at 28041 Brickville Rd. Sycamore, IL. 60178 (“us”, “our”, “we” or “Source Pointe Services”), to any customer or client (“Client” or “you”) as set forth in the Services Agreement between Source Pointe Services and Client (the “Services Agreement”). Capitalized terms used but not defined in these Terms shall have the meanings set forth in the Services Agreement.

 

1) SERVICES.

Subject to these Terms, Source Pointe Services shall provide Client with the specific services (the “Services”) identified in the Services Agreement. All Services will be performed on a schedule, and in a prioritized manner, as determined by Source Pointe Services. Source Pointe Services shall have no obligation to provide Client with any services other than the Services unless expressly agreed in writing by Source Pointe Services.

 

2) FEES; PAYMENT.

a) Fees. In consideration of the Services provided to Client by Source Pointe Services, Client agrees to compensate Source Pointe Services in accordance with the fee schedule set forth in the Services Agreement. Unless otherwise agreed in writing, any services performed by Source Pointe Services which are not included in the Services shall be billed to Client at Source Pointe Services’ standard hourly rates as in effect from time to time. 

 

b) Schedule. All undisputed fees will be due and payable in electronic form in advance of the provision of the Services. Payments made by ACH or credit card will be deducted from your designated account on the first business day of the month in which the Services are to be provided.

 

c) Nonpayment. Fees that remain unpaid for more than fifteen (15) days after the date on the invoice will be subject to interest on the unpaid amount(s) until and including the date payment is received, at the lower of either 5.0% per month or the maximum allowable rate of interest permitted by applicable law. We reserve the right, but not the obligation, to suspend part or all of the Services without prior notice to you in the event that any portion of undisputed fees are not timely received by us. Notice of disputes related to fees must be received by us within sixty (60) days after the applicable Service is rendered or the date on which you pay an invoice, whichever is later; otherwise, you waive your right to dispute the fee thereafter. A re-connect fee may be charged to you if we suspend the Services due to your nonpayment. Time is of the essence in the performance of all payment obligations by you. You agree that source Pointe Services may recover all fees owed under the terms of the Services Agreement, and any reasonable collection expenses, including but not limited to reasonable attorney fees.

 

d) Reoccurring fees for our Service Agreements are developed on a per-unit basis (e.g. per device, per user).  Unit count changes are periodically reviewed and adjusted. Such unit count changes may result in price increases under the related Service Agreement.

 

3) TERMINATION.

Notwithstanding anything in the Services Agreement to the contrary, the Services Agreement may be terminated prior to its expiration as follows:

a) Termination Without Cause. If Source Pointe Services decides to cease providing a service to all of its customers generally, then Source Pointe Services may terminate the Services Agreement without cause by providing no less than one hundred and twenty (120) days prior written notice to you.

b) Termination For Cause. In the event that one party (a “Defaulting Party”) commits a material breach under the Services Agreement (including these Terms), the non-Defaulting Party will have the right, but not the obligation, to terminate immediately the Services Agreement (a “For Cause” termination) provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within twenty (20) days (ten (10) days for non-payment by Client) following receipt of written notice of the breach from the non-defaulting Party. If Source Pointe Services terminates the Services Agreement For Cause, then Source Pointe Services shall be entitled to receive, and you hereby agree to pay to us, (i) all amounts that would have been paid to Source Pointe Services had the Services Agreement remained in effect until the expiration of the Initial Term or the then-current Renewal Term, as applicable, (ii) all expenses incurred by us in our preparation and provision of the Services to you, e.g., licensing fees incurred by Source Pointe Services, non-mitigate hard costs, etc., and (iii) all expenses incurred by us in our attempt to collect amounts owed, including any attorney fees. If you terminate the Services Agreement For Cause, then you will be responsible for paying only for those Services that were properly delivered and accepted by you up to the effective date of termination.

c) Client Activity As A Basis for Termination. In the event that (i) any Client-supplied equipment, hardware or software, or any action undertaken by you, causes the System or any part of the System to malfunction consequently requiring remediation by Source Pointe Services on three (3) occasions or more (“System Malfunction”), and if under those circumstances, you fail to remedy, repair or replace the System Malfunction as directed by us (or you fail to cease the activity causing the System Malfunction, as applicable), or (ii) you or any of your staff, personnel, contractors, or representatives engage in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable to provide the Services to you, then Source Pointe Services will have the right, upon ten (10) days prior written notice to you, to terminate the Services Agreement For Cause or, at our discretion and if applicable, amend the Services Agreement to eliminate from coverage any System Malfunction or any equipment or software causing the System Malfunction.

d) Consent. You and we may mutually consent, in writing, to terminate the Services Agreement at any time.

e) Equipment / Software Removal. Upon termination of the Services Agreement for any reason, you will provide us with access, during normal business hours, to your premises or any other locations at which Source Pointe Services-owned equipment or software (collectively, “Source Pointe Services Equipment”) is located to enable us to remove all Source Pointe Services Equipment from the premises. If you fail or refuse to grantSource Pointe Services access as described herein, or if any of the Source Pointe Services Equipment is missing, broken or damaged (normal wear and tear excepted) or any Source Pointe Services -supplied software is missing, we will have the right to invoice you for, and you hereby agree to pay immediately, the full replacement value of any and all missing or damaged items.

f) Transition; Deletion of Data. In the event that you request Source Pointe Services’ assistance to transition away from our services, we will provide such assistance if (i) all fees due and owing to us are paid to us in full prior to Source Pointe Services providing its assistance to you, and (ii) you agree to pay our then-current hourly rate for such assistance, with up-front amounts to be paid to us as we may require. For the purposes of clarity, it is understood and agreed that the retrieval and provision of passwords, log files, administrative server information, or conversion of data are transition services, and are subject to the preceding requirements. Unless otherwise expressly agreed by Source Pointe Services in writing, we will have no obligation to store or maintain any Client data in our possession or control beyond fifteen (15) calendar days following the termination of the Services Agreement. We will be held harmless for, and indemnified by you against, any and all claims, costs, fees, or expenses incurred by either party that arises from, or are related to, oUR deletion of your data beyond the time frames described in this Section 3(f).

 

4) GENERAL CLIENT REQUIREMENTS.

The terms of the Services Agreement, including the Services to be performed by Source Pointe Services thereunder and the Fees payable by Client for such Services, are based upon the assumptions and minimum requirements set forth on Exhibit B. In addition, in order for Source Pointe Services to provide the Services, Client acknowledges and agrees to each of the following:

a) System. For the purposes of these Terms, “System” means, collectively, any computer network, computer system, peripheral or device installed, maintained, monitored, or operated by Source Pointe Services pursuant to the Services Agreement. To avoid a delay or negative impact on our provision of the Services, during the term of the Services Agreement you agree to refrain from modifying or moving the System or installing software on the System unless we expressly authorize such activity.

b) Requirements. At all times, all software on the System must be genuine and licensed, and you agree to provide us with proof of such licensing upon our request. If we require you to implement certain minimum hardware or software requirements pursuant to the Services Agreement (“Minimum Requirements”), you agree to do so as an ongoing requirement of us providing our Services to you.

c) Maintenance; Updates. If patches and other software-related maintenance updates (“Updates”) are provided under the Services Agreement, we will install the Updates only if we have determined, in our reasonable discretion, that the Updates will be compatible with the configuration of the System and materially beneficial to the features or functionality of the affected software or hardware. We will not be responsible for any downtime or losses arising from or related to the installation or use of any Update, provided that the Update was installed in accordance with the manufacturer’s or applicable vendor’s instructions.

d) Third-Party Support. If, in Source Pointe Services’ discretion, a hardware or software issue requires vendor or OEM support, we may contact the vendor or OEM (as applicable) on your behalf and pass through to you, without markup, all fees and costs incurred in that process. If such fees or costs are anticipated in advance or exceed $100, we will obtain your permission before incurring such expenses on your behalf unless exigent circumstances require otherwise.

e) Advice; Instructions. From time to time, we may provide you with specific advice and directions related to our provision of the Services or the maintenance or administration of the System. (For example, our advice or directions may include increasing the System’s server or hard drive capacity or replacing obsolete equipment.) You agree to promptly follow and implement any directions we provide to you related to the Services which, depending on the situation, may require you to make additional purchases or investments in the System or the environment in which the System is maintained, at your sole cost. We will not be responsible for any problems or issues (such as System downtime or security-related issues) caused by your failure to promptly follow our advice or directions. If your failure to follow or implement our advice renders part or all of the Services economically or technically unreasonable to provide in our discretion, then we may terminate the Services Agreement for cause by providing notice of termination to you. Unless specifically and expressly stated in these Terms, any services required to remediate issues caused by your failure to follow Source Pointe Services’ advice or directions, or your unauthorized modification of the System, as well as any services required to bring the System up to or maintain the Minimum Requirements, are not covered under the Services Agreement or these Terms and will be out-of-scope.

f) Insurance. If you are supplied with Source Pointe Services Equipment, you agree to acquire and maintain, at your sole cost, insurance for the full replacement value of that equipment. Source Pointe Services must be listed as an additional insured on any policy acquired and maintained by you under these Terms, and the policy will not be canceled or modified during the term of the Services Agreement without prior notification to Source Pointe Services. Upon Source Pointe Services’ request, you agree to provide proof of insurance to Source Pointe Services, including proof of payment of any applicable premiums or other amounts due under the insurance policy.

 

5) ACCESS; SERVICE LEVELS.

a) Access. You hereby grant to Source Pointe Services the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the System, on a 24x7x365 basis, for the purpose of enabling us to provide the Services. It is your responsibility to secure, at your own cost and prior to the commencement of any Services, any necessary rights of entry, licenses (including software licenses), permits or other permissions necessary for Source Pointe Services to provide Services to the System and, if applicable, at your designated premises, both physically and virtually. Proper and safe environmental conditions must be provided and assured by you at all times. Source Pointe Services shall not be required to engage in any activity or provide any Services under conditions that pose or may pose a safety or health concern to any personnel, or that would require extraordinary or non-industry standard efforts to achieve.

b) Service Levels. Monitoring will occur on a 24x7x365 basis. Repair and remediation Services, if applicable, will be provided only during business hours unless otherwise expressly set forth in the Services Agreement or these Terms. Source Pointe Services will respond to problems, errors or interruptions in the provision of the Services in the timeframe(s) described on Exhibit C. Severity levels will be determined by Source Pointe Services in its reasonable discretion. All remediation Services will initially be attempted remotely; Source Pointe Services will provide onsite service only if remote remediation is ineffective and, under all circumstances, only if covered under the Service plan selected by Client.

 

6) LIMITED WARRANTIES; LIMITATIONS OF LIABILITY.

a) Hardware / Software Purchased Through Source Pointe Services. All hardware, software, peripherals or accessories purchased through Source Pointe Services (“Third Party Products”) are nonrefundable once the applicable purchase order is placed in Source Pointe Services’ queue for delivery. We will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third Party Products to you, but will have no liability whatsoever for the quality, functionality or operability of any Third Party Products, and we will not be held liable as an insurer or guarantor of the performance, uptime or usefulness of any Third Party Products. All Third-Party Products are pro¬vided “as is” and without any warranty whatsoever as between Source Pointe Services and you (including but not limited to implied warranties).

b) Warranty Application. Notwithstanding any provision to the contrary in these Terms, any warranty offered and provided directly by Source Pointe Services for any product shall be deemed null and void if the applicable product is (i) altered, modified or repaired by persons other than Source Pointe Services, including, without limitation, the installation of any attachments, features, or devices not supplied or approved by Source Pointe Services; (ii) misused, abused, or not operated in accordance with the specifications of Source Pointe Services or the applicable manufacturer or creator of the hardware or product, or, (iii) subjected to improper site preparation or maintenance by persons other than Source Pointe Services or persons approved or designated by Source Pointe Services.

c) Liability Limitations. This paragraph limits the liabilities arising under the Services Agreement (including these Terms) and is a bargained-for and material part of the Services Agreement. You acknowledge and agree that Source Pointe Services would not enter into the Services Agreement unless it could rely on the limitations described in this paragraph. In no event shall either party be liable for any indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits (except for fees due and owing to Source Pointe Services), savings, or other indirect or contingent event-based economic loss arising out of or in connection with the Services Agreement (including these Terms) or the Services, or for any loss or interruption of data, technology or services, or for any breach hereof or for any damages caused by any delay in furnishing Services under the Services Agreement, even if a party has been advised of the possibility of such damages; however, reasonable attorneys’ fees awarded to a prevailing party (as described below) shall not be limited by the foregoing limitation. Except for your payment obligations and your indemnification obligations described in the Services Agreement (including these Terms), a responsible party’s (“Responsible Party’s”) aggregate liability to the other party (“Aggrieved Party”) for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to the Services Agreement (including these Terms) (collectively, “Claims”), whether in contract, tort, indemnification, or negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the amount of fees paid by you to Source Pointe Services for the specific Service upon which the applicable claim(s) is/are based during the six (6) month period immediately prior to the date on which the cause of action accrued. The foregoing limitations shall not apply to the extent that the Claims are caused by a Responsible Party’s willful or intentional misconduct or gross negligence. Similarly, a Responsible Party’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the Aggrieved Party’s willful or intentional misconduct, or gross negligence.

 

7) INDEMNIFICATION.

Each party (an “Indemnifying Party”) agrees to indemnify, defend and hold the other party (an “Indemnified Party”) harmless from and against any and all losses, damages, costs, expenses or liabilities, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from, or are related to, the Indemnifying Party’s breach of the Services Agreement (including these Terms). The Indemnified Party will have the right, but not the obligation, to control the intake, defense and disposition of any claim or cause of action for which indemnity may be sought under this section. The Indemnifying Party shall be permitted to have counsel of its choosing participate in the defense of the applicable claim(s); however, (i) such counsel shall be retained at the Indemnifying Party’s sole cost, and (ii) the Indemnified Party’s counsel shall be the ultimate determiner of the strategy and defense of the claim(s) for which indemnity is provided. No claim for which indemnity is sought by an Indemnified Party will be settled without the Indemnifying Party’s prior written consent, which shall not be unreasonably delayed or withheld.

 

8) RESPONSE; REPORTING.

a) Response. We warrant and represent that we will provide the Services, and respond to any notification received by us of any error, outage, alarm or alert pertaining to the System, in the manner and within the time period(s) designated in these Terms (“Response Time”), except for (i) those periods of time covered under the Onboarding Exception (defined below), or (ii) periods of delay caused by Client-Side Downtime (defined below) or Vendor-Side Downtime (defined below) or (iii) periods in which we are required to suspend the Services to protect the security or integrity of your System or our equipment or network, or (iv) delays caused by a force majeure event.

i) Scheduled Downtime. For the purposes of these Terms, Scheduled Downtime will mean those hours, as determined by us but which will not occur between the hours of 9:00 AM and 5:00 PM CST (or CDT, as applicable), Monday through Friday without your authorization or unless exigent circumstances exist, during which time we will perform scheduled maintenance or adjustments to its network. We will use our commercially reasonable efforts to provide you with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.

ii) Client-Side Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by your actions or omissions (“Client-Side Downtime”).

iii) Vendor-Side Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by third-party service providers, third-party licensors, or “upstream” service or product vendors.

iv) Remedies; Limitations. Except for the Onboarding Exception, if we fail to meet our service level commitment in a given calendar month and if, under such circumstances, our failure is not due to your activities, omissions, or inactivity, then upon receiving your written request for credit, we will issue you a pro-rated credit in an amount equal to the period of time of the outage and/or service failure. All requests for credit must be made by you no later than forty-five (45) days after you either (i) report the outage or service failure to us, or (ii) if applicable, receive a monthly report showing the outage and/or failure. The remedies contained in this paragraph are in lieu of (and are to the exclusion of) any and all other remedies that might otherwise be available to you for our failure to meet any service level commitment during the term of the Services Agreement.

b) Onboarding Exception. You acknowledge and agree that for the first thirty (30) days following the Effective Date, the Response Time commitments described in these Terms will not apply to us, it being understood that there may be unanticipated downtime or delays due to our initial startup activities with you (the “Onboarding Exception”).

 

9) CONFIDENTIALITY.

a) Defined. For the purposes of these Terms, Confidential Information means any and all non-public information provided to us by you, including but not limited to your customer data, customer lists, internal documents, and related information. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of Source Pointe Services, (ii) was developed independently by us, or (iii) is or was lawfully and independently provided to us prior to disclosure by you, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.

b) Use. We will keep your Confidential Information confidential, and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by you in writing, or (ii) as needed to fulfill our obligations under the Services Agreement (including these Terms). If we are required to disclose the Confidential Information to any third party as described in part (ii) of the preceding sentence, then we will ensure that such third party is required, by a written agreement, to keep the information confidential under terms that are at least as restrictive as those stated in this Section 9.

c) Due Care. We will exercise the same degree of care with respect to the Confidential Information we receive from you as we normally take to safeguard and preserve our own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.

d) Compelled Disclosure. If we are legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, we will immediately notify you in writing of such requirement so that you may seek a protective order or other appropriate remedy and/or waive our compliance with the provisions of this Section 9. We will use our commercially reasonable efforts, at your expense, to obtain or assist you in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, we may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that we have been advised, by written opinion from our counsel, that we are legally compelled to disclose.

 

10) ADDITIONAL TERMS; THIRD-PARTY SERVICES.

a) EULAs. Portions of the Services may require you to accept the terms of one or more third-party end user license agreements (“EULAs”). If the acceptance of a EULA is required in order to provide the Services to you, then you hereby grant us permission to accept the EULA on your behalf. EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in these Terms. You agree to be bound by the terms of such EULAs, and will look only to the applicable third-party provider for the enforcement of the terms of such EULAs. If, while providing the Services, we are required to comply with a third-party EULA and the third-party EULA is modified or amended, we reserve the right to modify or amend the Services Agreement to ensure our continued compliance with the terms of the third-party EULA.

b) Third Party Services. Portions of the Services may be acquired from, or rely upon the services of, third-party manufacturers or providers, such as data hosting services, domain registration services, and data backup/recovery services (“Third Party Service”). Not all Third-Party Services may be expressly identified as such herein, and at all times we reserve the right to utilize the services of any third party provider or to change third party providers in our sole discretion as long as the change does not materially diminish the Services to be provided to you under the Services Agreement. We will not be responsible and will be held harmless by you, for the failure of any third-party provider or manufacturer to provide Third Party Services to Source Pointe Services or to you.

c) Data Loss. Under no circumstances will we be responsible for any data lost, corrupted or rendered unreadable due to (i) communication and/or transmissions errors or related failures, (ii) equipment failures (including but not limited to silent hardware corruption-related issues), or (iii) our failure to backup or secure data from portions of the System that were not expressly designated in the Services Agreement or these Terms as requiring backup or recovery services. Unless expressly stated in these Terms, we do not warrant or guarantee that any maintained storage device or functionality, data backup device or functionality, or load balancing functionality will operate in an error-free manner.

d) BYOD. You hereby represent and warrant that we are authorized to access all devices, peripherals and/or computer processing units, including mobile devices (such as notebook computers, smartphones and tablet computers) that are connected to the System, regardless of whether such device(s) are owned, leased or otherwise controlled by you. Source Pointe Services will not be obligated to provide the Services to any mobile device or temporarily connected device unless that obligation is specifically stated in the Services Agreement. Further, unless otherwise expressly stated in the Services Agreement, devices will not receive or benefit from the Services while the devices are detached from, or unconnected to, the System.

e) Additional Terms. Additional terms are attached hereto as Exhibit D.

 

11) OWNERSHIP OF INTELLECTUAL PROPERTY.

a) Source Pointe Services Intellectual Property. The parties acknowledge and agree that Source Pointe Services owns and shall retain sole ownership of (including all intellectual property rights in and to) Source Pointe Services’ concepts, ideas, models, know-how, software, methodologies, technologies, techniques and/or other intellectual property owned or licensed by Source Pointe Services that existed prior to and during or after the term of the Services Agreement (collectively, “Source Pointe Services IP”). Client shall not have any interest or any license in any such Source Pointe Services IP, except to the extent specifically required in order for Client to receive the Services.

b) Client Intellectual Property. The parties acknowledge and agree that Client owns and shall retain sole ownership of (including all intellectual property rights in and to) Client’s concepts, ideas, models, know-how, software, methodologies, technologies, techniques and/or other intellectual property owned or licensed by Client that existed prior to or during or after the term of the Services Agreement (collectively, “Client IP”). Source Pointe Services shall not have any interest or any license in any such Client IP, except to the extent specifically required in order for Source Pointe Services To perform the Services.

 

12) ARBITRATION.

Any dispute, claim or controversy arising from or related to the Services Agreement (including these Terms), including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration before one arbitrator to be mutually agreed upon by the parties. In the event of any inconsistency between the Rules and the procedures set forth below, the procedures set forth below will control. The arbitrator will be experienced in contract, intellectual property and information technology transactions. The arbitrator shall determine the scope of discovery in the matter, however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. The cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs.

 

13) GENERAL RELATIONSHIP OF THE PARTIES.

Source Pointe Services, when providing the Services, is acting independently, as an independent contractor. Any employee or other personnel that Source Pointe Services uses to perform the Services shall be deemed, at all times and for all purposes, employees or other personnel of Source Pointe Services and shall not be, and shall not be deemed to be, employees or other personnel of Client for any purpose. Nothing in the Services Agreement (including these Terms) is intended to constitute, and nothing in the Services Agreement (including these Terms) shall be deemed to constitute, a partnership, agency, franchise or joint venture relationship between the parties.

 

14) MISCELLANEOUS.

a) Disclosure. You warrant and represent that you know of no law or regulation governing your business that would impede or restrict our provision of the Services, or that would require us to register with, or report our provision of the Services (or the results thereof), to any government or regulatory authority. Similarly, you represent that your business is not subject to the provisions of the Federal Acquisition Regulation (FAR), or any similar regulatory acquisition process or procedure. You agree to promptly notify us if you become subject to any of the foregoing which, in our discretion, may require a modification to the scope or pricing of the Services.

b) Assignment. The Services Agreement may not be assigned or transferred by a party without the prior written consent of the other party. The Services Agreement (including these Terms) will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, we may assign our rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of our business, or any other transaction in which ownership of more than fifty percent (50%) of our voting securities are transferred; provided, however, that such assignee expressly assumes our obligations hereunder.

c) Amendment. Unless otherwise expressly permitted under these Terms, no amendment or modification of the Services Agreement or these Terms will be valid or binding upon the parties unless such amendment or modification is originated in writing by Source Pointe Services, specifically refers to the Services Agreement and/or these Terms, and is accepted in writing by one of your Authorized Contacts.

d) Time Limitations. The parties mutually agree that, unless otherwise prohibited by law, any action for any matter arising out of the Services Agreement or these Terms (except for issues of nonpayment by Client) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.

e) Severability. If any provision of the Services Agreement or these Terms is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions of the Services Agreement and these Terms will be valid and enforceable to the fullest extent permitted by applicable law.

f) No Waiver. The failure of either party to enforce or insist upon compliance with any of the terms and conditions of the Services Agreement (including these Terms), the temporary or recurring waiver of any term or condition of the Services Agreement (including these Terms), or the granting of an extension of the time for performance, will not constitute a waiver of such terms with respect to any other occurrences.

g) Merger. These Terms, together with the Services Agreement, sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. Any document that is not expressly and specifically incorporated into the Services Agreement or these Terms will act only to provide illustrations or descriptions of Services to be provided and will not modify the Services Agreement or these Terms or provide binding contractual language between the parties. We will not be bound by any of our agents’ or employees’ representations, promises or inducements if they are not explicitly set forth in the Services Agreement or these Terms.

h) Force Majeure. Source Pointe Services will not be liable for delays or failures to perform its obligations under the Services Agreement (including these Terms) because of circumstances beyond its control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by you, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, acts of God and any pandemic, epidemic or public health crisis (including any quarantine, “stay at home” or other similar law, order, directive, guideline or recommendation of any governmental entity in connection with any such pandemic, epidemic or public health crisis).

i) Non-Solicitation. You acknowledge and agree that during the term of the Services Agreement and for a period of one (1) year following the termination of the Services Agreement, you will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of Source Pointe Services’ employees or subcontractors to discontinue or reduce the scope of their business relationship with Source Pointe Services, or recruit, solicit or otherwise influence any employee or agent of Source Pointe Services to discontinue such employment or agency relationship with Source Pointe Services. In the event that you violate the terms of the restrictive covenants in this Section 14(i), you acknowledge and agree that the damages to Source Pointe Services would be difficult or impracticable to determine, and you agree that in such event you will pay Source Pointe Services as liquidated damages and not as a penalty an amount equal to one hundred percent (100%) percent of that employee or subcontractor’s first year of base salary with you (including any signing bonus). In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to any of our employees by you will be deemed to be a material breach of the Services Agreement and these Terms, in which event we shall have the right, but not the obligation, to terminate the Services Agreement immediately For Cause.

j) Survival. The provisions contained in the Services Agreement and these Terms that by their context are intended to survive termination or expiration of the Services Agreement will survive. If any provision in the Services Agreement or these Terms is deemed unenforceable by operation of law, then that provision shall be excised from the Services Agreement or these Terms, as applicable, and the balance of the Services Agreement and these Terms shall be enforced in full.

k) Insurance. Source Pointe Services and you will each maintain, at each party’s own expense, all insurance reasonably required in connection with the Services Agreement, including but not limited to, workers compensation and general liability. All of the insurance policies described herein will not be canceled, materially changed or renewal refused until at least thirty (30) calendar days written notice has been given to the other party by certified mail.

l) Governing Law; Venue. The Services Agreement (including these Terms) will be governed by, and construed according to, the laws of the state of Illinois. You hereby irrevocably consent to the exclusive jurisdiction and venue of the state courts in Dekalb County, Illinois, for any and all claims and causes of action arising from or related to the Services Agreement (including these Terms).

m) No Third-Party Beneficiaries. The Parties have entered into the Services Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce the Services Agreement or any part of the Services Agreement (including these Terms).

n) Usage in Trade. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties to the Services Agreement will be used to modify, interpret, supplement, or alter in any manner the terms of the Services Agreement or these Terms.

o) Business Day. If any time period set forth in the Services Agreement or these Terms expires on a day other than a business day in Dekalb County, Illinois, such period will be extended to and through the next succeeding business day in Dekalb County, Illinois.

p) Notices; Writing Requirement. Where notice is required to be provided to a party under the Services Agreement, such notice may be sent by U.S. mail, overnight courier, fax or email as follows: notice will be deemed delivered three (3) business days after being deposited in the United States Mail, first-class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by FedEx or other overnight courier, or one (1) day after notice is delivered by fax or email. Notice sent by email will be sufficient only if (i) the sender emails the notice to the last known email address of the recipient, and (ii) the sender includes itself in the “cc” portion of the email and preserves the email until such time that it is acknowledged by the recipient. Notwithstanding the foregoing, any notice from you to Source  Pointe Services regarding (a) any alleged breach of the Services Agreement or these Terms by Source Pointe Services, or (b) any request for indemnification, or (c) any notice of termination of the Services Agreement, must be delivered to Source Pointe Services either by U.S. mail or fax, unless such requirement is expressly and specifically waived by Source Pointe Services. All electronic documents and communications between the parties will satisfy any “writing” requirement under the Services Agreement and these Terms.

q) Subcontractors. Generally, we utilize subcontractors; should we elect to subcontract a portion of the Services, we will guarantee all work performed by any Source Pointe Services-designated subcontractor as if we performed the subcontracted work ourselves.

r) Data Access/Storage. Depending on the Service provided, a portion of your data may occasionally be accessed or stored on secure servers located outside of the United States. You agree to notify us if your company requires us to modify our standard access or storage procedures.

 

End of General Terms and Conditions of Service