Agreement Terms & Conditions
Refer to your PROFESSIONAL SERVICES AGREEMENT (the “Agreement”) for it’s effective date between Exclamation Services, LLC, a Wisconsin limited liability company and credit union service organization (“Exclamation”), and you, the Client (“Client”).
In consideration of the mutual promises contained in this Agreement, the contracting parties agree as follows:
RECITALS
- Client desires to engage the services of Exclamation as an independent contractor to perform for Client the services set forth in the attached and respective Scope of Services (“Services”).
- Exclamation agrees to make available its designated agents and employees to consult with the management and the administrative staff of Client so that Client has the benefit of Exclamation’s expertise.
- Client desires the option to retain the services of Exclamation on an independent contractor basis as needs may arise and subject to the availability and abilities of Exclamation.
AGREEMENT
- Term. The respective duties and obligations of the contracting parties shall commence on the commencement date as described in the respective Statement of Work (“SOW”) and continue until and unless terminated by either party as set forth in the respective SOW. The parties may terminate one or more of the services without terminating all the services herein provided. Additional SOWs may be added at any time upon mutual agreement by both parties to the terms and services agreed to be provided in the SOW. This Master Services Agreement will remain in effect as long as any of the SOW’s remain in effect.
- Provision of Services. Exclamation shall make its employees and/or designated agents available to provide the agreed Services to Client, at reasonable times. Exclamation shall designate from time to time its employees and/or agents to provide the Services herein. It is entirely within the discretion of Exclamation to determine which of its employees and/or agents to designate and the amount of time each of the respective designated employees and/or agents it shall commit to the service of Client under this Agreement.
- Compensation for Services. Exclamation shall be paid its fee and costs as set forth in the respective SOW.
- Confidentiality. For the purposes of this Agreement, “Confidential Information” shall mean all information or other material that is confidential or proprietary to the disclosing party (the “Disclosing Party”) and provided to or otherwise obtained by the receiving party (the “Receiving Party”). Confidential Information may include, but is not limited to, customer/member information, strategic/business plans of either party and/or its affiliates, current and projected business volumes, and product pricing strategies, regardless of the form of the information. Confidential Information also includes the following types of information, whether provided in writing (whether marked as confidential or not), orally, or by any other means or medium whatsoever: marketing plans/information and business development plans, new product ideas, trade secrets, copyrights, price and cost data, pricing and billing policies, forecast assumptions and volumes; information relating to either party’s proprietary rights prior to any public disclosure thereof, including but not limited to, the nature of the proprietary rights and proprietary information which include, techniques, design, sketches, drawings, models, inventions, know-how processes, apparatus, equipment, algorithms, software programs, software source documents, and formulas related to the current, future, and proposed products and services, and includes, without limitation, their respective information concerning research, experimental work, development, design details and specifications, technical and engineering data, financial information, works of authorship, improvements, production data, test data and test results, the status and details of research and development of products and services, ideas, and information regarding acquiring, protecting, enforcing and licensing proprietary rights. Any and all ideas and concepts disclosed regarding product design, marketing, and promotional ideas are disclosed as Confidential Information hereunder.
- The Receiving Party shall be under no obligation with respect to Confidential Information that (a) was in the public domain prior to the receipt of the information by the Receiving Party, or subsequently becomes part of the public domain by publication or otherwise, other than by the wrongful act of the Receiving Party or its employees, (b) was in the lawful possession of the Receiving Party prior to its receipt hereunder, was not acquired by Receiving Party, directly or indirectly, from Disclosing Party or its employees, and the source(s) of such information had not obtained the information wrongfully and had no obligations of confidentiality with respect thereto, (c) was independently developed by the Receiving Party without access or reference to the Confidential Information, or (d) is disclosed pursuant to a government or court order; provided that the Receiving Party has first notified the Disclosing Party in writing of its receipt of the government or court order to disclose the Confidential Information and has given Disclosing Party an opportunity to seek a protective order limiting such disclosure; provided, further that the Receiving Party discloses the minimum amount of Confidential Information necessary to comply with the government or court order. The Receiving Party has the burden of proving that the Confidential Information is subject to one or more of the above listed exclusions.
- The Receiving Party agrees to: (a) keep strictly confidential all Confidential Information of the Disclosing Party, (b) protect, using the same degree of care that the Receiving Party uses to protect its own Confidential Information of like nature and importance, but in no event with less than a reasonable standard of care, any Confidential Information of the Disclosing Party, and (c) use Confidential Information of the Disclosing Party to the extent necessary to perform its obligations under this Agreement or otherwise in accordance with the prior express written consent of the Disclosing Party. The Receiving Party shall permit access to Confidential Information of the Disclosing Party only to those of its employees, agents and/or subcontractors who need to know such information in order to perform services under this Agreement and who have been informed of the confidential nature of the Confidential Information. The Receiving Party shall be responsible for any breach of this Agreement by its employees, agents and/or subcontractors. The Receiving Party shall protect as confidential and not disclose the Disclosing Party’s Confidential Information to any other party except as may be necessary to perform the services under this Agreement and only to third parties that agree to the confidentiality terms stated herein.
- In the event that the Receiving Party experiences a security breach which potentially or actually affects, directly or indirectly, Confidential Information, the Receiving Party shall immediately: (a) notify the Disclosing Party in writing, (b) utilize best efforts to take all measures necessary to ensure that the security breach has ceased, (c) investigate the nature, scope and duration of the breach and promptly advise the Disclosing Party in writing of when, how and why the breach occurred and what Confidential Information was affected, and (d) notify and cooperate with law enforcement.
- Upon the termination of this Agreement, each party hereto shall immediately and properly destroy (and provide evidence and a written certification thereof) all Confidential Information (and any reproductions thereof) of the other party.
- Each party’s obligations under this Section 4 shall be continuous and shall survive the termination of this Agreement.
- Costs. Exclamation may bill Client for direct out-of-pocket costs incurred on behalf of Exclamation in the performance of Exclamation’s duties. These costs shall be estimated in the SOW as accurately as possible but are subject to variance based on actual costs.
- Limited Liability. With regard to the services to be performed by either party pursuant to the terms of this Agreement, neither party shall be liable to the other party, or to anyone who may claim any right due to any relationship with the other party, for any acts or omissions in the performance of the services on the part of the party or on the part of the agents or employees of the party, except when these acts or omissions of the party are due to willful misconduct, as determined and adjudged by a court of competent jurisdiction. Each party agrees to indemnify and hold the other party harmless from any obligations, costs, claims, judgments, attorney’s fees, and attachments arising from or growing out of the services rendered to the other party pursuant to the terms of this Agreement or in any way connected with the rendering of said services, except when the same shall arise due to the willful misconduct of the other party, its authorized agents and/or employees and the other party is adjudged to be guilty of willful misconduct by a court of competent jurisdiction.
- Marketing. Client agree that Exclamation may identify Client in its promotional and marketing materials as an organization to which Exclamation has provided services. Subject to the terms of this Agreement, Client grants Exclamation a non-exclusive, non-transferable, royalty-free license to use Provider’s trademark(s) and logo(s) in conjunction with Exclamation’s promotion of its services to Client for marketing and promotional purposes. Furthermore, Exclamation reserves the right to reproduce any and all designs created in print and electronic media for Exclamation’s promotional purposes.
- Not a Joint Venture. The parties to this Agreement are not engaged in a joint venture. The use of Exclamation’s employees and/or agents to perform Services for the Client shall not be construed to create a joint venture. Exclamation is providing Services to the Client as an independent contractor and Exclamation’s employees and/or agents shall not be deemed or construed to be an employee or agent of the Client.
- Amount of Time Devoted to Services. Exclamation reserves the right to demand the increase or decrease of the time spent by the employees and or agents of Exclamation as Exclamation’s business shall require from time to time. Exclamation shall make every reasonable effort to comply with the Client’s requests and may adjust the fee for services as the parties shall agree.
- Governing Law. This Agreement, and all causes of action arising out of this Agreement, will be subject to the laws of the State of Wisconsin, without regard to its choice of law principles. The parties hereby consent and agree to submit to the exclusive jurisdiction of the state and federal courts having jurisdiction over Wood County, Wisconsin.
- Assignment. This Agreement shall not be assigned by either party without the express written consent of the other party.
- Legal Construction. Should any term of this Agreement be determined by a court of competent authority to be unenforceable, the remaining terms and conditions shall remain in force and effect until the Agreement is terminated according to its terms.
- Entire Agreement. This Agreement contains the entire agreement of the parties relating to the subject matter hereof and may not be waived, changed, modified, extended or discharged orally but only by agreement in writing, consented to in writing by Exclamation and Client. This Agreement shall supersede all prior agreements, negotiations, and undertakings between them, whether verbal or written, regarding the Services described herein or in the Exhibits hereto.
Your Agreement may be signed in counterparts each of which shall be deemed an original and all of which, when taken together, constitute one and the same document. The signature of any party to any counterpart shall be deemed a signature to, and may be appended to, any other counterpart. A signed copy of your Agreement, either transmitted by fax, email or other electronic reproduction shall be deemed an original for all purposes permitted under applicable law.
The parties execute your Agreement on the date stated on your Agreement, with the intent to be legally bound.