This “TE-Now Terms & Conditions” (the “Agreement”), between Total Expert, Inc., a Delaware corporation with its principal place of business at 1600 Utica Ave S, Suite 600 St. Louis Park, MN 55416-3687 (Total Expert), and Customer takes effect on the “Effective Date” stated on Customer’s Order Form.

Recitals

  1. Total Expert’s proprietary web-based technology platform provides a range of solutions for use by real estate agents, real estate brokers, mortgage lenders, homebuilders, banks, and credit unions to market their respective businesses directly to consumers and facilitate marketing and co-marketing activities through one or more software modules.
  2. Customer is a credit union or bank that desires to obtain from Total Expert a subscription-based license to access and use the Total Expert software.
  3. Total Expert and Customer desire to enter into this Agreement to license

1 Software Subscription

1.1 License Grant

Total Expert grants to the Customer a limited, non-sublicensable, non-exclusive, non-transferable, subscription-based license to access and use the Total Expert software module(s) described in one of more Order Forms (the “Platform”) pursuant to the terms of this Agreement.

1.2 Use by Other Entities

 Customer may use the Platform only in the conduct of its own internal business and as intended under the Order Form, including use of certain modules by co-marketing partners is permitted. Customer may not use the Platform to process the work of any third party or any non-Affiliate. For purposes of this Agreement, “Affiliate” means any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, Customer, as of the Effective Date of this Agreement. Customer is responsible for all users of the Platform authorized under this Agreement. 

1.3 Additional Use Restricitions

 Customer may not: (a) copy or otherwise reproduce or permit the copying or other reproduction of all or any part of the Platform except as otherwise permitted herein; (b) reverse engineer, decompile, disassemble or create derived works based on the Platform; (c) modify, adapt, translate into other programming forms or languages or extend the Platform to operate in other environments or on other platforms, except in accordance with this Agreement; or (d) allow access to the Platform by other software products for any purpose without prior approval of Total Expert. 

1.4 Platform Updates and Upgrades

Total Expert may make updates or upgrades to the Platform module(s) currently licensed, which will be provided when and if made available to customers generally. Total Expert is not obligated to develop any future programs or functionality. Total Expert will manage and install all updates and upgrades for the Platform. Customer understands and agrees that from time to time, Total Expert may communicate directly with Customer’s users and other users under Customer’s license using electronic and other means. Such communication will be restricted to content relating to planned and actual product changes and enhancements, product education, product feedback and suggestions, system availability, and other content relevant and important to the productive use of the Platform.

2 Subscription Services

2.1 Implementation

Total Expert may collaborate with the Customer to perform initial configuration of the Platform module(s) identified on the Order Form and related Statement of work (“SOW”), if applicable. In the event of a conflict between any term of this Agreement and an Order Form or SOW, the terms of the Order Form or SOW will prevail.

2.2 Support Services

The Total Expert Help Desk will provide support services to the Customer’s designated users to address improper functioning of the Platform at no additional cost.

Customer agrees that support services are for technical product support, and such services are not to be used as a substitute for proper training and education. Total Expert is under no obligation to provide support with respect to: (a) a release or feature for which support has been discontinued; (b) use other than in accordance with Total Expert documentation; (c) discrepancies that do not significantly impair or affect the operation of the Platform; or (d) any systems, programs or configuration not supplied by Total Expert.

Platform support will be made available Monday through Friday between 8 am and 7 pm Central Time, excluding holidays. Help Desk Support is available by telephone (800-830-9085), email (support@totalexpertinc.com), and live chat within the Total Expert Platform.

Customer requests for support or professional services outside the scope of the Agreement must be obtained under a separate Order Form or Statement of Work (“SOW”).

2.3 Service Level Commitment

Total Expert will make commercially reasonable efforts to assure that the Platform will be continuously available. Standard maintenance and backup procedures will cause temporary downtime during which the Platform cannot be used (“Scheduled Downtime”). Total Expert will make commercially reasonable efforts to make the Platform Available 99.95% of the time (“Uptime”) except for (a) such Scheduled Downtime which will be published at least 1 week in advance; (b) error incidents caused by Customer’s data, equipment or acts or omissions; (c) emergency maintenance; (d) any unavailability caused by circumstances beyond Total Expert’s reasonable control, including without limitation, force majeure events; and (e) Customer’s internet service provider failures or delays. It is possible that there will be other interruptions to the Platform during non-scheduled downtime. Total Expert will make commercially reasonable efforts to promptly address errors and omissions in the Platform. The Platform may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Total Expert is not responsible for any delays, delivery failures, or other damage resulting solely from such problems. 

Should an event arise causing an unavailability of services, Total Expert will make commercially reasonable efforts to restore the availability of the Services promptly. Total Expert has a Recovery Time Objective of within two (2) hours and a Recovery Point Objective of 24 hours.

Should Total Expert fail to achieve 94% in any three months in a rolling 12 month period, Customer will have the right to terminate this Agreement for cause, in which case Total Expert will refund to Customer any prepaid fees for the remainder of the Term after the date of termination.

3 Customer Responsibilities

3.1 Compliance with Laws

Customer is responsible for understanding and complying with all applicable laws regarding its use of the Platform and all use of the Platform in its place or places of business, regardless of country or jurisdiction. Total Expert makes no representations or warranties with respect to compliance with any applicable law or regulation regarding fees or payments for the Platform or regarding any fees or payments made by or imposed on any co-marketer. It is Customer’s sole obligation to conduct activities in compliance with all applicable laws and regulations including, without limitation, the federal Real Estate Settlement Procedures Act and its implementing regulations and all applicable data protection and privacy laws.

3.2 Content

Customer is responsible for all content it transmits, stores, or otherwise makes available through the Platform. Customer will not use the Platform to upload or otherwise transmit any content that: (a) is knowingly inaccurate, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) is harmful to minors in any way; or (c) impersonates any person or entity. Total Expert does not pre-screen or approve content posted, emailed, or otherwise made available through the Platform. Total Expert has the right (but not the obligation) in its sole discretion to refuse, delete or move any content that is in violation of this Agreement. Customer bears all risk associated with the use of any content made available through the Platform. Customer retains all right, title and interest (including, where appropriate, copyright and other proprietary or intellectual property rights) in the content, information and files owned by Customer that it transmits and stores through the Platform. Total Expert expressly disclaims and assumes no liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to the use of any content transmitted or stored through the software.

4 Third-Party Sites

The Platform may make available to Customer third party resources including but not limited to property websites, landing pages, and other third-party sites over which Total Expert has no control. Total Expert is not responsible for the accuracy, completeness, functionality, usability or availability of any content provided by third party resources. Total Expert does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from third party sites or resources. Total Expert will not be liable for any damage or loss caused by use of or reliance on any such content, advertising, products or other materials available on or through any third-party site or resource. 

5 Intellectual Property Rights

5.1 Definition

“Intellectual Property Rights” means all current and future copyrights, patents, trademarks or rights in databases, inventions or trade secrets, know-how, proprietary information, rights in designs, trade and business names, domain names, marks and devices (whether or not registered) and all other intellectual property rights and applications for any of those rights (where such applications can be made) capable of protection in any country of the world.

5.2 Software Ownership

Total Expert or its licensors retains all right, title and interest in and to (a) the Platform, including without limitation, all related inventions, software, algorithms, models, data sets, report templates, and other materials and information embodied or incorporated in the Platform, and all inventions, reductions to practice, conceptions and developments, and acquired Intellectual Property to any of the materials described in (a), (b) all enhancements, improvements, adaptations and other modifications to any of the materials described in (a), that are made in connection with this Agreement, and (c) all Intellectual Property embodied in the materials described in (a) and (b). Customer may not remove any product identification, copyright or trademark notices, or restrictive legends from the Platform. Customer may, solely for its internal business purposes or for use as reference guides for its authorized users, use, copy and distribute any deliverables provided with the Platform. Total Expert will retain the Intellectual Property Rights and all materials, methodologies, processes, techniques, ideas, concepts, trade secrets, and know-how embodied in the deliverables or that Total Expert may develop or supply in connection with the Platform.

6 Fees and Payment

6.1 Platform Fees

Customer will pay Total Expert the fees set forth in the Order Form and any fees for additional services as agreed in a separate SOW, without deduction or set-off of any kind. The Contact Package selected on Customer’s Order Form represents the initial ceiling number of contacts provisioned within the platform. An individual contact record shall be defined as a name and an email address submitted by a Customer user. Contacts measured may include leads, prospects, customers, or partners. Additional contacts beyond contracted amount may be invoiced by Total Expert at a rate of $50 per 1,000 Contacts, rounded down.

6.2 Payment Terms

Unless otherwise agreed upon in writing, Customer will pay invoice amounts on receipt of invoices submitted by Total Expert. Any invoice remaining unpaid for more than thirty (30) days from receipt will accrue interest at a rate of the lesser of 1.5 percent per month or the highest rate allowed by law. Total Expert reserves the right to suspend or discontinue access to the Platform if any amounts are more than thirty (30) days overdue. 

6.3 Taxes

Customer is responsible to pay any and all applicable taxes incurred in connection with the Platform and Support Services, including without limitation state and local, privilege, excise, sales, and use taxes, but excluding taxes based upon the net income of Total Expert, and to file any necessary returns related thereto. Total Expert will be responsible for determining the applicability of any sales, use, excise, or similar taxes in connection with the Platform and Support Services. Total Expert will separately state any taxes due on Total Expert’s invoice to Customer. Customer will pay the applicable taxes on such invoices, or, in lieu of payment, provide Total Expert with a certificate acceptable to Total Expert and the taxing authorities exempting Customer from the payment of such taxes. 

7 Term & Termination

7.1 Term

The term of this Agreement will begin on the Effective Date of the Agreement and continue through the subscription term as stated in the Customer’s Order Form (“Initial Term”).

7.2 Termination For Cause

Either party may terminate this Agreement for cause, (a) if the other party fails to cure a material breach within 30 days of written notice by the non-breaching party, including non-payment of undisputed fees; or (b) immediately following written notice if the other party: (i) ceases to do business in the normal course; (ii) becomes or is declared insolvent or bankrupt; (iii) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within 90 calendar days; or (iv) makes an assignment for the benefit of creditors.

7.3 Effect of Termination

If the Agreement is terminated due to a breach by Customer, the balance of any unpaid fees will accelerate and become due and payable immediately prior to the termination of this Agreement. Upon termination of this Agreement, Customer’s right to access the Platform will immediately cease. Sections 5, 8, 9, 10 and 15 survive termination of this Agreement. 

8 Confidentiality

8.1 Definition

“Confidential Information” means any material, data, or information in whatever form or media of a party to this Agreement that is provided or disclosed to the other, including the following categories of information whether disclosed orally or in writing, regardless of whether marked as confidential: algorithms, source code, specifications, software, test results, technical know-how, business or marketing plans, pricing, network configurations, network architecture, financial and operational information, trade secrets, and other matters relating to the operation of the parties’ business, including information relating to actual or potential customers and customer lists, customer usage or requirements, business and customer usage forecasts and projections, accounting, finance or tax information, pricing information, and any information relating to the corporate and/or operational structure of the parties. In providing Support Services, Total Expert may access Customer’s account, with the understanding that all account information will be considered Confidential Information. “Confidential Information” does not include information which: (a) becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure and had not been subject to limitations on disclosure; (c) is disclosed hereafter to the receiving party by a third party when the receiving party has no knowledge of any impropriety; (d) is developed independently without using the Confidential Information; or (e) is generally furnished by the disclosing party to others without restriction on confidentiality.

8.2 Obligations

All Confidential Information belonging to one party and disclosed to the other party remains the sole property of the disclosing party, and its confidentiality will be maintained and protected by the recipient with the same effort used to protect its own Confidential Information (but no less than a reasonable standard of care). Each party must take all steps reasonably necessary to prevent the disclosure of Confidential Information and take all necessary measures to prevent any such unauthorized use and disclosure by its employees, agents, contractors, dealers or consultants and employee access must be limited to required employees only. Neither party may disclose Confidential Information to any third party for any purpose without obtaining prior written consent from the disclosing party, except as otherwise expressly permitted in this Agreement. Any third party receiving Confidential Information must be bound by confidentiality terms similar to those provided in this Agreement. Neither party is permitted to copy or duplicate any Confidential Information except as reasonably necessary to pursue the objectives of this Agreement. In the event of an unauthorized disclosure of Confidential Information, the recipient must promptly notify the disclosing party.

8.3 Permitted Disclosures

Notwithstanding the obligations of Section 8.2, if a party is requested or required by oral questions, interrogatories, judicial or regulatory requests for information or documents, subpoena, civil investigative demand or other process to disclose any Confidential Information, such party will provide prompt notice of such request so that the disclosing party may seek an appropriate protective order or waive compliance with the provisions of this Agreement. If either is compelled by obligation of law to disclose Confidential Information to any tribunal or else stand liable for contempt or suffer other censure or penalty (in the absence of such a protective order or waiver by the other party), that party agrees to furnish only that portion of the Confidential Information which it is advised by written opinion of its counsel is legally required and to exercise reasonable efforts to obtain assurances that confidential treatment will be accorded such Confidential Information.

8.4 Return of Confidential Information

Upon request by either party, the other party will return to or destroy all documents and other writings, together with all copies of any such documents or other writings, and an officer of the requested party will certify to the return or destruction of all tangible Confidential Information and references to such Confidential Information and the destruction of any references to such Confidential Information on electronic or other intangible media. Confidential Information stored in electronic backups in the normal course of business are exempt from the removal requirements in this section where removing the data would be cost prohibitive.

9 Warranties and Warranty Disclaimers

9.1 Representatives and Warranties

Each party represents to the other that it has the right to enter into this Agreement. Total Expert further represents and warrants that: (a) there are no outstanding assignments, grants, licenses, encumbrances, obligations, or agreements (whether written oral or implied) that are inconsistent with this Agreement and the rights granted; (b) the Platform does not contain any disabling devices, such as a computer virus, worm, Trojan horse, time bomb or other device which may erase, scramble, lock or disable software or equipment or may prevent users from using the Platform; and (c) the Platform was created using, and will maintain during the Term of this Agreement, at least an industry-recognized level of security given the state of technology available for such Platform and Total Expert will use commercially reasonable practices to ensure the security and protection of Customer content, data, and files. Customer represents and warrants that it has obtained all consents, approvals, and authorizations of, and provided all necessary notices to, Customer personnel and any third parties required in connection with the collection, possession, sharing and utilization of User Data as provided in this Agreement.

9.2 Remedies for Breach

In the event of any breach of the above warranties, Customer’s sole and exclusive remedy will be for Total Expert to correct or replace, at no additional charge to Customer, any portion of the Platform found to be defective. Total Expert’s obligations under this Agreement are contingent upon the proper use and care by Customer of the Platform, and do not cover any part of the Platform which has been modified by anyone other than Total Expert.

9.3 Warranty Disclaimer

TOTAL EXPERT MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO ANY THIRD-PARTY HARDWARE, SOFTWARE OR SERVICES. ANY STATEMENTS MADE BY A THIRD PARTY, INCLUDING AUTHORIZED PARTNERS OF TOTAL EXPERT, ARE NOT WARRANTIES OF TOTAL EXPERT. OTHER THAN IN THIS SECTION 9, TOTAL EXPERT MAKES NO EXPRESS, IMPLIED OR STATUTORY WARRANTIES AND SPECIFICALLY DISCLAIMS (A) THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE AND NON-INFRINGEMENT; (B) ANY WARRANTY THAT THE SOFTWARE, CONTENT, DELIVERABLES OR OTHER SERVICES ARE FREE FROM MINOR ERRORS, WILL BE FREE FROM MINOR INTERRUPTIONS, OR THAT ALL ERRORS WILL BE CORRECTED; (C) ANY WARRANTY THAT CONTENT WILL BE ACCURATE, RELIABLE AND ERROR-FREE; OR (D) ANY WARRANTY THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OTHER THAN AS SET OUT IN THE DOCUMENTATION.

10 Limitation of Liability

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT, ANY ORDER FORM OR ANY STATEMENT OF WORK, INCLUDING WITHOUT LIMITATION, DAMAGES ARISING FROM LOST BUSINESS, STAFF TIME, USE, DATA, OTHER ECONOMIC ADVANTAGE, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF DATA OR PROGRAMMING, LOSS OF REVENUE OR PROFITS, DAMAGE TO EQUIPMENT. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND TOTAL EXPERT’S REASONABLE CONTROL. IN NO EVENT IS TOTAL EXPERT LIABLE FOR ANY DAMAGE ARISING FROM CUSTOMER’S FAILURE TO PERFORM IN CONNECTION WITH THIS AGREEMENT OR ITS MISUSE OF USER IDS. EXCLUDING ANY CLAIMS FOR INDEMNIFICATION UNDER SECTION 11, TOTAL EXPERT’S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNTS RECEIVED FROM CUSTOMER IN THE 12 MONTHS PRIOR TO THE DATE OF THE ACTION GIVING RISE TO THE CLAIM.

11 Indemnification

11.1 Indemnification by Total Expert

Total Expert will defend and indemnify Customer and its employees, officers and directors from any and all suits, losses, damages, actions or claims, including reasonable attorneys’ fees and legal costs, related to a claim that the Platform, as delivered and used in accordance with the terms of this Agreement, infringes the Intellectual Property Rights of a third party, provided that Customer gives Total Expert prompt written notice of such claim, suit or proceeding and gives Total Expert full information and reasonable assistance in its defense or settlement (such assistance provided at Total Expert’s expense). Total Expert will be entitled to direct such defense and to settle or otherwise dispose of such claim, suit or proceeding as it sees fit. If an injunction is obtained in such action enjoining Customer’s use of the Platform, Total Expert will, at its option and expense, either (a) obtain for Customer the right to continue to use the Platform, or (b) immediately replace the Platform with a product with substantially equivalent functionality, or (c) immediately modify the Platform so that it becomes non-infringing, while maintaining substantially equivalent functionality, or if (a), (b) and (c) are not practical, terminate this Agreement and reimburse Customer for the Platform license fees actually paid by Customer to Total Expert in the prior 12 months. Customer may participate with Total Expert in Customer’s own defense of such claim, suit or proceeding, at Customer’s option and at Customer’s sole expense. This Section states Total Expert’s entire liability and Customer’s sole and exclusive remedy for infringement and misappropriation claims and actions.

11.2 Indemnification by the Customer

Customer will defend and indemnify Total Expert and its employees, officers and directors from any and all suits, losses, damages, actions or claims, including reasonable attorneys’ fees and legal costs, brought by any party on account of (a) Customer’s use of the Platform including, without limitation, Customer’s use of the Platform in conjunction with any material or content that Customer stores or transmits that: (i) infringes any third party’s intellectual property or publicity/privacy rights; (ii) violates any law or regulation; (iii) is defamatory, libelous, unlawfully threatening or unlawfully harassing; (iv) is obscene, harmful to minors or child pornographic; (v) contains any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage or detrimentally interfere with the Platform or data contained within the Platform or; (vi) is materially false, inaccurate or misleading; and (b) any injuries or damages sustained by any person or property due to any direct or indirect act, omission, neglect or misconduct of Customer, its agents, representatives, employees, contractors and their employees and sub-contractors and their employees. Customer will defend and indemnify Total Expert from all claims of infringement of Intellectual Property Rights based on modifications to the Platform made by or for Customer. 

12 Data Security

12.1 Data Rights

As between Customer and Total Expert, Customer owns all worldwide right, title and interest in and to any user data uploaded or submitted by Customer for processing by or through the Platform (collectively, “User Data”). Total Expert will not sell personally identifiable information provided by Customer and will retain, use, or disclose such personally identifiable information only for the specific purpose of performing the services and within the direct business relationship with Customer. Total Expert has the right to aggregate User Data with other information in one or more data sets in a manner that does not reveal the identity or the source of such information, and Total Expert will be free (during and after the Term of this Agreement) to use such User Data (as aggregated with other information and de-identified) for purposes of product or service development and improvement, for analytical purposes, and to make general public statements regarding industry trends and/or the efficacy of Total Expert’s products and services. Total Expert will implement technical safeguards business processes that prohibit and prevent the re-identification of User Data that has been de-identified.

12.2 Privacy Laws

Total Expert acknowledges that Customer, in its use of the Platform, may be required satisfy numerous Federal and state laws related to consumer privacy and data security, including without limitation, the Dodd-Frank Act, Title X, Subtitle C, Sec. 1036; Gramm-Leach-Bliley Act (15 U.S.C. 6801 et seq); Interagency Guidelines Establishing Standards for Safeguarding Customer Information, 66 Fed. Reg. 8616; Fair Credit Reporting Act; Federal Trade Commission Act, Sec. 5; Massachusetts General Laws chapter 93H; New York State Cybersecurity Regulations (23 NYCRR 500.01); California Consumer Privacy Act; and all other state and Federal laws (including all related implementing regulations, public advisory opinions, and jurisprudence) related to consumer privacy or data security applicable to U.S. financial institutions, as well as civil standards related to the misuse or failure to protect consumer data (collectively referred to as “Privacy Laws”). Total Expert has implemented technical, physical and administrative safeguards to comply with applicable Privacy Laws.

12.3 Information Security

Total Expert has established and will maintain an information security program to, among other things, prevent unauthorized access, destruction or alteration of Customer Data, that meets or exceeds the objectives in the Privacy Laws. Total Expert will be solely responsible for the information technology infrastructure, including all computers, software, databases, electronic systems (including database management systems), and networks used by or for Total Expert to access the Customer systems or otherwise in connection with the Platform (”Total Expert Systems”) and will prevent unauthorized access to the Customer’s systems through the Total Expert Systems. Total Expert will provide regular security awareness training to all personnel that provide services under this Agreement.

12.4 Data Breach Procedures

Total Expert shall promptly report to Customer if Total Expert has reason to believe that any unauthorized access to Customer Data has occurred. 

12.5 Customer Security Obligations

Customer is responsible for all activities conducted under its user logins and complying with all applicable laws, rules and regulations, and acquiring all necessary data subject consents. Customer is responsible for maintaining the user accounts and the security of its usernames and passwords at the user level and for promptly changing or deleting any username or password that Customer believes may have been compromised. Customer is responsible to: (a) use a modern browser with the latest security patches; (b) require strong passwords (at least eight characters with uppercase/lowercase letters, numbers and special characters); (c) access the Platform only through trusted networks; (d) promptly disable access to the Platform for users that leave the organization. 

13 Redundancy, Data Backup, and Disaster Recovery

During the term of this Agreement, Total Expert will maintain and test a business continuity, disaster recovery and backup plan (collectively, the “Plans”).

14 General

14.1 No Assignment

Neither this Agreement nor any right or obligation arising hereunder may be assigned by Customer in whole or in part, without the prior written consent of Total Expert, provided however, this Agreement may be assigned if Customer is acquired or sells all or substantially all its business or assets to another entity which is not a direct competitor of Total Expert and such entity agrees in writing to be bound by all the terms and conditions of this Agreement. Any actual or proposed change in control of Customer that results or would result in a direct competitor of Total Expert directly or indirectly owning or controlling 50% or more of Customer will entitle Total Expert to terminate this Agreement for cause immediately upon written notice. Subject to the restrictions on assignment of this Agreement by Customer, this Agreement will be binding upon and inure to the benefit of the successors and assigns of each of the parties hereto. Any purported assignment in violation of this section will be void. This Agreement may be assigned in whole or in part by Total Expert.

14.2 Notes

All notices and other communications will be in writing and will be deemed duly given (a) on the date of delivery if delivered personally; (b) if dispatched via a nationally recognized overnight courier services (delivery receipt requested) with charges paid by the dispatching party, on the scheduled date of delivery of such service; or (c) on the date sent by electronic mail if send during normal business hours (otherwise on the next business day), provided that a copy is delivered by either methods (a) or (b) above within one business day. Except as explicitly stated otherwise, any notice to the parties will be given to the contacts identified in the Order Form.

14.3 Amendment

Amendments, modifications, or supplements to this Agreement must be in writing signed by an authorized representative of both parties.

14.4 Public Announcements

Customer grants permission for Total Expert to display Customer’s logo on the Total Expert website or social media sites so long as they are an active customer of Total Expert. The parties will cooperate in the issuance or release of announcements, statements, press releases or other publicity or marketing materials relating to this Agreement, with the written (e-mail acceptable) permission of the other Party.

14.5 Waiver, Severability

The waiver of any breach or default does not constitute the waiver of any subsequent breach or default. If any provision of this Agreement is held to be illegal or unenforceable, it will be deemed amended to conform to applicable laws or regulations, or, if it cannot be so amended without materially altering the intention of the parties, it will be stricken and the remainder of this Agreement will continue in full force and effect.

14.6 No Construction Against Drafter

Any principle of construction or rule of law that provides that an agreement will be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement will not apply to the terms and conditions of this Agreement.

14.7 Governing Law

This Agreement will be governed by the laws of the State of Minnesota, United States of America without regard to choice of law or conflict of law principles. This Agreement is not a contract for the sale of goods; therefore, this Agreement will not be governed by any codification of Article 2 or 2A of the Uniform Commercial Code, or any codification of the Uniform Computer Information Technology Act, or any references to the United National Convention on Contracts for the International Sale of Goods. 

14.8 Entire Agreement

These terms in conjunction with an executed Order Form for Total Expert’s “TE-Now” product offering shall constitute the entire agreement between the parties with respect to the subject matter contained herein, superseding all previous agreements pertaining to such subject matter.

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