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Term of Agreement
The term of this Agreement shall begin on the Effective Date and shall remain in full force for an Initial Term of twelve (12) months. Upon the expiration of the Initial Term, this Agreement shall automatically renew. Either party may terminate this Agreement at the expiration of the Initial Term, or of any month-to-month term thereafter, by providing written notice of such termination at least 30 days prior to the expiration of said term. Upon termination of this Agreement, Customer shall return any Supplier-provided equipment to Supplier. Relationship of Parties
The parties intend that Supplier, in performing services specified in this Agreement, will act as an independent contractor and will have control of the work and the manner in which it is performed. Supplier is not to be considered an agent or employee of Customer and is not entitled to participate in any pension plans, bonus, stock, or any other benefits that Customer provides for its employees.
Confidential Information
For the purposes of this Agreement, “Confidential Information” means non-public information about the disclosing Party’s or any of its Affiliates’ business or activities that is proprietary and confidential, which will include, without limitation, all business, financial, technical and other information, including software (source and object code) and programming code, of a Party or its Affiliates marked or designated “confidential” or “proprietary” or by its nature or the circumstances surrounding its disclosure should reasonably be regarded as confidential. Confidential Information includes not only written or other tangible information, but also information transferred orally, visually, electronically or by any other means. Confidential Information will not include information that (i) is in or enters the public domain without breach of this Agreement, or (ii) the receiving Party lawfully receives from a third party without restriction on disclosure and to the receiving Party’s knowledge without breach of a nondisclosure obligation. Each of the Parties agree that (i) it will not disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement, and (ii) it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other Party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar type and importance. Notwithstanding the foregoing, each Party may disclose Confidential Information (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, including without limitation disclosure obligations imposed under the federal securities laws, provided that such Party has given the other Party prior notice of such requirement when legally permissible to permit the other Party to take such legal action to prevent the disclosure as it deems reasonable, appropriate or necessary, or (ii) on a “need-to-know” basis under an obligation of confidentiality to its consultants, legal counsel, Affiliates, accountants, banks and other financing sources and their advisors.
Proprietary Rights
All programs, specifications, applications, routines, subroutines, techniques, ideas for formulae utilized or developed by Supplier in connection with this Agreement are and will remain the sole property of Supplier unless otherwise provided for in this Agreement.
Liability of Supplier
Supplier will be liable to Customer for losses or damage only if due to the negligence of Supplier or any of its employees or contracted suppliers. Supplier shall not be liable for any loss or damage due to negligence or actions by Customer or any third party unless contracted by the Supplier. Supplier will not be liable for failure to provide, or delays in providing, services if due to any cause beyond Supplier’s reasonable control. Supplier will not be liable for any incidental, special or consequential damages of any nature, including, but not limited to, loss of anticipated profits or other economic loss in connection with, or arising out of the existence of, the furnishing, functioning, or customer’s use of, any item of equipment or services provided for in this agreement, or for specific performance.
Check Drafting – Bill Pay Customers
Supplier and Customer entered into a Service Agreement (“Service Agreement”) whereby Supplier agreed to provide, among other services, bookkeeping services. As part of said services, Supplier prepares checks to payees on checks that are either supplied by Customer or printed on Supplier’s blank check stock. Supplier has equipment and software capable of preparing checks from blank check stock. This process will print items such as the name of Customer, routing number, account number and signature of Customer’s authorized representative.
The parties consent to utilize the new equipment and software to prepare checks on Customer’s behalf. Customer hereby authorizes Supplier to print Customer’s address, check number, routing number, account number and the authorized representative’s signature, as written below. All terms and conditions of the Service Agreement shall remain in full force and effect, as if fully set forth herein. Customer will continue to submit all payables to Supplier via U.S. Mail or electronic mail, in the same manner as was performed prior to this Agreement. Supplier will provide Customer with monthly reports and annually as requested of each transaction performed by Supplier, including but not limited to balance sheet, profit & loss statements and a check ledger.
Miscellaneous
Notices. Any notice under this Agreement shall be in writing and shall be effective when actually delivered in person or three days after being deposited in the United States mail, registered or certified, postage prepaid and addressed to the party at the address stated in this Agreement or such other address as either party may designate by written notice to the other. Supplier will carry adequate insurance but not less than $500,000 of liability insurance for liability purposes spelled out for liability of supplier.
Waiver
Failure of either party at any time to require performance of any provision of this Agreement shall not limit the party’s right to enforce the provision, nor shall any waiver of any breach of any provision be a waiver of any succeeding breach of any provision or a waiver of the provision itself for any other provision.
Assignment
Except as otherwise provided within this Agreement, neither party hereto may transfer or assign this Agreement without the prior written consent of the other party.
Law Governing and Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois and any action on this Agreement shall be brought in a court of competent jurisdiction located in Fayette County, Illinois.
Attorney Fees
In the event an arbitration, suit or action is brought by any party under this Agreement to enforce any of its terms, or in any appeal therefrom, it is agreed that the prevailing party shall be entitled to reasonable attorneys’ fees to be fixed by the arbitrator, trial court and/or appellate court.
Modifications Must Be in Writing
This Agreement may not be changed orally. All modifications of this Agreement must be in writing and must be signed by each party.
Agreement Binding
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties hereto.
Counterparts and Facsimile
This Agreement may be executed in several counterparts and all so executed shall constitute one Agreement, binding on all the parties hereto even though all the parties are not signatories to the original or the same counterpart. Facsimile transmission of any signed original document, and the retransmission of any signed facsimile transmission, shall be the same as delivery of the original signed document. At the request of any party, a party shall confirm documents with a facsimile transmitted signature by signing an original document.
Savings Clause
If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or the application of such provision to persons or circum¬stances other than those as to which it is held invalid, shall not be affected thereby.
Authority
The corporate parties each separately represent and warrant that this Agreement is executed below by a corporate officer who has full power and authority to bind the corporation to this Agreement.