CFM General Terms & Conditions for Professional Services

1. Investment. Client shall purchase the Products & Professional Services from CFM at the prices (the “Price[s]”) set forth in any Work Authorization or Change Order issued. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Client, and Client shall be responsible for all such charges, costs and taxes.

2. Professional Services.
a. Services. Until the end of the Services Period, so long as Client is not in breach or default of this Agreement, CFM shall provide to Client the services set forth in any Work Authorization or Change Order agreed to, in writing, by the Parties (the “Professional Services”).
b. Services Period. The initial term during which CFM will provide the Professional Services (the “Services Period”) shall be set forth in a Work Authorization.
c. Client Responsibilities. Client shall cooperate with CFM and shall provide CFM safe and reasonable access (remote and/or on-site) to Client’s systems as may be reasonably required for CFM to perform Professional Services.
d. Product Operation. (i) Upon completion of installation of the Products, CFM will use ordinary skill and care to ensure that the Products operate properly and that content is being successfully delivered as intended. However, CFM does not warrant that the Products or the content provided pursuant to this Agreement or any Work Authorization or Change Order will operate uninterrupted or error-free.
e. Third-Party Licenses. CFM’s provision of the Professional Services as set forth in this Agreement, or any Work Authorization or Change Order, may include the use of software licensed by one or more third-party licensors. By signing this Agreement and/or any Work Authorization or Change Order, Client agrees to be bound, and to abide, by all terms of any applicable third-party licenses, including, but not limited to, the protection of confidential information as set forth in Section 10 below and such license terms as may be specified or referenced in any Work Authorization or Change Order. Copies of such third-party licenses shall be made available to Client upon Client’s written request.
f. Use of Data. Client agrees that CFM and its affiliates may collect and use technical information gathered as part of the services provided, if any. CFM shall comply with all privacy, confidentiality and other applicable laws and regulations if and when it gathers such technical information.

3. Change Orders. The terms of any Work Authorization, including, but not limited to, the scope of Professional Services and/or Products that CFM will provide to Client and the amount(s) Client will pay CFM for those Professional Services and/or Products, may be amended, modified or adjusted only by a written Change Order (i) referencing the Work Authorization to be amended and (ii) signed by both Client and CFM. All terms of this Agreement, or any Work Authorization, not expressly modified by a written Change Order (or other writing as set forth in Section 22.d.) shall remain in full force and effect. To the extent that there is any conflict between the terms of a properly executed Change Order and this Agreement, or any Work Authorization, the terms of the Change Order shall govern.

4. Limited Warranty.
a. As used herein, “Products” shall mean all items provided by CFM to Client under any Work Authorization or Change Order, other than software and services.
b. Products Warranty. CFM shall transfer to Client the manufacturer’s warranty for all Products sold to Client, but CFM provides no separate warranty on such Products, and CFM shall have no liability with regard to any defect in, or failure of, such Products.
c. d. In no event shall CFM be responsible for any failure caused by fire, flood, war, riot, civil commotion, settling or shifting of walls or foundation or components, abuse, vandalism, criminal acts, misuse of equipment, power fluctuations, failure of electrical power, other utilities or environmental controls, non-dedicated electrical circuits, or unauthorized attachments to or modifications of equipment. All labor performed pursuant to this Limited Warranty must be performed by CFM’s authorized service person. No product shall be returned to CFM without the written authorization of CFM. No person agent, or dealer is authorized to give, on CFM’s behalf, any Warranty other than the one herein expressed, or to assume for CFM any liability pertinent to equipment manufactured or sold by it under any circumstances.

5. Exclusive Remedies. THE REMEDIES SET FORTH IN SECTION 5 OF THESE GENERAL TERMS & CONDITIONS SHALL BE THE CLIENT’S SOLE AND EXCLUSIVE REMEDIES AND CFM’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 5 ABOVE.

6. All Other Warranties Disclaimed. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5 OF THESE GENERAL TERMS & CONDITIONS, CFM EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO ANY ASPECT OF THE PRODUCTS OR INSTALLATION, THEIR OPERATION, OR THE SERVICES TO BE PERFORMED BY CFM HEREUNDER, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DESIGN, CONDITION, QUIET ENJOYMENT, CAPACITY, PERFORMANCE, TITLE, ACCURACY OF DATA, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. THIS PARAGRAPH IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

7. Limitation of Liability.
a. IN NO EVENT SHALL CFM BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CLIENT OR COULD HAVE BEEN REASONABLY FORESEEN BY CFM AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b. ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, CFM SHALL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF THE TOTAL OF THE AMOUNT PAID TO CFM FOR THE SALE AND INSTALLATION OF PRODUCTS HEREUNDER AND THE AMOUNT RECEIVED BY CFM FROM CLIENT HEREUNDER FOR PROFESSIONAL SERVICES DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
c. The limitation of liability set forth in Section 8.b. above shall not apply to (i) liability resulting from CFM’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from CFM’s acts or omissions.

8. Indemnification.
Each Party agrees to defend, indemnify and hold harmless the other Party and such other Party’s respective officers, directors, employees, shareholders, customers, agents, successors and assigns from and against any and all loss, damage, settlement, costs or expense (including reasonable legal expenses and reasonable expenses of other professionals), as incurred, resulting from, or arising out of or in connection with any actual or alleged breach or default of any of the indemnifying Party’s respective obligations hereunder.

9. Confidentiality.
a. Confidentiality Obligations. Client shall hold in strict confidence and not disclose to any third party, any Confidential Information of CFM or any third-party licensor, except as specifically approved in advance, in writing, by CFM or such third-party licensor, which approval may be granted or withheld in the sole discretion of CFM or any third-party licensor. Neither Party may communicate any information to the other Party in violation of the proprietary rights of any third party. Each Party shall obtain the other’s consent prior to any publication, presentation, public announcement or press release concerning the existence or terms and conditions of this Agreement. Client acknowledges and agrees that the Confidential Information of CFM, or any third-party licensor, is proprietary to CFM or one or more third-party licensors, and that title thereto shall remain the sole and exclusive property of CFM and/or such third-party licensors. Nothing contained in this Agreement shall prohibit CFM from using any CFM Confidential Information to perform similar services for others.
b. Confidential Information. For the purposes of this Agreement, “Confidential Information” means: (i) any and all technical and non-technical information, including, without limitation, the source code and functionality of any software used in provision of the Professional Services; (ii) all other information that Client knows, or reasonably should know, is the confidential information of CFM or any third-party licensor; (iii) the terms and conditions and the existence of this Agreement; and (iv) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (v) information regarding products, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers; and (vi) information regarding the skills and compensation of CFM’s employees, contractors, and other agents.

10. Ownership and Rights to CFM Products and Code.
a. CFM may repurpose existing products, solutions and code as the foundation of work to satisfy the requirements of a Work Authorization or Change Order. Any and all products, solutions and code which is the property of or has been created by CFM prior to the execution of any Work Authorization or Change Order shall be considered the sole property of CFM.
b. Development related to remote and/or 3rd-terminal access to CDR hardware will remain the intellectual property of CFM.
c. All hardware device drivers will remain the intellectual property of CFM.
d. Development related to the integration with the core and teller platforms will remain the intellectual property of CFM. CFM retains the right to market the developed integration to other financial institutions utilizing similar core and teller platforms.

11. Compliance with Law. Client shall comply with all applicable laws, regulations and ordinances. Client shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.

12. Termination for cause. This Agreement may be terminated by a Party for cause immediately upon the occurrence of and in accordance with the following:
a. Insolvency Event. Either Party may terminate this Agreement by delivering written notice to the other Party upon the occurrence of any of the following events: (i) a receiver is appointed for either Party or its property; (ii) either Party makes a general assignment for the benefit of its creditors; (iii) either Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within 60 days; or (iv) either Party is liquidated or dissolved.
b. Default. Either Party may terminate this Agreement effective upon written notice to the other if the other Party breaches or violates any covenant, agreement, representation or warranty contained herein in any material respect, or defaults or fails to perform any of its obligations or agreements hereunder in any material respect, which breach, violation, default or failure is not cured within 30 days after notice thereof from the non-defaulting Party stating its intention to terminate this Agreement by reason thereof. Material breach, violation or default by Client will include, but not be limited to, any of the following by Client or its contractor, agent, representative, affiliate or employee: (i) nonpayment of any amounts provided for under any Work Authorization or Change Order within 60 days of Client’s receipt of an Invoice therefor; (ii) any attempt to assign this Agreement; or (iii) breach of confidentiality obligations hereunder.

13. Waiver. No waiver by either Party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by the Party against whom such waiver is sought to be enforced. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

14. Force Majeure. CFM shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when, and to the extent, such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of CFM including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage.

15. 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, 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. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

16. Governing Law. Except as expressly stated in Section 18 below with regard to arbitration proceedings, this Agreement and any and all matters arising out of or relating to this Agreement are to be governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule.

17. Dispute Resolution. CFM and Client agree that any dispute arising out of or related to this Agreement, any Work Authorization or Change Order, or any Professional Services provided pursuant to this Agreement or any Work Authorization or Change Order, shall be resolved by binding arbitration pursuant to the Federal Arbitration Act (Title 9 of the United States Code). The arbitration shall be conducted according to the then applicable Commercial Rules of the American Arbitration Association and the terms of this Agreement, and shall be held in Maricopa County, Arizona. The prevailing party in any arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs incurred, with such fees and costs to be determined by the arbitrator. Any award entered by the arbitrator may be confirmed, entered and enforced in any court having jurisdiction.

18. Notices. Any notice required or permitted to be given by either Party under this Agreement shall be in writing and shall be personally delivered or sent by a reputable overnight mail service (e.g., Federal Express), or by first class mail (certified or registered), or by email confirmed by first class mail (registered or certified), to the other Party. Notices will be deemed effective: (i) 3 working days after deposit, postage prepaid, if mailed; (ii) the next business day if sent by overnight mail; or (iii) the same day if sent by email during normal business hours and confirmed as set forth above. A copy of any notice shall be sent to the following:

If to CFM:
CFM, Inc.
6950 West Morelos Pl.
Chandler, AZ 85226
Fax (602) 864-5633
advisors@cfms4.com

If to Client:
See Work Authorization

19. Severability and Survival. 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. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Governing Law, Dispute Resolution, and Survival.

20. Miscellaneous.
a. Assignment. Client may not assign its rights or delegate its obligations hereunder, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of CFM, which consent may be given or withheld in CFM’s sole discretion. Any attempted assignment or delegation without CFM’s written consent will be void ab initio. The rights and liabilities of the Parties under this Agreement will bind and inure to the benefit of the Parties’ respective successors and permitted assigns. CFM may assign this Agreement at any time to any successor to CFM’s business or assets, whether by merger, sale of assets, sale of stock, reorganization or otherwise, without the consent of, or notice to, Client.
b. Headings. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement.
c. Entire Agreement. This Agreement, including all exhibits, which are incorporated herein by this reference, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter.
d. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each Party.
e. Counterparts. This Agreement may be executed in two counterparts, each of which shall be an original and together which shall constitute one and the same instrument.