BY USING ANY OF IMAGEQUEST’S SERVICES, CUSTOMER ACCEPTS AND AGREES TO ABIDE BY THESE TERMS AND CONDITIONS, PRICING SCHEDULES, QUOTES, USER ACCEPTANCE TESTING FORMS, ACCEPTABLE USE AND PRIVACY POLICY (“AUPP”), ADDENDUM(S), AND AMENDMENT(S) AS WELL AS ALL LIMITATIONS OF LIABILITY.

In consideration of the mutual promises and agreements made herein and intending to be legally bound, ImageQuest and Customer agree that ImageQuest shall provide the services described herein to Customer.

  1. Term and Termination. This Agreement is valid and binding as of the date of execution by Customer (the “Effective Date”) and shall remain in full force and effect for a period of thirty-six (36) months (“Initial Term”), beginning with the first full calendar month following the first invoice, unless issued in conjunction with an equipment lease or rental agreement of a different term, in which case, the term of the lease or rental agreement shall be the term of this Agreement. The Agreement will automatically renew after the Initial Term for successive twelve (12) month terms (each a “Renewal Term”). Either party may elect not to renew a Term of this Agreement without penalty by sending written notification of non-renewal to the non-terminating party at least thirty (30) days before the end of any Initial or Renewal Term (Permitted Termination”). If Customer elects to terminate this Agreement before the end of the Initial Term or any active Renewal Term, Customer shall incur, as a reasonable estimate of ImageQuest’s loss and not as a penalty, a Termination Charge equal to 50% of the remaining Monthly Payments under the Initial or any Renewal Term. The early termination fees in the prior sentence shall not apply in the event of a Permitted Termination as described above. A lease or rental agreement may not be terminated before the end of any active Term.
  2. Monthly Charges.ImageQuest will invoice Customer the Monthly Payment in advance on the 1st of the month for the Services to be rendered during the month. Payment terms are Due Upon Receipt. Services are provided in minimum increments of one (1) month and shall not be prorated upon termination, suspension, or disconnection.
  3. Transition Billing.The first full billing month (the “Billing Month”) will begin on the first day of the calendar month following the onboarding date. If the onboarding date is the first day of the calendar month, the Billing Month will begin on the onboarding date. If not, Customer will be assessed a prorated amount of the Monthly Payment for the period between the onboarding date and the first day of the Billing Month. Such amount will be prorated on a 30-day calendar month and will be added to the Customer’s first invoice. The onboarding date will be specified in the Project Charter.
  4. Price Protection.Other than as provided herein, the Monthly Payment under this Agreement will not increase more than 5% in any one year. Additionally, in no case will the Monthly Payment be reduced below 85% of the original Monthly Payment due to change in the Services.
  5. Software as a Service (SaaS). Customer understands and accepts that software licenses acquired as a Service (monthly, quarterly, annually) are subject to the terms and conditions of the manufacturer’s license agreement, including pricing, and may be increased beyond the 5% referenced in paragraph 4 with thirty (30) days’ notice to Customer. Customer understands and accepts that these manufacturer pricing increases are outside ImageQuest’s control. In some cases, Customer may elect to pay third-party vendors directly, such as Microsoft.
  6. Moves, Adds, Changes, and Disconnects.Certain elements of some Service Orders incur charges on a per item basis. Examples include, but are not limited to email accounts, monitored devices, offsite data storage, and resources for virtual hosted servers provisioned in a data center. Any Customer request for a change of Service that creates an increase in the subscribed services may result in a corresponding increase in monthly charges. In the event of a disconnection of Service, an early termination charge may apply under paragraph 1 above. Additional and new Services may incur an installation charge for the specific service or feature.
  7. Compliance Audits. From time to time Customer may be audited or asked to provide IT, backup, license, or other information for compliance (example: SEC, ISO, SOX, HIPAA) or insurance coverage/application purposes. ImageQuest will provide such assistance and services as requested, but they will be billed at a time and materials billing rate at the ImageQuest standard hourly rates.
  8. Other Charges and Fees.Customer is responsible for all nonrecurring and recurring charges as indicated including any equipment; charges for any moves, adds, changes, or disconnects of the Service; consulting fees; training fees; taxes; regulatory charges; compliance fees; and other fees (collectively “Charges”). Any request for professional services which are deemed beyond the scope of the Services as outlined in any Service Orders shall be considered consulting and will be billed on time and materials basis at the then current applicable rate.
  9. Payment. All invoices will be sent to the Customer’s address of record or emailed and will be Due Upon Receipt. All recurring service charges shall be made via ACH, check, or credit card. All non-recurring payments shall be made via check or credit card. Credit card payments will incur a 3% service charge. Customer shall pay all Charges incurred under this Agreement. A late payment charge calculated as 1.5% of the average daily balance of all past due invoices will be calculated and invoiced monthly. This Finance Charge will not exceed the highest rate allowed by law. For any account with a past due balance, ImageQuest may also suspend or terminate the Service without notice. A service charge not to exceed the highest amount allowed by law will be added to all returned checks and all items submitted for direct payment for which there are insufficient funds. Customer shall pay all costs associated with the collection of past due amounts, including attorneys’ fees, and court costs. Notwithstanding the dispute resolution provisions of this Agreement, ImageQuest may seek recourse for collection of any unpaid charges in the Davidson County Circuit Court, Nashville, TN, and Customer hereby submits to such jurisdiction and venue for this purpose.
  10. Billing Disputes.For purposes of this Section seven (7), a “Bona Fide Billing Dispute” is a billing dispute that can be clearly substantiated through objective records, data, and materials, or where a miscalculation or misstatement of fees is clearly evident on an invoice. All Bona Fide Billing Disputes must be submitted in writing, with complete documentation of the basis for the claim, and submitted with payment of all undisputed amounts, or alternatively, if Customer has paid an invoice in full, Customer shall have ninety (90) calendar days from the invoice date to give notice of the Bona Fide Billing Dispute. Failure to provide timely notice of a dispute, as required above, shall be deemed an irrevocable waiver of said dispute. ImageQuest will use commercially reasonable efforts to resolve any Bona Fide Dispute within thirty (30) days of notice of the Bona Fide Billing Dispute.
  11. Taxes and Fees.Customer is responsible for payment of any sales, use, gross receipts, excise, access, or other local, state and federal taxes, charges, surcharges, or reimbursement of said taxes, charges, or surcharges (however designated) imposed on, or based upon the provision, sale, or use of the Services. ImageQuest may also include a separate compliance recovery fee or another similar fee to cover the administrative burden and overhead necessary maintain and document regulatory compliance on behalf of the Customer to the extent such fees are not prohibited by law. All taxes and fees shall be listed separately and are not included in the rates quoted herein.
  12. Regulatory Changes.If the FCC, a state regulatory body, a court of competent jurisdiction, any legislature, or any other governmental or quasi-governmental body having jurisdiction over the Services issues a rule, regulation, law, or order which has the effect of increasing the cost to provide Services hereunder or canceling, changing, or superseding any material term or provision of this Agreement (collectively, “Regulatory Requirement”), with notice to Customer, ImageQuest may modify this Agreement or any rates or fees associated with the Services in its sole discretion as necessary to comply with such Regulatory Requirement. Such modification shall not constitute a basis for termination of this Agreement.
  13. No Ownership of Customer Data.ImageQuest represents that all Customer data is the exclusive property of the Customer and makes no claim of ownership of Customer’s data. In the event of the expiration or proper termination of this Agreement, ImageQuest agrees to return Customer’s applications and data in a commercially reasonable manner. In the event ImageQuest becomes insolvent or bankrupt, Customer shall be granted access to its licensed software and data. Customer is responsible for all hardware, software, and IT support necessary for the return of applications and data, setup of such applications and data, and continued maintenance thereof. ImageQuest shall not be liable for any lost data or interruption of service.
  14. Administrators. Customer will appoint up to three (3) people from time to time (the “Administrator(s)”) whom Customer will designate as its agent(s) with authority to perform certain administrative functions, including making technical change requests or other technical inquiries, and upon whose instructions ImageQuest may rely.
  15. Non-solicitation of employees.Customer will not, for two years following the termination of any Service Order, solicit any employee of ImageQuest to perform services that are similar to those services being performed by the employee for Customer on behalf of ImageQuest.
  16. Litigation Hold.ImageQuest shall have no obligation to store or avoid the destruction of data under the Federal Rules of Civil Procedure, including but not limited to Rule 26 thereof, or other similar state law, regulation, or judicial order. If Customer reasonably believes or is notified that a hold on the destruction of data is or may be required, Customer may provide a written request to preserve its data on a going forward basis. The request shall indicate the scope of the data to be preserved, and Customer agrees to limit the scope to the extent possible. Additional fees may apply for all labor, additional hardware, or other items that may be necessary to comply with such request. ImageQuest may require a deposit or prepayment to ensure payment of such additional fees. ImageQuest does not provide legal advice, and Customer is strongly encouraged to engage legal counsel under such circumstances. Customer agrees to work with ImageQuest to limit any disruption to ImageQuest’s normal business operations. In the event ImageQuest determines in its sole discretion that a data preservation request is or may be too burdensome, ImageQuest may terminate this Agreement immediately.
  17. LIMITATION OF LIABILITY. IMAGEQUEST MAKES NO WARRANTY OR REPRESENTATION WITH RESPECT TO THE QUALITY, ACCURACY, OR AVAILABILITY OF ANY IMAGEQUEST SERVICES. IMAGEQUEST DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OF QUALITY, DESIGN, CONDITION, CAPACITY, SUITABILITY, PERFORMANCE, OR NONINFRINGEMENT. IN NO EVENT WILL IMAGEQUEST OR ITS CONTRACTORS OR AGENTS BE LIABLE FOR ANY DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S OR ANY OTHER PARTY’S USE OF, OR INABILITY TO USE, THE IMAGEQUEST SERVICES, INCLUDING BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, LOST PROFITS RESULTING FROM LOST DATA, DELAY, OR INTERRUPTION IN SERVICES OR DAMAGES RESULTING FROM PERSONAL INJURY OR PROPERTY DAMAGE, WHETHER OR NOT THERE IS NEGLIGENCE BY IMAGEQUEST AND WHETHER OR NOT IMAGEQUEST HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. CUSTOMER’S EXCLUSIVE REMEDY FOR ANY BREACH OF THIS AGREEMENT IS LIMITED TO THE TERMINATION OF THIS AGREEMENT.
  18. Claims. Any and all claims or actions arising under this Agreement, other than indemnification obligations arising under paragraph fifteen (16) below and billing disputes which are governed by paragraph seven (7) above, shall be brought within twelve (12) months of the event giving rise to the claim or shall forever be barred.
  19. Indemnification. Customer shall, to the extent allowed by law, indemnify, defend, and hold ImageQuest, its shareholders, owners, subsidiaries, affiliates, partners, investors, directors, officers, directors, agents and employees (hereafter “Indemnities”) harmless from any and all loss, cost, expense, and damage regarding any and all manner of claims, demands, actions, suits, proceedings, judgments, costs, and expenses (including reasonable attorneys’ fees) that may be initiated against Indemnities arising out of any action or inaction of Customer, its agents, contractors, assigns, or end user customers including but not limited to the following: i) violation of the Acceptable Use and Privacy Policy and/or terms and conditions of this Agreement; ii) use of the Services, including without limitation, claims of copyright, or trademark infringement; iii) violations of any local, state or federal regulations, laws or judicial orders; iv) violation of the proprietary and/or privacy rights of any party whatsoever; or v) violation of any term of any license or third party right associated with any data or application stored on ImageQuest’s network.
  20. Non-binding Mediation.  Customer and ImageQuest understand that, despite the best efforts of both parties, issues and conflicts may arise under this Agreement.  The parties acknowledge their desire to reach a working solution to such problems by using good faith attempts to resolve such issues and conflicts.  If such good faith attempts are unsuccessful, either party may start non-binding mediation in Nashville, Tennessee by providing written notice to the other.  The mediation shall be conducted by a Tennessee certified mediator.  Non-binding mediation shall be the sole remedy for resolving any and all disputes between the Parties, except as otherwise provided herein.  No statements by, or communications between, the parties during negotiation will be admissible for any purpose in mediation. The Parties shall bear their own attorney’s fees and costs, including expert costs, related to any claim or dispute subject to mediation.  The mediator may, as part of any decision, award to the prevailing party the mediation fees paid by that party.  Any and all claims, disputes, or causes of action arising out of or under this Agreement shall be governed by the laws of the State of Tennessee without regard to conflict of laws. Notice:  By signing and/or digitally accepting this Agreement, the Parties are agreeing that they have read and understand the foregoing non-binding mediation provisions and that, except where prohibited by law or otherwise set forth herein, the Parties agree to have any claim or dispute subject to the provisions of this paragraph decided by non-binding mediation and that the Parties are giving up any rights they might possess to have the claim or dispute litigated in court or by jury trial. The provisions of this paragraph shall survive breach or termination of this Agreement. Notwithstanding the preceding, either party may apply to a court in Davidson County, Tennessee for interim relief if such party reasonably determines that such relief is necessary to prevent irreparable injury to it or a third party.
  21. Severability. If any term or provision of this Agreement is held by a court of competent jurisdiction or Mediator to be illegal, unenforceable, or invalid in whole or in part for any reason, the remaining provisions of this Agreement shall remain in full force and effect. The invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement and shall continue in full force and effect.
  22. Notice. All notices shall be in writing and shall be considered given upon receipt when sent by certified mail, return receipt requested, postage prepaid, or sent via a major domestic overnight carrier with verification of such delivery to Customer at Customer’s address stated in this Agreement, or to ImageQuest at 815 Airpark Center Drive, Nashville, TN 37217, Attn: Legal.
  23. Force Majeure.With the exception of any payment of money due hereunder, no party shall be liable by reason of any failure or delay in the performance of its obligations due to any cause beyond its reasonable control, including acts of God, strikes and lockouts, or other industrial disturbances, vendor, or subcontractor delays, wars, riots, terrorist activity, insurrections, epidemics, severe weather, interruptions by government or court orders, present or future orders of regulatory bodies having proper jurisdiction, civil disturbances, explosions, breakage or accident to equipment, power interruptions, fiber cuts, outages or failures to any carriers providing service to Provider or Customer, failure of Customer’s proprietary software, outages, or failures and any other cause that is outside of the control of the party claiming that a Force Majeure event has prohibited it from performing its obligations hereunder and which such party, with the exercise of due diligence, is unable to overcome. Notwithstanding the preceding, nothing shall relieve either party from liability in the event of its concurring negligence or in the event of its failure to use reasonable diligence to remedy the situation and remove the cause in an adequate manner. Any assertion of non-performance based on a Force Majeure event shall not be effective unless notice is served on the other party with a full explanation of the events giving rise to the Force Majeure claim.
  24. No Assignment.Customer shall not assign its rights or delegate its duties under the Agreement either in whole or in part without the prior written consent of ImageQuest which shall not be unreasonably withheld. Any attempted assignment or delegation without such consent will be void. This Agreement and all rights and obligations hereunder shall be fully assignable by ImageQuest. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
  25. Conflicts with Service Orders.The terms contained in this Agreement and any Service Order shall govern the relationship between the parties. To the extent that the terms and conditions of this Agreement are in direct conflict with any term or condition contained in a Service Order, the term contained in the Service Order will control.
  26. Entire Agreement.This Agreement constitutes the entire agreement between the parties on the subject matter hereof and supersedes all other prior and contemporary agreements, understandings, and commitments between the parties regarding the subject matter hereof whether oral or in writing.
  27. Modifications. ImageQuest may, at its sole discretion, modify our prices, fees, the Services, or the terms and conditions of this Agreement in the future. Unless this Agreement or applicable law specifies otherwise, we will give you thirty (30) days prior notice of any significant change to this Agreement. If you continue to receive Service(s) after the end of the notice period (the “Effective Date”) of the change, you will be considered to have accepted the changes. You may not modify this Agreement by making any typed, handwritten, or any other changes to it for any purpose.
  28. Agreement Drafted by Both Parties.This Agreement is the result of arm’s length negotiations between the parties and shall be construed to have been drafted by all parties such that any ambiguities in this Agreement shall not be construed against either party.
  29. Signatures. The parties hereto acknowledge and agree that electronic contracts have the same legal validity and enforceability of pen-and-paper documents when executed in compliance with e-signature laws. An electronic signature is fully binding and constitutes a legal method of executing this Agreement. A quote from our electronic quoting tool shall become a Service Order upon acceptance and Electronic Signature.
  30. Headings. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.