Terms and Conditions

1.  Price, Payment, and Taxes

Client agrees to pay the fees as set forth in the SOW. Termination of the SOW for any reason shall not affect the Client’s continuing obligation to pay all fees and costs invoiced by Evolving Solutions under terms of the agreement prior to the termination. All fees are exclusive of applicable taxes or other charges imposed by law. All taxes, if applicable, will be added to the fees and itemized or invoiced separately. In the event of Client’s default of any provision of this SOW, in addition to any other remedies to which Evolving Solutions may be entitled, Client shall pay all of Evolving Solutions’ costs and expenses of enforcing this SOW, including all reasonable attorney’s fees and expenses, whether incurred prior to or after commencement of any lawsuit.

2.  Warranty Disclaimer, Limitation of Liability, and Damages Cap

• (a) Unless expressly stated otherwise in this SOW, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. EVOLVING DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE SERVICES. EVOLVING NEITHER WARRANTS THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, OR ERROR FREE, NOR DOES EVOLVING MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES.
• (b) Neither party shall be liable to the other for any indirect, consequential, exemplary, treble, special, incidental or punitive damages, including without limitation, damages for costs incurred as a result of loss of use, loss of data, loss of property, or lost business, revenue, profits, or goodwill, arising in connection with this SOW, equipment, related products, documentation and/or the intended use thereof, under any theory of tort, contract, indemnity, warranty or strict liability, even if the party has been advised, knew or should have known of the possibility of such damages.
• (c)Evolving Solutions shall not be liable for damages that could have been avoided by Client’s use of reasonable diligence. The foregoing limitation applies to all causes of actions and claims, including, without limitation, breach of contract, breach of warranty, negligence, indemnity, strict liability, misrepresentation and other torts.
• (d) OTHER THAN FOR CLIENT’S OBLIGATION TO PAY INVOICED AMOUNTS, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING UNDER OR WITH RESPECT TO THIS SOW EVER EXCEED THE FEES CLIENT INVOICED FOR THE SERVICES PERFORMED IN THE SIX (6) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO SUCH DAMAGES, REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY, MISREPRESENTATION AND/OR OTHER TORTS). THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THESE LIMITS. Evolving Solutions shall not be liable for damages that could have been avoided by Client’s use of reasonable diligence. Notwithstanding any terms to the contrary, the limitations on damages in this Paragraph 2(d) shall not apply to Client’s breach of Section 5 (Non-Solicitation).
• (e) THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS PARAGRAPH 2 ARE FUNDAMENTAL ELEMENTS OF THIS SOW AND THE SERVICES WOULD NOT BE PROVIDED TO CLIENT ABSENT SUCH LIMITATIONS OF LIABILITY. CLIENT ACKNOWLEDGES AND ACCEPTS THE REASONABLENESS OF THE DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS PARAGRAPH 2.

3.  Responsibilities, Systems Administration, and Client Data

Client will be solely responsible for the management of its systems administration, data back-up, data recovery, and disaster recovery measures. Evolving Solutions will not be responsible or held liable for Client’s internal processes and procedures to insure the management, administration, protection, loss, confidentiality, or security of Client data or information.

4.  Independent Contractor

Evolving Solutions shall conduct its business as an independent agent with respect to the Client. Evolving Solutions agrees that it will, at all times, represent to third persons and to the public generally and to all governmental bodies, including, but not limited to, federal, state or local authorities that the business conducted by Evolving Solutions with respect to Client is that of an independent agent and that such is the sole relationship between the parties. It is expressly understood that Evolving Solutions is not in any way constituted the legal representative of Client for any purpose whatsoever with respect to the SOW. Client shall deduct no income tax or other withholdings whatsoever from payments due Evolving Solutions.

5.  Non-solicitation

Client agrees that during the term of this SOW and for a period of two (2) years after the termination or expiration of this SOW, the Client shall not (without the prior written consent of Evolving Solutions), on its own behalf or on behalf of any other person or entity, directly or indirectly employ or retain, or solicit the employment  or retention of, any partner, principal, director, employee or independent contractor of Evolving Solutions or any subcontractor of Evolving Solutions that participates in the performance of the services herein. The Client and Evolving Solutions further agree that, if Client breaches this covenant of non-solicitation, damages will be impossible to ascertain and in addition to any other remedies which Evolving Solutions may have at its disposal, the Client will pay to Evolving Solutions agreed and liquidated damages (and not as a penalty), a sum equal to one half (½) of the annualized direct and indirect compensation at the time of the breach for the partner, principal, director, employee or independent contractor.

6.  Intellectual Property

Client recognizes and acknowledges that any and all intellectual property, as defined in this section 6, authored, prepared, created, made, delivered, conceived, altered, modified or reduced to practice by Evolving Solutions in the course of providing the services (collectively, “work product”) is the sole and exclusive property of Evolving Solutions. Client hereby irrevocably assigns all right, title and interest in and to such work product to Evolving Solutions.

7.  Termination

• (a) Evolving Solutions or Client shall have the right to terminate this SOW as follows: (i) For cause, if (a) either party fails to perform any material term or condition herein, including remitting payment when due, and does not remedy the failure within thirty (30) days after the receipt of written notice of such default given by the non-defaulting party, or; (ii) A party becomes insolvent, files, or has filed against it a petition under applicable bankruptcy or insolvency laws which is not dismissed within ninety (90) day; proposes any dissolution, composition or financial reorganization with creditors; makes an assignment for the benefit of creditors; or if a receiver, trustee, conservator, liquidator or similar agent is appointed or takes possession with respect to any property or business of the defaulting party. Such a termination shall not relieve either party from its obligations to pay the other any sums accrued hereunder prior to such termination.
• (b) Evolving Solutions shall be entitled to the following rights upon termination of the SOW: (i) Recovery of past due amounts and any payments and other amounts owing.

8.  Indemnification

Client expressly agrees to defend, indemnify, and hold harmless Evolving Solutions, its affiliates, employees, officers, directors and contractors from any claims, losses, liabilities, expenses, costs, suits or damages, including reasonable legal fees and claims of infringement (hereafter the “claims”), arising from or in connection with:

• The Client’s breach of this SOW;
• Any claims of intellectual property infringement related to the services and arising by or through the Client;
• Any claims of injury to persons, properties or the environment based on either strict liability in tort, negligence, breach of warranties or violations of any regulatory law or requirement, or:
• Any failure of the Client to comply fully with all applicable laws.

9.  Governing Law; Jurisdiction

This SOW shall be governed and construed in accordance with the laws of the State of Minnesota, including all matters of construction, validity, enforcement, and performance, without regard to its conflict of law provisions. The parties hereby consent to the exclusive jurisdiction of the Minnesota State and Federal courts over matters arising in Hennepin County, Minnesota for all purposes.

Force Majeure. Except for Client’s payment obligations hereunder, neither party will be liable for, nor will either party be considered in breach of this SOW due to, failure to perform its obligations as a result of a cause beyond its control, including any natural calamity, act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, disruption or outage of communications, power or other utility, failure to perform by any supplier or other third party, or other cause with could not have been prevented with reasonable care. In the event any force majeure event affects Evolving’s ability to deliver Services then the Fees for such Services due during such period may be waived upon request and the term of this SOW shall be extended by an equal period. Notwithstanding any terms to the contrary, if Evolving’s inability to deliver Services due to a force majeure event continues for more than ten (10) consecutive business days, then Client may, without penalty, terminate this SOW upon notice immediately and Evolving will promptly refund to Client all prepaid fees under such Statement(s) of Work calculated from the date of the force majeure event.