Statement of Confidentiality and Client Rights and Responsibilities

1.                  CONFIDENTIALITY

1.1              Protection of Confidential Information.  Confidential information includes but is not limited to information which relates to research, development, trade secrets, or business affairs, but does not include information which is generally known or easily ascertainable by nonparties of ordinary skill in computer design, programming, networking, information technology, or the specific business interests of either Party. Client and Company each shall (i) keep confidential all Confidential Information given by one Party (the "Disclosing Party") to the other Party (the "Recipient"), or otherwise obtained by the Recipient, and shall not (except as expressly permitted by this Agreement or by the Disclosing Party in writing) disclose the Confidential Information to any third party or make copies of Material containing the Confidential Information except as necessary to perform under this Agreement; (ii) take reasonable steps to safeguard the Disclosing Party's Confidential Information; (iii) implement reasonable security practices against any unauthorized copying, use, disclosure, access, damage or destruction of the Disclosing Party's Confidential Information; (iv) take all reasonable steps to enforce against any third party (and to assist the other Party to so enforce) any obligation of confidence imposed or required to be imposed by this Agreement; and (v) do all things, execute all documents and give all assistance reasonably required by the Disclosing Party to enforce any obligation of confidence imposed or required to be imposed by this Agreement.

1.2              Exceptions to Obligations of Confidentiality

1.2.1        Nothing in this Agreement shall prohibit the use, copying or disclosure by the Recipient of Confidential Information (other than Confidential Information subject to protection by Law) to the extent that (a) such Confidential Information is publicly available other than through the fault of the Recipient or a person that was provided with the information by the Recipient; (b) such Confidential Information has been independently developed by the Recipient or its Affiliates without reference to the Confidential Information of the other Party; (c) the Disclosing Party has approved in writing the particular use or disclosure of the Confidential Information; (d) such Confidential Information is already known by the Recipient without an obligation of confidentiality; or (e) such Confidential Information is independently or properly received from a third party without an obligation of confidentiality.

1.2.2        Nothing in this Agreement shall prevent the Recipient from disclosing any Confidential Information where the disclosure is legally required to be disclosed by Recipient pursuant to judicial, regulatory, or governmental order, provided that the Recipient (a) uses commercially reasonable efforts to minimize any such disclosure and, to the extent permitted by applicable law, assists the Disclosing Party in preventing or restricting the disclosure; (b) where practicable and permitted by applicable law, gives the Disclosing Party prompt written notice of such requirement to disclose to enable the Disclosing Party to seek an appropriate protective order; and (c) uses commercially reasonable efforts to require the recipient of such Confidential Information to preserve the confidential nature of the Confidential Information once disclosed.

1.3              Period of Confidentiality.  The Parties' obligations of non-disclosure and confidentiality with respect to the other Party's Confidential Information shall survive the expiration or termination of this Agreement for the longer of: (i) the period required by applicable Law, or (ii) five years following the termination of this Agreement.

1.4              Returning Material, Data and Information.  All Confidential Information referred to above and reports, drawings, computer programs, data, devices, models, and similar items relating to the Disclosing Party’s business shall remain the exclusive property of the Disclosing Party.  On Termination of this Agreement, the other Party shall promptly return all or any specified part of the Party's Confidential Information and all physical and written records containing the Party's Confidential Information.

1.5              Equitable Remedies.  The parties acknowledge that, due to the unique nature of Confidential Information, there can be no adequate remedy at Law for breach of this Article 9, and that such breach would result in immediate and irreparable harm to the Disclosing Party; therefore, in addition to whatever other remedies the Disclosing Party might have at Law or under this Agreement, the Disclosing Party shall be entitled to seek immediate injunctive relief to compel Recipient to cease and desist all unauthorized use and disclosure of the Disclosing Party's Confidential Information.


2.1              Rights in Client Data.  Client Data shall be and remain, as between the Parties, the property of Client and nothing in this Agreement shall grant to Company any right, title or interest in such information.  No Client Data, or any part thereof, may be assigned, leased, or otherwise disposed of to third parties by Company or commercially exploited by or on behalf of Company.  Client Data shall only be used by Company for the purpose of performing the Services under this Agreement and pursuant to the terms of this Agreement.  Upon Client's request, on termination or expiration of this Agreement for any reason (including termination for cause) or, with respect to any particular data, on such earlier date that the same will be no longer required by Company in order to render the Services hereunder, such Client Data (including copies thereof) will be promptly returned to Client by Company in a form reasonably requested by Client or, if Client so elects, will be destroyed; provided that Company shall have no obligation to destroy any Client Data that, pursuant to Company's reasonable belief based upon the advice of counsel, is subject to a claim, dispute, lawsuit, or subpoena or in any other circumstances in which Company reasonably believes the destruction of such Client Data would be unethical or unlawful until such issue is resolved.

2.2              HIPAA.  (IF Applicable and Client systems contain Electronic Protected Health Information - ePHI) Company and Client agree to enter into a Business Associate Agreement attached to this agreement, if applicable for clients whose data is subject to regulation under the Health Insurance Portability and Accountability Act (HIPAA).

2.3              Security.  Company will establish and maintain environmental, safety and facility procedures, data security procedures and other safeguards against the destruction, loss, unauthorized access or alteration of Client Data in the possession of Company which are no less rigorous than those maintained by Client as of the Effective Date and no less rigorous than those maintained by Company for its own information of a similar nature, and in all events adequate to meet the requirements of applicable Laws.  Client will have the right to establish backup security for Client Data and to keep backup Client Data and Client Data files in its possession if it chooses.  Without limiting the generality of the foregoing, Supplier Personnel will not attempt to access any data, files or programs which they are not entitled to access under this Agreement.  If Company discovers that such access was attained, Company will immediately report such incident to Client, describe in detail any accessed materials and return to Client any copied or removed materials.  Company will institute systems security measures consistent with commercially reasonable practices in the information technology services industry to guard against the unauthorized access, alteration or destruction of Client Data.

3.                  SOFTWARE RIGHTS

3.1              Intellectual Property Rights existing at the Effective Date.  This Agreement shall not be deemed to assign or transfer ownership by any Party of any Intellectual Property Rights existing as of the Effective Date.

3.2              Supplied Software and Materials. Company shall retain all right, title and interest in and to Supplied Software, Supplied Materials and any Modifications to Supplied Software or Supplied Material (“Performance Tools”), including all Intellectual Property Rights therein, which are offered for the benefit of Client in performance of the Services.

3.3              Ownership of Developed Software. Company shall retain all copyright, patent, trade secret and other intellectual property rights Company may have in anything created or developed by Company for Client under this Agreement ("Work Product"). The license is conditioned upon full payment of the compensation due Company under this Agreement.  The license shall be a perpetual nonexclusive license, authorizing Client to (i) install the Software on computer systems owned, leased or otherwise controlled by Client; (ii) utilize the Software for its internal data-processing purposes (but not for time-sharing or service bureau purposes); and (iii) copy the Software only as necessary to exercise the rights granted in this Agreement.


4.1              Client Representative.  On or promptly following the Effective Date, Client shall designate one individual to whom Supplier communications concerning this Agreement may be addressed (the "Client Representative"), who shall have the authority to act on behalf of Client and the Service Recipients in all day-to-day matters pertaining to this Agreement.  Client may change the designated Client Representative from time to time by providing notice to Company.

4.2              Cooperation.  Client shall cooperate with Company and its Suppliers by, among other things, making information, management decisions, acceptances and approvals of Client available as required in this Agreement within the time periods specified herein for such information or approvals or, where no time period is specified, within a reasonable time period.  In addition, Client shall notify Company on a reasonably timely basis if Client disagrees with a decision made or action taken by Company or Company’s Supplier where Client has been informed of or has knowledge of such decision or action and then disagrees.  The Client Representative or his or her designee will be the principal point of contact for obtaining such decisions, information, approvals and acceptances.  Client acknowledges that certain Services to be provided by Company may be dependent on Client providing certain data, information, or assistance, and that such cooperation may be essential to the performance of Services provided by Company.  The parties agree that any delay or failure by Company to provide Services hereunder which is caused by Client’s failure to provide timely cooperation reasonably requested by Company shall not  be deemed to be a breach of Company’s performance obligations under this Agreement.

4.3              Software Licensing.  Company does not support unlicensed software. Client represents that all installed software is licensed. In the event that Client has any unlicensed software on premises, Client is responsible for notifying Company of such so that a remediation plan can be prepared and implemented to assist Client in achieving 100% license compliance.

4.4              Additional Client Responsibilities.  In addition to the responsibilities set forth in Section 6 of this agreement, Client agrees to assume the following responsibilities:

4.4.1        Maintain an adequate level of training for Client’s staff;

4.4.2        Maintain vendor supportable versions of software and hardware in accordance with manufacturer or publisher’s specifications;

4.4.3        Purchase an adequate supply of onsite storage, and/or offsite storage space as applicable to data requiring backup (if not provided by Company in Schedule A of this Agreement);

4.4.4        Purchase and maintain internet connectivity sufficient for backing up data requiring backup in a timely manner;

4.4.5        Maintain required minimum standards for services as published by Company.

5.                  USE OF CLIENT FACILITIES

5.1              Client shall provide Company and its agents and representatives access to enter into portions of the Client Facilities occupied by equipment covered under this agreement.  Company shall use Client Facilities in a reasonable manner to fulfill the obligations defined under this agreement, minimizing interface with Client’s and Client’s contractors’ operations.

5.2              Company shall not permit any other person to use Client Facilities, other than Supplier Subcontractors and Supplier Personnel, without Client's prior written approval.


6.1              Financial Responsibility.

6.1.1        Unless otherwise expressly provided in this agreement or described in Schedule A, Client shall be responsible for third party fees or expenses incurred on and after the Effective Date associated with Client-owned new, substitute or replacement Software, Materials, Equipment, Equipment leases or Third Party Contracts (including upgrades, enhancements, new versions or new releases of such Software, Materials, or Equipment).

6.1.2        With respect to Equipment and Software for which Client has financial responsibility, Client shall enter into or maintain in effect commercially reasonable and appropriate maintenance agreements with applicable Client third party contractors that are reasonably adequate to allow Company to provide the Services in accordance with this Agreement.

6.2              Client Provided Equipment.

6.2.1        As of the Effective Date, Client grants to Suppliers, Supplier Personnel and Supplier Subcontractors for the sole purpose of performing the Services, the right of access to, and use of, Client Equipment that is owned or leased by any of the Service Recipients or any of their Affiliates.

7.                  LIMITED WARRANTY

7.1              Company warrants to Client that the material, analysis, data, programs, and services to be delivered or rendered under this Agreement will be of the kind and quality designated and will be performed by qualified personnel.

7.2              Company offers no guarantees or warranties, express or implied, as to system availability and functionality during any phase of its support services and makes no guarantees or warranties, expressed or implied, regarding the ability to resolve computer-related problems, loss of use of software, the cost of any substitute equipment or program, to recover data, or to avoid losing data.

7.3              Limitations of Liability. Company makes no other warranties, whether written, oral or implied, including without limitation warranty of fitness for purpose of merchantability. In no event shall Company be liable for indirect, consequential, incidental, collateral, exemplary, punitive or special loss or damages (including loss of profits, revenue or anticipated savings) regardless of the form of the action or the theory of recovery (whether based upon an action or claim in contract, tort, warranty, negligence, intended conduct or otherwise) either in contract or tort, whether or not the possibility of such damages has been disclosed to Company in advance or could have been reasonably foreseen by Company, and in the event this limitation of damages is held unenforceable then the parties agree that by reason of the difficulty in foreseeing possible damages all liability to Client shall be limited to the total dollar amount of services paid by Client to Company in the previous three full months.

8.                  INDEMNITY

8.1              The Parties agree to and shall indemnify, defend and hold harmless each other and their respective successors, officers, directors, agents, and employees, from and against any and all actions, claims, losses, damages, causes of action, suits, and liability of every kind, including all expenses of litigation, court costs, and attorney's fees, for injury to or death of any person, or for damage to any property, arising out of or in connection with, any claims arising out of any negligent act or omission on the party of the indemnifying party, its successors, officers, directors, agents, and employees.

9.                  DISPUTE RESOLUTION.

9.1              Dispute Resolution.  The Parties desire to avoid all forms of traditional litigation with respect to any and all disputes, controversies or claims concerning, arising out of or relating to this Agreement ("Disputes") and therefore agree that any such Dispute between the Parties will be resolved using informal Dispute resolution procedures as follows: Either Party may provide the other Party written notice of a Dispute (the "Dispute Notice").  Upon receipt of the Dispute Notice, the Client Representative and Company Client Executive shall use good faith efforts to resolve the Dispute.  Disputes that cannot be resolved by the Client Representative and Company within 30 days after receipt of the Dispute Notice shall be submitted to binding arbitration with the American Arbitration Association, to be determined and resolved by a single arbitrator the rules and procedures in effect at the time of submission and the Parties hereby agree to share equally in the costs of said arbitration.  The Parties further agree that upon the resolution of the dispute, the prevailing party shall be entitled to recover reasonable and necessary attorney’s fees and costs of arbitration to include the arbitrator’s fees subject to submission and determination by the arbitrator of the amount of reasonable fees and costs.

9.2              Equitable Relief.  Each Party shall be entitled to seek equitable relief against the other Party (in addition to any other rights available under this Agreement or at Law) for any breaches of its obligations under this Agreement.

10.              FORCE MAJEURE

10.1          Force Majeure Events.  Neither Party ("Non-Performing Party") shall be liable for any breach, or delay in performance, of its obligations under this Agreement if, and to the extent that, (a) the breach or delay is directly caused by fire, flood, earthquake, elements of nature or act of God; war, riot, civil disorder or revolution; industry-wide strikes, lock-outs or labor disputes; or other events beyond the Non-Performing Party's reasonable control; (b) such breach or delay is not the fault of the Non-Performing Party; (c) such breach or delay could not have been prevented by the Non-Performing Party taking reasonable precautions, and (d) such breach or delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the Non-Performing Party through the use of alternate sources, workaround plans or other means (including with respect to Company by Company meeting its obligations for performing disaster recovery services as described in this Agreement) (any such event for which a Non-Performing Party is not liable for default or delay in the performance of its obligations under this Section 15.1 is hereafter referred to as a "Force Majeure Event".

10.2          Notice.  Upon the occurrence of a Force Majeure Event, (i) the Non-Performing Party shall immediately notify the other Party of the occurrence of the Force Majeure Event, describing the circumstances causing such delay of performance to a reasonable level of detail, and giving an estimate of when performance will recommence; and (ii) the Non-Performing Party shall perform (or recommence performing) its obligations as soon as, and to the extent, possible, including through the use of alternative sources, workarounds and plans.

11.              GENERAL

11.1          Staff. Company is an independent Contractor and Company is not employed by Client. Company is hereby contracting with Client for the services described in this Agreement and Company reserves the right to determine the method, manner, and means by which the services will be performed. Company is not required to perform the services during a fixed hourly or daily time.  Company shall not be required to devote his full time to the performance of the services required hereunder, and it is acknowledged that Company has other clients and offers services to the general public. The order or sequence in which the work is to be performed shall be under the control of the Company. Client shall not provide any insurance coverage of any kind for the Company, and Client will not withhold any amount that would normally be withheld from an employee's pay.

11.2          Non-Solicitation of Employees and Subcontractors. Except as expressly set forth herein, during the Term and for a period of 24 months thereafter, Company will not solicit for employment directly or indirectly, nor employ, any employees of a Service Recipient with whom Company came into contact in connection with the activities under this Agreement without the prior approval of Client.  During the term of this agreement and for a period of 24 months thereafter, Client agrees not to solicit, recruit, nor employ any employee or subcontractor of Company for work of any kind, either as an employee or as an independent subcontractor without the prior written consent of the President or Chief Executive Officer of Company. In addition, Client recognizes that because of the substantial recruitment and training costs in the Information Technology industry, Client agrees that liquidated damages for such breach will be 30% of the employee or contractor’s then current annualized compensation, subject to a $10,000 minimum. This provision shall not operate or be construed to prevent or limit any employee's right to practice his or her profession or to utilize his or her skills for another employer or to restrict any employee's freedom of movement or association.

11.3          Drug Free Workplace Certification.  Company agrees to comply with the provisions of the Illinois General Assembly regarding maintenance of a Drug-Free Workplace.  Company agrees to notify its employees that they are prohibited from engaging in the unlawful manufacture, distribution, dispensation, possession or use of controlled substances.

11.4          Binding Nature and Assignment.  This Agreement will be binding on the Parties and their respective successors and permitted assigns.  Neither Party may, or will have the power to, assign this Agreement without the prior written consent of the other.  The Parties shall not unreasonably withhold consent.  Any attempted assignment that does not comply with the terms of this Section shall be null and void.

11.5          Entire Agreement; Amendment.  This Agreement, including any Schedules and Exhibits referred to herein and attached hereto, each of which is incorporated herein for all purposes, constitutes the entire agreement between the Parties with respect to the subject matter hereof.  There are no agreements, representations, warranties, promises, covenants, commitments or undertakings other than those expressly set forth herein.  This Agreement supersedes all prior agreements, representations, warranties, promises, covenants, commitments or undertaking, whether written or oral, with respect to the subject matter contained in this Agreement.  No amendment, modification, change, waiver, or discharge hereof shall be valid unless in writing and signed by an authorized representative of the Party against which such amendment, modification, change, waiver, or discharge is sought to be enforced.

11.6          Notices.  All notices, requests, demands, and determinations under this Agreement (other than routine operational communications), will be in writing and will be deemed duly given (i) when delivered by hand, (ii) one day after being given to an express overnight courier with a reliable system for tracking delivery, or (iii) six calendar days after the day of mailing, when mailed by United States mail, registered or certified mail, return receipt requested, postage prepaid.
A Party may from time to time change its address or designee for notification purposes by giving the other prior written notice of the new address or designee and the date upon which it will become effective.

11.7          Counterparts.  This Agreement may be executed in several counterparts, all of which taken together shall constitute one single agreement between the Parties hereto.

11.8          Headings.  The article and section headings and the table of contents used herein are for reference and convenience only and shall not be considered in the interpretation of this Agreement.

11.9          Severability.  In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the Parties, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law. The remaining provisions of this Agreement and the application of the challenged provision to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision shall be valid and enforceable to the full extent permitted by law.

11.10      Consents and Approval.  Except where expressly provided as being in the sole discretion of a Party, where agreement, approval, acceptance, consent, confirmation, notice or similar action by either Party is required under this Agreement, such action shall not be unreasonably delayed or withheld.  An approval or consent given by a Party under this Agreement shall not relieve the other Party from responsibility for complying with the requirements of this Agreement, nor shall it be construed as a waiver of any rights under this Agreement, except as and to the extent otherwise expressly provided in such approval or consent.

11.11      Waiver of Default; Cumulative Remedies.

11.11.1 A delay or omission by either Party hereto to exercise any right or power under this Agreement shall not be construed to be a waiver thereof.  A waiver by either of the Parties hereto of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant herein contained.  All waivers must be in writing and signed by the Party waiving its rights.

11.11.2 Except as expressly set forth herein, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise. The election by a Party of any remedy provided for in this Agreement or otherwise available to such Party shall not preclude such Party from pursuing any other remedies available to such Party at law, in equity,  by contract or otherwise.

11.12      Survival.  Any provision of this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement shall survive any termination or expiration of this Agreement and continue in full force and effect.  Additionally, all provisions of this Agreement will survive the expiration or termination of this Agreement to the fullest extent necessary to give the Parties the full benefit of the bargain expressed herein.

11.13      Publicity.  Neither Party shall use the other Party's or its Affiliates' (and Company shall not use a Service Recipient's) name or mark or refer to the other Party or its Affiliates' (or a Service Recipient in the case of Company) directly or indirectly in any media release, public announcement, or public disclosure relating to this Agreement, including in any promotional or marketing materials, customer lists or business presentations without the prior written consent of the other Party prior to each such use or release.  Neither Party shall make any public statements about this Agreement, the Services or its relationship with the other Party without the other Party's prior approval.  Notwithstanding the foregoing, (i) either Party may privately indicate to third parties that Company is providing services to the Service Recipients, unless directed not to do so by Client, (ii) Company may use Client as a private reference, unless directed not to do so by Client, and (iii) either Party may make such press releases, public announcements, filings and other public disclosures as may be required by Law, provided that, such Party (1) gives the other Party prior notice of the required or ordered press release, public announcement, filing or public disclosure and (2) incorporates any reasonable amendments requested by the other Party that do not affect compliance with the applicable Law or order.

11.14      Service Marks.  Each Party agrees that it shall not, without the other Party's prior consent, use any of the names, service marks or trademarks of the other Party (or a Service Recipient in the case of Company) in any of its advertising or marketing materials, without the prior written consent of the other Party prior to each such use or release.

11.15      Export.  The Parties acknowledge that certain Equipment, Software and technical data to be provided hereunder and certain transactions hereunder may be subject to export controls under the laws and regulations of the United States, the European Union, the United Nations and other jurisdictions.  No Party shall export or re-export any such items or any direct product thereof or undertake any transaction or service in violation of any such laws or regulations.

11.16      Third Party Beneficiaries.  Except as expressly provided herein, this Agreement is entered into solely between, and may be enforced only by, Client and Company.  This Agreement shall not be deemed to create any rights or causes of action in or on behalf of any third parties, including without limitation employees, suppliers and customers of a Party, or to create any obligations of a Party to any such third parties.  Service Recipients shall not be a party to this Agreement and may not enforce any obligations or liabilities of Client under this Agreement except through Client.

11.17      Order of Precedence.  In the event of a conflict, the main body of this Agreement (including Articles 1 through 16 and Schedule A) shall take precedence over the Schedules and Exhibit attached hereto.

11.18      Further Assurances.  Each Party covenants and agrees that, subsequent to the execution and delivery of this Agreement and without any additional consideration, each Party shall execute and deliver any further legal instruments and perform any acts that are or may become necessary to effectuate the purposes of this Agreement.

11.19      Acknowledgment.  The Parties each acknowledge that the terms and conditions of this Agreement have been the subject of active and complete negotiations, and that such terms and conditions should not be construed in favor of or against any Party by reason of the extent to which any Party or its professional advisers participated in the preparation of this Agreement.

11.20      Jurisdiction.  The enforcement of this agreement shall be governed by and construed in accordance with the laws of the State of Illinois.  Venue of any arbitration or litigation arising hereunder shall be DuPage County, Illinois.