Terms & Conditions Related to Information Technology Services

Effective January 23, 2020

In the course of delivering services relating to information technology (“Services”), RainRock, LLC d/b/a HoganTaylor Technology, (“HTT,” “we” or “us”) applies customary practices intended to provide these Services in a cost-effective manner. This document describes certain of these customary practices, as well as other standard terms, conditions, and limitations relating to our provision of Services. Except to the extent we expressly agree in a written instrument signed by our authorized representative that specifically refers to an engagement covered by a Master Services Agreement and a Statement of Work, all Services that we provide to any client or third party (“Client” or “you”) are subject to the following terms, conditions, and limitations (these “Terms”). References to the “Master Services Agreement” or “MSA” mean the agreement describing the nature of our relationship with you in which these Terms are incorporated, while a “Statement of Work” or “SOW” describes the scope of our Services and the associated fee arrangement in which these Terms are incorporated.

1. DEFINITIONS Unless otherwise indicated in the MSA or a SOW, the following terms used in the MSA or SOW have the following meanings ascribed to them.
1.1 “Authorized User” means your employees, consultants, contractors, and agents (i) who you authorize to access and use the Services under the rights granted to you under the MSA or a SOW and (ii) for whom access to the Services has been purchased under the MSA or SOW.
1.2 “Client Data” means all text, pictures, sound, graphics, video, data described in the MSA or a SOW and other data, documents and information you supply or we collect in connection with providing the Services, whether in existence as of the effective date or compiled thereafter in the course of providing the Services, excluding your contact information (“Contact Information”).
1.3 “Documentation” means any manuals, instructions, or other documents or materials listed on a SOW that we provide or make available to you in any form or medium and which describe the functionality, components, features, or requirements of the Services, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
1.4 “Firm Materials” means materials owned by, licensed to, or developed by us prior to, or independently from the MSA or a SOW, and may include without limitation any Documentation, data, application code, graphics, modules, components, designs, utilities, subsets, objects, program listings, tools, models, methodologies, programs, systems, analysis frameworks, leading or best practices and specifications, and may also include third party materials, including software and equipment licensed to us for use in the Services.

2.1 Scope of Services. Our Services will be limited to the Services specifically described in an executed SOW. If you need Services beyond those specifically described in a SOW, these additional Services would constitute either a separate SOW or an expansion of an existing engagement at an additional cost. Our agreement to provide Services for one engagement does not obligate us to accept any other engagement.
2.2 Your Responsibilities. In order for us to provide effective Services, you must cooperate with us and provide us with any information that we request, all on a timely basis. You must provide us access to and permission to use all information, materials, internal resources, databases, facilities and personnel as reasonably necessary and proper as we may determine to complete and provide any and all Services set forth in a SOW. You must cause your employees and contractors to cooperate fully and timely with us. You must designate for us a person authorized to make or obtain all management decisions with respect to our Services on a timely basis. We will rely in good faith on all information and management decisions communicated to us by you, your employees, or your contractors, and we will not be responsible for any loss or other obligation arising from our reliance. Any failure to fulfill your responsibilities will be grounds for our suspending or terminating our Services.
2.3 Decisions. While we will provide you with advice concerning information technology, you will retain all authority and responsibility for any decisions based on our advice.
2.4 Independent Contractor. For all Services that we perform, we will be an independent contractor and not your employee, agent, or partner, and we will determine the method, details and means of performing our Services. We assume full and sole responsibility for the payment of all compensation and expenses of our employees and for all of their applicable employee withholdings.
2.5 Confidentiality. We will maintain the confidentiality of your Confidential Information (as defined in our Privacy Policy (the ”Policy”)) as described in the Policy. By engaging us you specifically authorize the disclosures described in the Policy. In certain circumstances, information that you disclose to us could be the subject of a claim of privilege, but you must generally assert and maintain the privilege claim. If you have questions concerning the availability of any privilege or how and whether to assert a privilege, you should contact your legal counsel. We will use reasonable precautions to protect your Confidential Information, but we have no obligation to employ any measures not regularly employed by you in protecting your Confidential Information. Any Confidential Information we collect in connection with providing Services to you remains, and is treated by us as, your exclusive property. A majority of our clients choose to communicate with us by email, and we will use email unless a client directs otherwise. Because email is not secure, it may not be an appropriate means for sending certain confidential or sensitive data. If you are concerned about the security of particular information, please contact us to discuss alternative arrangements.
2.6 Engagement of Other Parties. In performing Services, we may engage the services of other information technology firms, independent contractors, or other third-party personnel. Our engagement of any third party does not affect our obligations to you. We may also arrange for your purchase or license of third party software, services, and other products not included as part of the SOW, and/or may provide support to you in relation to those products. You are responsible for the payment and purchase or license of any such third party software, services, and other products, and your use of such third party software, services, and other products is governed by the terms of any license or other agreement between you and the third party.
2.7 Disclaimer of Legal Advice. Our Services under the MSA, any SOW, and these Terms do not constitute legal advice and are not an undertaking on our part to advise you of any changes in law. We recommend that you retain competent legal counsel.
2.8 Use of our Services. We may monitor your use of our Services and collect and compile aggregated statistics, which may be based on information you submit. All right, title, and interest in such statistics belong to and are retained solely by us. We may make such aggregated statistics publicly available in compliance with applicable law, and we may use such statistics to the extent and in the manner permitted under applicable law.
2.9 Prohibited Activities. You may not, and may not cause or permit others to: (a) use the Services to harass any person; cause damage or injury to any person or property; publish any material that is false, defamatory, harassing or obscene; violate privacy rights; promote bigotry, racism, hatred or harm; send unsolicited bulk e-mail, junk mail, spam or chain letters; infringe property rights; or otherwise violate applicable laws, ordinances or regulations; (b) perform or disclose any benchmarking, availability, performance or vulnerability testing of the Services without Firm’s prior written approval, (c) perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, remote access or penetration testing of the Services, or access or use the Services or Firm Materials other than by an Authorized User through the use of his or her own then-valid Service credentials; (d) modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, republish, download, or copy any part of the Services; (e) access or use the Services to build or support, directly or indirectly, products or services directly competitive to us or our affiliates; or (f) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Services to any third party except as permitted by the MSA or a SOW.
2.10 Document Production and Testimony. If we are requested or authorized by you, or if we are required by government regulation, subpoena or other legal process, to produce any documents, information or files , or to make our personnel available as witnesses with respect to this engagement, you will, so long as we are not a party to the proceeding in which the information is sought, reimburse us for our professional time and expenses, as well as the fees and expenses of our counsel, incurred in responding to such requests.
2.11 Conflicting Engagements. If we at any time determine in our sole discretion that a conflict of interest exists that prevents us from providing our Services in accordance with applicable ethical rules, we will notify you of the conflict and may withdraw from representing you to the extent that such withdrawal is required or permitted by applicable ethical rules.
2.12 Updates. While we are providing Services to you, we may update the Services, our Privacy Policy and Terms, and any applicable documentation to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of third party applications. Our updates will not materially reduce the level of performance, functionality, security or availability of the Services during the term of a SOW.
2.13 Audits. We or our nominee (including its affiliates and auditors) may inspect and audit your use of the Services at any time during the term of a MSA or SOW and for one (1) year following the termination or earlier expiration of such MSA or SOW. You shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may be requested by or on behalf of us with respect to such audit. If the audit determines that your use of the Services exceeded the usage permitted by the MSA or SOW, you shall pay us all amounts due for such excess use of the Services, plus interest on such amounts. If the audit determines that such excess use equals or exceeds 10% of your permitted level of use, you shall also pay us all costs we may incur in conducting the audit. You shall make all payments required under this Section 2.14 within ten (10) business days of the date of written notification of the audit results. We reserve the right to exercise any other rights or options available to us under the MSA, any SOW, or these Terms resulting from any other issues identified during the course of the audit.

3.1 Requests for Services. In responding to requests for Services made by your officers, managers, employees, or agents, we will presume that all requests have been authorized by your internal procedures. If you wish to limit the individuals who can request Services, you must notify us of any limitations in writing.
3.2 Billing. Our fees and expenses will be billed on a regular basis. Each invoice is payable upon receipt of the invoice. If you believe that any invoice is incorrect or if you wish to dispute any invoice, you must notify us in writing within 60 days or your receipt of the invoice. We reserve the right to charge interest on any invoice that is not paid within 30 days of the invoice date.
3.3 Uncontrollable Delays. The time for performance of any of your or our obligations (other than the obligation to pay money due) will be extended for a reasonable time in the event of causes beyond your or our reasonable control, including without limitation acts of God, war, acts of government, fire, flood, strike or labor problems, sabotage, and delays in obtaining labor, materials, equipment, or transportation.
3.4 Suspension of Services. If you fail to pay any invoice when due, we reserve the right to suspend the performance of Services until your account is paid in full or you have made other payment arrangements satisfactory to us. We may also suspend your access to any portion or all of the Services if: (i) we reasonably determine that (A) there is a threat or attack on our systems used to provide the Services; (B) your use of the Services disrupts or poses a security risk to us or to any of our clients or vendors; (C) you are using the Services for fraudulent or illegal activities; (D) subject to applicable law, you have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) our provision of the Services to you is prohibited by applicable law; or (F) you have failed to comply with any material provision of the MSA or SOW; (ii) any vendor of ours has suspended or terminated our access to or use of any third-party services or products required to enable you to access the Services (any such suspension a “Service Suspension”). We will use commercially reasonable efforts to (a) provide written notice of any Service Suspension to you, (b) provide updates regarding resumption of access to the Services following any Service Suspension, and (c) resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. We will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you or any Authorized User may incur as a result of a Service Suspension. Our suspension of Services will not affect your obligations to us under the MSA, any SOW, or these Terms.
3.5 Termination. You may terminate the MSA or a SOW at any time by written notice to us. Subject to any restrictions imposed by applicable ethical rules, we may terminate the MSA or a SOW at any time upon written notice to you. Termination for any reason will not affect your obligation to pay us for fees and expenses incurred prior to termination. If you terminate any SOW after we have commenced performing Services under a fixed fee arrangement, you will be obligated to pay us the entire fixed fee upon termination.
3.6 Survival of Provisions. All provisions of these Terms will survive the termination or cancellation of the MSA, except that (i) we will not have any obligation to provide Services after termination and (ii) except as provided in paragraphs 2.11, 2.14, OR IN A you will not have any obligation to pay us for any Services that we perform after termination.
3.7 Entire Agreement; Interpretation. These Terms, the MSA and any SOW, and any documents incorporated therein by reference, represent our entire agreement and understanding concerning the engagement described in the MSA and a SOW, and they supersede all prior and contemporaneous agreements. All Terms, the MSA and any SOW must be construed according to their fair meaning and not strictly for or against any party.
3.8 Amendments, Waivers and Consents. These Terms, the MSA and any SOW may not be amended except by our mutual written agreement. No waiver of any breach of these Terms, the MSA or a SOW will be effective unless the waiver is in writing and signed by the party against whom the waiver will be enforced. No waiver of any one breach will be deemed a waiver of any other or subsequent breach.
3.9 Assignment; No Third Party Beneficiaries. You may not assign the MSA, any SOW, our Privacy Policy or these Terms to any other party without our prior written consent. These Terms, the MSA, and any SOW will be binding on our and your respective successors and assigns. Except as may be expressly provided in the MSA or a SOW, there are no third party beneficiaries to the Arrangement Letter or to these Terms.
3.10 Electronic Delivery of Information. You understand and agree that any communications regarding the Services may be provided by electronic means, including without limitation any initial, periodic or other disclosures or notices provided in connection with the Services (“Communications”), including without limitation those required by federal or state law; any customer service communications, including without limitation communications with respect to claims of error or unauthorized use of the Services; any invoices or requests for payment related to the Services, whether from us or other providers we may engage on your behalf; and any news, alerts, or other information from us or one of our affiliates that we may deem beneficial or useful to you, whether related to the Services or not. Although we reserves the right to provide Communications in paper format at any time, you agree that we are under no obligation to do so. All Communications in either electronic or paper format will be considered to be “in writing.” Any electronic Communication sent by e-mail will be deemed to have been received by you when we sent it to the e-mail address you provide to us in connection with the Services, whether or not you received the e-mail.

4.1 Indemnification for Breach. Subject to the provisions of paragraph 4.2, each party will indemnify the other for any loss, liability, or obligation arising out of or relating to the indemnifying party’s gross negligence or wilful misconduct.
4.2 Opportunity to Cure and Liability Limitations. In the event that we fail to meet our obligations under the MSA, a SOW or these Terms, you must notify us in writing and provide us with the opportunity to re-perform the Services. If the Services cannot be reperformed, or if reperformance will not cure the breach, then your remedy will be for us to refund our fees relating to these Services up to the amount of your direct damages caused by our failure to meet our obligations as determined by a court of law. In no event will our liability for any claim, whether in contract, in tort, at law, or in equity, arising out of or relating to our failure to meet our obligations under the Arrangement Letter or these Terms exceed the amount of our fees actually paid to us under the Arrangement Letter. In no event will we be liable for loss of profits, revenue, sales, data, data use, goodwill, or reputation, or any consequential, indirect, special, exemplary, or punitive damages, even if we have been advised of the possibility of such damages.
4.3 Time Limitation on Claims. No claim or action by either party, regardless of whether the claim is in contract, in tort, at law or in equity, arising out of or relating to any matter under the Arrangement Letter may be brought by either party (i) more than 24 months after the party first knows or has reason to know that the claim or cause of action has accrued or (ii) more than 60 months following the completion of the Services under the Arrangement Letter. This paragraph may shorten, but in no event will it extend, any period of limitation on actions otherwise provided by applicable law.
4.4 Effect on HoganTaylor LLP. The provisions of paragraphs 4.1 and 4.2 will not limit the obligations or liability of HoganTaylor LLP under any separate agreement for the provision of accounting or attest services.

Rev February 28, 2020