Managed Services Agreement

General Terms

These General Terms govern Customer’s access to and use of the Managed Services and constitute a binding contract between Customer and ibml. Customer’s use of any Managed Services is at all times subject to the terms and conditions outlined in these General Terms, which incorporate by reference all other terms and conditions governing Customer’s use of the Managed Services, as described in the Contract Terms.

1. Capitalized terms used in this Agreement and not otherwise defined herein have the meanings given to them below:
   • "Agreement" shall mean the Managed Services Agreement by and between the Parties, including any Modules selected in the Contract Terms.
   • "Authorized Users" shall mean any of Customer’s employees permitted to access and use the Software and/or Documentation pursuant to Customer’s License under the Software License Terms.
   • "Confidential Information" shall have the meaning given to that term in the Confidentiality Terms.
   • "Documentation" shall mean ibml’s then-current documentation specifying the functionality of the Managed Services that is made generally available by ibml to its customers, including ibml’s user manuals, handbooks, and installation guides relating to the Software installed by ibml on Customer’s Equipment.
   • "Equipment" shall mean the items of equipment described in a Product Specification.
   • "Equipment Support Services" shall mean those maintenance and support services described in the Equipment Support Terms.
   • "Feedback" shall mean any communications or materials suggesting or recommending changes to the Software or the Documentation, including without limitation, new features or functionality relating thereto.
   • "Holdover Date" shall mean the date the Term expires or upon which occurs the earlier termination of the Agreement.
   • "Holdover Fees" shall have the meaning given to that term in the Contract Terms.
   • "Installation Date" shall have the meaning given to that term in the Contract Terms.
   • "License" shall have the meaning given to that term in the Software License Terms.
   • "License Agreement" shall mean a license agreement between ibml or one of its affiliates and Licensor pursuant to which Licensor grants ibml or its affiliate a license to use Third-Party Software.
   • "Licensor" shall mean any licensor of Third-Party Software that, pursuant to a License Agreement, has granted ibml or one of its affiliates a license to use the Third-Party Software, including the right to sublicense, on a subscription basis, such Third-Party Software to ibml’s customers.
   • "Managed Services" shall mean the services provided by ibml pursuant to the Agreement, including (i) Customer’s access and exclusive use of the Equipment, (ii) a License to use the Software, upon the terms and conditions set forth in the Software License Terms, and (iii) the Support Services. For the avoidance of doubt, Managed Services excludes any Professional Services (other than certain Professional Services performed by ibml in connection with the commencement of the Managed Services and as described in the applicable Statement of Work)
   • "Managed Services Fee" shall mean the annual fees paid by Customer to ibml based on the terms set forth in the Contract Terms, for the right to receive the Managed Services.
   • "Module" or "Modules" shall mean these General Terms, the Contract Terms, the Standard Terms, the Software License Terms, the Software Support Terms, the Equipment Support Terms, and the Confidentiality Terms, individually or collectively as appropriate. For the avoidance of doubt, each reference in the Agreement to "Module" or "Modules" shall mean and include any Modules selected in the Contract Terms.
   • "Party" or "Parties" shall mean Customer and ibml, individually or collectively as appropriate.
   • "Product" or "Products" shall mean Equipment and Software, individually or collectively as appropriate.
   • "Professional Services" shall mean those professional services or other services described in a Product Specification or a Statement of Work, excluding any Support Services.
   • "Software" shall mean the software product(s) or program(s) described in a Product Specification, including any Third-Party Software.
   • "Software Support Services" shall mean those maintenance and support services described in the Software Support Terms.
   • "Statement of Work" shall mean a written statement of work that is subject to this Agreement, mutually agreed upon, and executed by the Parties for Professional Services to be provided to Customer by ibml.
   • "Support Services" shall mean the Equipment Support Services described in the Equipment Support Terms and the Software Support Services described in the Software Support Terms, individually or collectively as appropriate.
   • "Term" shall have the meaning given to that term in the Standard Terms.
   • "Third Party" means a supplier whose software is licensed for distribution by ibml to be sublicensed by ibml to its customers.
   • "Third-Party Materials" shall mean materials and information, in any form or medium, including any Third-Party Software or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Managed Services that are not proprietary to ibml.
   • "Third-Party Software" shall mean all software owned by a Third Party but licensed for distribution by ibml as part of the Managed Services.
2. Representations and Warranties; Limited Warranty.
   • Each Party represents and warrants to the other Party that: (i) it is duly organized and validly existing under the laws of its jurisdiction; (ii) it has the requisite power and authority to enter into this Agreement and to perform its obligations hereunder; and (iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid, and binding obligation of that Party, enforceable against that Party in accordance with its terms.
   • Each Party represents and warrants that: (i) it is in compliance with and shall comply with all applicable laws, regulations, and ordinances; and (ii) it has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
   • Customer covenants that it will not exercise any of its rights under this Agreement in any manner that could reasonably be expected to result in ibml being in breach of any of its obligations under any License Agreement or that otherwise could reasonably be expected to result in any Licensor having a right to terminate a License Agreement.
   • On or prior to the Effective Date of this Agreement, Customer has provided ibml with insurance certificates accurately evidencing that the insurance coverage required under the Standard Terms is in effect.
   • ibml shall replace any Equipment or Software that fails to operate in accordance with the manufacturer’s specifications and operations instructions or conform to the Documentation with identical or similar Equipment or Software (the "Warranty"). Such replacement shall be made as soon as practicable after Customer returns the non-conforming Equipment or Software. In accordance with ibml’s instructions and at ibml’s expense and risk of loss, Customer shall return all non-conforming Equipment and Software to ibml at the location specified by ibml.
   • The Warranty does not apply and shall become null and void if Customer breaches any material provision of this Agreement. In addition, the Warranty does not apply where the Product has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any oral or written instructions issued by ibml, or used with any hardware, software, or product that has not been previously approved in writing by ibml, or Customer alters or repairs such Product without the prior written consent of ibml.
   • EXCEPT FOR THE WARRANTY, THE MANAGED SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED "AS IS" AND IBML MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE MANAGED SERVICES AND PROFESSIONAL SERVICES, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. IBML MAKES NO WARRANTY OF ANY KIND THAT THE MANAGED SERVICES AND PROFESSIONAL SERVICES, OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
   • THE REMEDIES SET FORTH IN THIS SECTION ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND IBML’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTY.
3. Title and Risk of Loss. All right, title, and interest, in and to the Equipment, including any replacement parts installed by Customer, and in and to the Software, including all intellectual property rights therein, remains with ibml, and Customer shall acquire no right, title, or interest in the Equipment or the Software. Customer shall not pledge or encumber the Equipment in any way except for liens of ibml. Customer shall bear all risk of loss, damage, destruction, theft, and condemnation to or of the Equipment from any cause whatsoever ("Damage") until the Equipment has been returned to ibml in accordance with the Standard Terms. Customer shall notify ibml in writing promptly, but no later than five (5) days, of any such Damage.
4. Precautionary UCC-1 Financing Statement. Customer authorizes ibml to file precautionary Uniform Commercial Code ("UCC") financing statements and other similar filings and recordings with respect to the Products. Customer agrees not to file any corrective or termination statements or partial releases with respect to any UCCs or other similar filings or recordings filed by ibml in connection with the Products except (a) if ibml fails to file a corrective or termination statement or release on request from Customer after the expiration or earlier termination of this Agreement or (b) with ibml’s consent.
5. No Setoff. Customer shall not, and acknowledges that it will have no right, under this Agreement, any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to ibml or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by ibml or its affiliates, whether relating to ibml’s or its affiliates’ breach or non-performance of this Agreement or any other agreement between Customer or any of its affiliates, and ibml or any of its affiliates, or otherwise.
6. Indemnification.
   • ibml Indemnification.
     • ibml shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgements, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under the Agreement and the cost of pursuing any insurance providers ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or other proceeding ("Third-Party Claim") that Customer’s use of the Products (excluding Third-Party Materials) in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets (an "Infringement Claim"), provided that Customer promptly notifies ibml in writing of the Infringement Claim, cooperates with ibml, and allows ibml sole authority to control the defense and settlement of such Infringement Claim.
     • Customer will notify ibml promptly after it determines that a Third-Party Claim may reasonably result in the indemnification of the Customer pursuant to an Infringement Claim. Upon receipt of written notification in which Customer demands that ibml defend an Infringement Claim, ibml shall take control of the defense and investigation of such claim and engage counsel to handle and defend the Infringement Claim, at ibml’s sole cost and expense, except that ibml shall not be responsible for any compromise or expense made or incurred by Customer without ibml’s prior written consent.
     • If an Infringement Claim is made or appears possible, Customer agrees to permit ibml, at ibml’s sole discretion, to (A) modify or replace the Products, or any component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If ibml determines that neither alternative is reasonably available, ibml may terminate this Agreement, in its entirety or with respect to the affected Product, component or part, effective immediately on written notice to Customer.
     • ibml’s obligation to indemnify Customer for an Infringement Claim will not apply to the extent that the alleged Infringement Claim arises from: (A) use of the Products in combination with products, materials, data, software, hardware, equipment, or technology not provided by ibml or authorized by ibml in writing; (B) modifications to the Products not made by ibml; (C) Third-Party Materials; (D) use of the Products in a manner that does not materially conform with any usage specifications provided by ibml; (E) Customer's marketing, advertising, promotion or sale of any products using the Products; (F) Customer's (1) gross negligence or more culpable act or omission (including recklessness or willful misconduct), or (2) bad faith failure to materially comply with any of its obligations under this Agreement; or (G) an act, omission or other matter described below in Customer Indemnification, whether or not the same results in any Third-Party Claim against or Losses by any ibml Indemnitees.
   • Customer Indemnification. Customer shall indemnify, defend, and hold harmless ibml and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, "ibml Indemnitees") from and against any and all Losses incurred by ibml arising out of or resulting from any Third-Party Claim arising out of or occurring in connection with Customer’s: (i) negligence or willful misconduct; (ii) use of the Products in a manner not authorized or contemplated by this Agreement; (iii) modifications to the Products not made or approved in writing by ibml; (iv) use of the Products in combination with data, software, hardware, equipment or technology not provided by ibml or authorized by ibml in writing; (v) use of any version of the Software other than the most current version of the Software delivered to Customer; or (vi) breach of this Agreement, provided that Customer may not settle any claim against an ibml Indemnitee unless ibml consents to such settlement in writing, and further provided that ibml will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
   • Sole Remedy. THIS SECTION SETS FORTH CUSTOMER’S SOLE REMEDIES AND IBML’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT ANY PRODUCT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL IBML’S LIABILITY UNDER THIS SECTION EXCEED THE TOTAL OF THE AMOUNTS PAID TO IBML FOR THE MANAGED SERVICES PURCHASED HEREUNDER.
7. Limitation of Liability.
   • IN NO EVENT SHALL IBML BE RESPONSIBLE OR LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT,REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT IBML WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (iv) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
   • IN NO EVENT WILL IBML’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO IBML UNDER THIS AGREEMENT FOR THE MANAGED SERVICES AND PROFESSIONAL SERVICES, AS APPLICABLE, THAT ARE THE SUBJECT MATTER OF OR ARE DIRECTLY RELATED TO THE CAUSE OF ACTION.
8. Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and (b) any other provision that, to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
9. Corrupt Practices. Neither Party shall perform any acts or make any payments in violation of any applicable anti-corruption or anti-bribery legislation of the United States of America (including, the US Foreign Corrupt Practices Act of 1977), Canada (including, the Criminal Code (Canada) and the Corruption of Foreign Public Officials Act (Canada)), the United Kingdom (including, the Bribery Act 2010), the European Union, or any other jurisdiction in which actions contemplated hereunder may be taken, in each case as such legislation may be amended from time to time.
10. • Entire Agreement. These General Terms, together with the other Modules and any other documents incorporated herein or therein by reference, constitute the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersede all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. There are no warranties, representations, or other agreements between the Parties in connection with the Managed Services or Professional Services to be supplied hereunder except as specifically set forth in this Agreement. In the event of any inconsistency between the statements made in these General Terms, the other Modules, and any other documents incorporated herein or therein by reference, the following order of precedence governs: (i) first, these General Terms; (ii) second, the other Modules; and (iii) third, any other documents incorporated herein or therein by reference; provided, however, that the provisions contained in the Confidentiality Terms shall supersede any language to the contrary found in any other provision in the Agreement.
    • Each reference in this Agreement to "this Agreement," "the Agreement," "hereunder," "hereof," "herein," or words of similar meaning referring to the Agreement, and each reference in any selected Modules to "this Agreement," "the Agreement," or words of similar meaning referring to this Agreement mean and are a reference to the Agreement as a whole, including the selected Modules.
    • Notices. All notices, requests, consents, claims, demands, waivers, summons, and other legal process, and other similar types of communications hereunder must be in writing and addressed to the relevant Party at the address set forth in the Contract Terms. Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (i) upon receipt by the receiving Party and (ii) if the Party giving the notice has complied with the requirements of this Section.
    • Force Majeure. Any delay or failure of either Party to perform its obligations under this Agreement (other than the payment of money due hereunder) will be excused to the extent that the delay or failure was caused directly by an event beyond such Party's reasonable control, without such Party’s fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, epidemics, pandemics, embargoes, export control laws and regulations, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities) (each, a "Force Majeure Event"). The delayed Party must notify the other Party promptly upon the occurrence of a Force Majeure Event, or performance by the delayed Party will not be considered excused, and the delayed Party shall promptly inform the other Party of its plans to resume performance.
    • Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party; provided, however, ibml may, at any time, from time to time amend any of the terms contained in this Agreement by notice thereof to Customer to the extent that there is any material amendment to the terms of any agreements or contracts related to Third-Party Software that affects Customer’s rights hereunder or if a Licensor notifies ibml of any revisions to the delivery of any Third-Party Software (each, a "Third-Party Software Amendment"). Any amendments required hereunder pursuant to a Third-Party Software Amendment shall automatically become effective when notice is given as provided in this Agreement, or such later date as may be stated in ibml’s notice.
    • Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    • Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    • Governing Law. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the internal laws of the State of Alabama, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Alabama.
    • United Nations Convention. The Parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and any local implementing legislation related thereto.
    • Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, together with any other documents incorporated herein by reference, and all contemplated transactions, in any forum other than the United States District Court for the Northern District of Alabama or, if such court does not have subject matter jurisdiction, the courts of the State of Alabama sitting in Jefferson County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
    • Assignment. Customer may not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of ibml. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Customer of any of its obligations hereunder. ibml may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations under this Agreement without Customer’s prior written consent.
    • Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
    • Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. Despite the previous sentence, the Parties intend that Customer’s Warranty rights are the Customer’s exclusive remedies if the Equipment or Software fails to operate in accordance with the manufacturer’s specifications and operations instructions or conform to the Documentation.
    • Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under the Confidentiality Terms or, in the case of Customer, the Use Restrictions of the Software License Terms, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy, that the amount of such damages would be extremely difficult to measure, and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
    • Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
    • No Third-Party Beneficiaries. Other than the ibml Indemnitees, this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
    • Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.

[END OF GENERAL TERMS]