general Client Services Agreement
This General Client Services Agreement (this “Agreement”) is between Global Network Solutions, LLC (“GNS”) and the “Client” named on the Statement of Work. The parties agree as follows:
1. STATEMENT OF WORK. GNS agrees to use to assist and/or provide Client with technology and/or cyber security services and equipment, and advice as set forth in one or more statements of work, quotes, proposals, estimates or work orders (each, a “Statement of Work” or SOW) executed from time-to-time by both parties under this Agreement (collectively, the “Services”). Each Statement of Work, when executed, shall automatically be deemed a part of, and governed by the terms of this Agreement. Each Statement of Work is enforceable according to the terms and conditions contained therein, and in the event of a direct conflict between the language of this Agreement and any Statement of Work, unless otherwise stated, the language of the SOW shall control, but only with respect to that particular SOW.
2. EXECUTED. This means any SOW that is agreed to in writing, signed or installed.
3. TERM.
a) Client understands that each Service item added is a separate term. The term (the “Term”) of this Agreement shall begin (Activation Date) on the date of first install or activation, or when you achieve 50% of your contract monthly recurring billing, whichever is later, and shall continue for one hundred twenty (120) calendar days or the longest term of any contract attachment or SOW, whichever is longer (“Initial Term”). If you elect a co-terminus agreement, your Activation Date is the date your account achieves 50% of your contract or committed monthly billing. Upon the expiration of the Initial Term, this Agreement shall automatically renew for an additional term equal to the original term unless sooner terminated in accordance with the provisions of Section 12 (Termination) of this Agreement.
b) Month-to-Month terms still require a 120-day or 4 month notice of termination are described in "TERMINATION" below unless otherwise stated in an addendum.
c) Any addendum that expires and becomes a month-to-month term must adhere to all terms and conditions of service.
4. GNS EQUIPMENT. This means equipment provided by GNS or rented from GNS to facilitate, support, monitor, secure or maintain Services provided by GNS.
5. CUSTOMER EQUIPMENT. This means equipment owned by Client or purchased from GNS to be owned by Client and presented and approved on an SOW as purchased.
6. THIRD PARTY SERVICES:
a) Client understands and acknowledges that GNS may provide third party billing on GNS invoices as a convenience for Client. GNS has no liability or responsibility for these services.
b) GNS may also provide Third Party Services combined with GNS Services. GNS provides no warranties, service guarantees or service level agreements for any third-party product or a product or service not owned, operated and managed by GNS.
7. SERVICE RATES.
a) If applicable, GNS shall bill for the Services on an hourly basis, in half hourly increments with a one hour minimum, unless otherwise specified in a SOW. Trip charges apply for service calls more than 25 miles from GNS main office or 25 miles from a technician location, whichever is applicable. Hourly rates are subject to change without notice if, on the date of such change, no open invoice or current SOW with Client exists. If a change in hourly rates will impact an open invoice or current SOW with Client, then GNS shall provide Client with thirty (30) days prior written notice of any hourly rate changes. If agreement is a 120-day term, GNS reserves the right to increase the fees for the Services by no more than five percent (5%) each calendar year, and not more than once each calendar year. If term agreement is thirty-six (36) months or longer, GNS reserves the right to increase the fees for the Services by no more than five percent (5%) each term renewal.
b) Surcharges. In addition to surcharges that may be found in the applicable Calling Plan, GNS may adjust its rates and charges or impose additional rates and charges to recover amounts it is required or permitted by governmental authorities to collect from others or pay to others in support of statutory or regulatory programs.
c) Taxes:
i. All taxes, tax-like charges, and tax-related surcharges are referred to collectively as “Tax(es).” GNS may elect to impose and collect such Taxes, unless otherwise constrained by court order or direction.
ii. Client agrees to pay all Taxes imposed, If GNS has collected Taxes and a challenged Tax is found to have been invalid and unenforceable, GNS, in its sole discretion, will either reduce service rates for a fixed period of time in the future in order to flow-through to customers an amount equivalent to the amounts collected, or it will credit or refund such amounts to affected customers (less its reasonable administrative costs).
iii. If Client provide GNS with a duly authorized tax exemption certificate, GNS will exempt Client, effective on the date GNS, receives the certificate.
8. TRAVEL ARRANGEMENTS & REIMBURSEMENTS. If travel is required and approved, Client agrees to the following:
a) Client understands that the travel budget provided is an estimate and the actual cost can be higher or lower than the estimate. If GNS discovers the actual cost will is greater than 15% of the approved amount, GNS will request a re-approval of the new amount.
b) Client agrees to reimburse GNS through payment of the next monthly recurring invoice or within 15 days of providing receipts if client does not have a monthly recurring invoice.
c) Client understands and agrees the standard of travel for airfare is business or first class.
d) Client understands and agrees the standard of lodging is Hilton, Four Seasons, Ritz-Carlton, Aman, InterContinental, St. Regis, Omni or other as agreed upon. Client also agrees that each GNS person authorized and approved for travel will have their own room.
e) Client understands and agrees to reimburse GNS for travel and food during any authorized trip.
9. PAYMENT SCHEDULE. Client shall pay a fixed amount and/or a metered amount, as designed by the GNS invoice and/or SOW. Client understands that pricing is subject to change as Services are added, modified or removed.
10. PAYMENT OBLIGATION. Under this agreement, Client agrees to the following payment obligations and terms:
a) For prepaid fees or fees paid pursuant to a service or contract plan for Services, payment must be made in advance of work performed, or Services, on an automatic payment schedule with the first monthly and startup or onboarding payment due upon signing this Agreement or SOW that references this Agreement.
b) Payment for services outside the service or contract plan is due within fifteen (15) calendar days from the date of invoice or as otherwise stated on the invoice.
c) Monthly, quarterly and annual, collectively Recurring, payments, are due by the invoice due date, by the end of the month, whichever is shorter if Client is not set up on automatic payment.
d) Late payments shall be subject to interest on the unpaid invoice amount(s) until and including the date payment is received, at the highest of either $8.00 per month, 3% per month or the maximum allowable rate of interest permitted by applicable law.
e) Client agrees there will be no request fulfillments, adds, moves or changes if any Client accounts are past due or auto payment method is invalid.
f) Client shall be liable for all reasonable attorneys' fees as well as costs incurred in collection of past due balances including but not limited to collection fees, filing fees and court costs. TIME IS OF THE ESSENCE IN THE PERFORMANCE OF ALL PAYMENT OBLIGATIONS BY CLIENT.
g) Client's agreement to pay Service Fees hereunder shall be absolute and unconditional, and shall not be subject to any abatement, reduction, set-off, defense, or counterclaim for any reason whatsoever.
11. RATE CHANGES.
a) Client understands that GNS uses some third-party services in its technology and cyber security services. These services are calculated into the cost of Services provided. If a third party raises its cost to GNS, we will pass that increase on to Client. GNS will provide Client with notification of a third-party rate or fee modification via an invoice note, letter or website posting at www.gnsinctc.com.
b) GNS may change the prices and charges for the Services from time to time especially if regulatory, network access cost, local, county, state or federal charges and/or taxes increase or become applicable.
c) Changes to any other rates, charges, or terms or conditions in this Agreement will be published to Client and will be incorporated into this Agreement.
12. CLIENT ADDRESS OR CREDIT CARD CHANGES. Client must promptly notify GNS of any change in your invoicing address or, if applicable, in the credit card or bank account used for one-time or recurring service and equipment payments. Client should notify the GNS accounting department by e-mailing at accounting@gnsinc.net.
13. USE OF GNS EQUIPMENT.
a) Tampering with a GNS Device. Client agrees not to change the electronic serial number or equipment identifier of a GNS Device, or to perform a factory reset of a GNS Device, without express permission from GNS. GNS reserves the right to terminate Client’s Service should Client tamper with a GNS Device, leaving Client responsible for the full term’s charges including without limitation unbilled charges, which immediately become due and payable.
b) Theft of Service. Client agrees to notify GNS immediately, in writing, by electronic mail or by calling the GNS customer support line, if a GNS Device is stolen or if Client becomes aware at any time that Client’s Service is being stolen, hacked or being used fraudulently. When Client calls or writes, Client must provide Client’s account number and a detailed description of the circumstances of the Device theft or fraudulent use of Service. Failure to do so in a timely manner may result in the termination of Client’s Service and additional charges to Client. Client will be liable for all use of the Service using a Device stolen from Client and any and all stolen Service or fraudulent use of the Service. Notwithstanding anything herein to the contrary, credits will not be issued for charges resulting from fraud that arises out of third parties hacking into Client’s equipment or the internet. This includes, but is not limited to, modem hijacking, wireless hijacking or other fraud arising out of a failure of Client’s internal/corporate procedures. GNS will not issue credit for invoiced charges for fraudulent use resulting from Client’s negligent or willful acts or those of an authorized user of Client’s service.
14. TERMINATION:
a) WITHOUT CAUSE. Client may terminate Services at any time for any reason (“Without Cause”), as follows:
i. Within the first thirty (30) days after the GNS Services commence, by providing GNS with written notice of Client’s desire to terminate such services. If Client terminates Without Cause within this time period, no fees or charges shall be due from Client
ii. After the expiration of thirty (30) day period described above, Client may terminate Services without Cause by providing GNS written notice one hundred and twenty (120) days or 4 full months, which ever is longer, before the end of the contract term. If Client does not cancel, remove or move Services to another provider by the end of the designated end date, Client must provide a new 120-day or 4 full month notice in writing. Client understands and agrees that any Services remaining with GNS will be permanently removed on the termination date, and may not be retrievable after termination if a Service extension is not requested or authorized
iii. If Client terminates Services Without Cause pursuant to this paragraph, and such termination occurs at any time prior to the Contract End Date, Client shall automatically forfeit any and all discount(s) and credit(s) provided to Client under the terms of the terminated Agreement, Contract Addendum or Contract Attachment or SOW and immediately pay to GNS the entire value of the remaining contract plus such discount(s) and credit(s) that appeared on any invoice during the contract term, and any associated disconnect fees or
iv. Expiration of the term or termination of Service does not excuse Customer from paying all unpaid, accrued charges due in relation to the Agreement.
b) WITH CAUSE. GNS reserves the right to discontinue, cancel, block or terminate Services for the following reasons without incurring any liability if:
i. Client’s form of payment expires or becomes invalid 7 days after the due date or before the next billing period, whichever is shorter
ii. Client refuses to furnish information or furnish false information that is essential for billing, or pertains to client’s credit worthiness, past or current use of common services, or planned use of such service
iii. Client service usage and/or charges exceed established parameters based on client’s history of usage, which may indicate a likelihood of non-payment or possible fraud
iv. Client use, or attempts use of Services with the intent to avoid payment, either in whole or in part, of the charges for the service by using or attempting to use Services by rearranging, tampering with, or making connections to Service in an unauthorized manner or using tricks, schemes, false or invalid numbers, false credit devices, or other fraudulent means or devices
v. Client acts, or fail to act, in a manner that hinders or frustrates any investigation by GNS or others having legal authority to investigate your obligations under this agreement or
vi. Client was previously provided with notice of breach of contract, took corrective action, but thereafter engage in the same breach activity vii. Client acts in a manner that is threatening, obscene, harassing, or abusive to GNS personnel or
viii. Client uses Services for unlawful purposes or
xi. Client acts in violation of section 9 (Payment Schedule) or 10 (Payment Obligation) above.
c) CONSENT. The parties may mutually consent, in writing, to terminate this Agreement or any particular SOW at any time.
d) DEFAULT. In the event that one party (a “Defaulting Party”) commits a material breach of this Agreement or a SOW, the non-Defaulting Party shall have the right, but not the obligation, to terminate immediately this Agreement or the relevant SOW provided that
i. the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and
ii. the Defaulting Party has not cured the default within sixty (60) days following receipt of written notice from the non-Defaulting Party, Notwithstanding the foregoing, a breach by Client due to non-payment shall have a seven (7) day cure period.
e) RETURN OF EQUIPMENT. Monthly charges will continue until all equipment is returned and must include associated cables and power supplies. All returned equipment must be in the original packaging with the UPC or bar code intact. All components, manuals and registration card(s) must be included or additional charges will apply. Customer is responsible for the cost of equipment return shipping. If Equipment is returned before the end of the contract term, and equipment is damaged or is unusable, Customer is responsible for payment in full of said Equipment replacement costs or the next available model if that specific model is no longer available. Customer is responsible for the cost of return shipping of equipment.
f) DATA STORAGE. If storage of data is required after termination, client agrees to pay the storage cost during the storage period after termination.
15. NO LIABILITY. GNS shall not be liable to Client or any third party for any compensation, reimbursement, losses, expenses, costs or damages arising from or related to, directly or indirectly, the termination of this Agreement for any reason. This waiver of liability shall include, but shall not be limited to, the loss of actual or anticipated profits, anticipated or actual sales, and of expenditures, investments, or commitments in connection with Client’s or any third party’s goodwill or business.
16. AUTHORIZED CONTACT PERSON. Client has designated one or more authorized contact person(s), (each, an "Authorized Contact”). Likewise, Client may designate one or more Authorized Contacts with respect to individual Statements of Work. Each Authorized Contact shall be a point of contact for GNS, and shall be authorized to provide, modify and approve on Client’s behalf, work direction, Statements of Work, and Change Orders. Client understands and agrees that GNS shall be permitted to act upon the direction and apparent authority of each Authorized Contact, unless and until GNS receives written notice from Client (as described below) that an Authorized Contact is no longer authorized to act on Client’s behalf. If during the Term of this Agreement, Client wishes to add or remove an Authorized Contact, or modify an Authorized Contact’s information or authority. Client must notify GNS in writing of the change(s) including (in the event of the addition of an Authorized Contact) the Authorized Contact's name, address, email address and telephone number.
17. SERVICE OUTAGE. Client understands that GNS services will not work under the following circumstances. Such outages may occur for a variety of reasons, including but not limited to those reasons described elsewhere in this Agreement:
a) Power Outage. Client acknowledges and understands that GNS Services do not function without power. A power failure or disruption may require Client to reset, reboot or reconfigure devices before Service resumes.
b) Broadband Service Outage. Client acknowledges and understands that service outages by Client’s broadband provider will prevent, and that network congestion may slow, ALL Services provided by GNS.
c) Equipment Malfunction or Failure. Client acknowledges and understands that Services will not work if the equipment for Services malfunctions or fails. A replacement of a part or system may be required before Service resumes.
18. ACCESS TO PREMISES. To the extent that Services are performed on Client’s premises (“Premises”), Client hereby grants to GNS the right of ingress and egress over the Premises and further grants GNS a license to provide the Services described in any SOW within the Premises. To the extent that Services are provided to Client on property other than the Premises, it shall be Client's responsibility to secure, at Client’s own cost, prior to the commencement of any Services, any necessary rights of entry, licenses, permits or other permission necessary for GNS to provide Services at such location(s). GNS shall not be liable for delay in performance or nonperformance of any term or condition of this Agreement directly or indirectly resulting from Client's denial to GNS of full and free access to Client's systems and components thereof, or Client's denial to GNS of full and free access to Client's personnel, vendors or Premises pursuant to this Agreement.
19. WARRANTIES LIMITATIONS OF LIABILITY:
a) Any third-party products provided to Client pursuant to this Agreement, including but not limited to third party hardware, software, peripherals and accessories (collectively, “Third Party Products”) shall be provided to Client “as is”, GNS shall use reasonable efforts to assign all warranties (if any) for the Third Party Products to Client, but will have no liability whatsoever for such third party products. All Third-Party Products are provided WITHOUT ANY WARRANTY WHATSOEVER as between GNS and Client, and GNS shall not be held liable as an insurer or guarantor of the performance or quality of Third-Party Products.
b) GNS assumes no liability for failure of equipment or software or any losses resulting from such failure. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ”AS-IS” AND GNS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OR REPRESENTATIONS TO CLIENT OR ANY OTHER PARTY WITH RESPECT TO THE SERVICES, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH CLIENT’S ENJOYMENT OF THE SERVICES. GNS DOES NOT REPRESENT THAT ITS SERVICES TO CLIENT ARE WITHOUT DEFECT OR ERROR.
c) IN NO EVENT SHALL GNS BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR LOST REVENUE, LOSS OF PROFITS, SAVINGS, OR OTHER ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY STATEMENT OF WORK(S) OR ANY SERVICES PERFORMED OR PARTS SUPPLIED HEREUNDER, ANY LOSS OR INTERRUPTION OF DATA, TECHNOLOGY OR SERVICES, OR FOR ANY BREACH HEREOF OR FOR ANY DAMAGES CAUSED BY DELAY IN FURNISHING SERVICES UNDER THIS AGREEMENT OR ANY STATEMENT(S) OF WORK EVEN IF GNS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GNS’S AGGREGATE LIABILITY TO CLIENT FOR DAMAGES FROM ANY AND ALL CAUSES WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR NEGLIGENCE, SHALL BE LIMITED TO THE AMOUNT OF CLIENT’S ACTUAL DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF FEES PAID BY CLIENT TO GNS FOR THE SERVICES DURING THE ONE (1) MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE CAUSE OF ACTION ACCRUED. IT IS UNDERSTOOD AND AGREED THAT THE COSTS OF HARDWARE OR SOFTWARE (IF ANY) PROVIDED TO CLIENT UNDER THIS AGREEMENT SHALL NOT BE INCLUDED IN THE CALCULATION OF THE LIMITATION OF DAMAGES DESCRIBED IN THE PRECEDING SENTENCE.
20. INDEMNIFICATION. Client hereby agrees to indemnify, defend and hold GNS harmless from and against any and all loss, damage, cost, expense or liability, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from, or are related to from the acts or omissions of Client. Client shall indemnify, defend and hold GNS harmless from any and all Damages arising from or related to (i) Client’s possession, use or resale of any Third-Party Product, Service or equipment installed or owned by GNS and, (ii) the use of the Services by Client.
21. CONFIDENTIAL INFORMATION. Confidential Information means (i) information of a party in all forms which derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, as well as (ii) information that is provided to or obtained by one party and that is valuable to the other party and not generally known by the public. Except as otherwise excluded in this Section, GNS designates all of GNS’s software, business practices, methodologies, quotes, and documentation, and other intellectual works and GNS's works of authorship as confidential. Each party will hold in confidence and, without the consent of the other party, will not use, reproduce, distribute, transmit, or disclose, directly or indirectly, the Confidential Information of the other party. The recipient of Confidential Information may disclose the Confidential Information to its employees or third-party contractors with a need to know the information for the implementation of this Agreement or any SOW. Without limiting the foregoing, the recipient of the Confidential Information agrees that it will exercise at least the same standard of care in protecting the confidentiality of the other party’s Confidential Information as it does with its own Confidential Information of a similar nature. Confidential Information shall not include information if and only to the extent that the recipient establishes that the information: (i) is or becomes a part of the public domain through no act or omission of the recipient (ii) was in the recipient’s lawful possession prior to the disclosure and had not been obtained by the recipient either directly or indirectly from the disclosing party (iii) is lawfully disclosed to the recipient by a third party without restriction on disclosure (iv) is independently developed by the recipient or (v) is, or is required to be, disclosed by the recipient pursuant to a requirement of a governmental agency or by operation of law, provided that the recipient shall disclose only that part of the Confidential Information which it is required to disclose and shall notify the owner prior to such disclosure. The obligations of the recipient of Confidential Information with regard to the Confidential Information that constitutes trade secrets of the other party remain in effect for as long as such information shall remain a trade secret under Michigan law and, with regard to all other Confidential Information, shall remain in effect during the term of this Agreement and for two (2) years thereafter.
22. COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY. GNS owns and retains all intellectual property rights in and to all of GNS’s works of authorship, including but not limited to all plans, software or software modifications developed by GNS, and all modules derived or created from such materials (collectively, “GNS’s IP”). GNS’s IP may not be distributed or sold in any form or manner without the express written consent of GNS. During the term of this Agreement, Client may use and modify any GNS IP provided to Client by GNS pursuant to this Agreement, provided that such modifications (i) do not result in or cause the infringement of any intellectual property rights of any third party, (ii) do not require Client to reverse engineer GNS’s IP, and (iii) do not negatively impact the security or integrity of any of GNS's equipment, or the integrity or implementation of the Services. Client’s limited right to use the GNS’s IP as described herein automatically terminates upon the termination of this Agreement.
23. MISCELLANEOUS:
a) SOFTWARE LICENSE. Client shall be responsible for obtaining and maintaining any and all software licenses for all software installed on, or used by, Client on Client’s computer network and equipment. Client agrees to provide copies of such licenses to GNS upon written request by GNS.
b) ASSIGNMENT. This Agreement or any SOW may not be assigned or transferred by Client without the prior written consent of GNS. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, neither party, without the prior written consent of the other party, may assign its rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of the business of a party, or any other transaction in which ownership of more than fifty percent (50%) of either party's voting securities is transferred provided such assignee expressly assumes the assignor’s obligations hereunder.
c) AMENDMENT. No amendment or modification of this Agreement or any SOW (including any schedules or exhibits) shall be valid or binding upon the parties unless such amendment or modification specifically refers to this Agreement, is in writing, and is signed by one of the Designated Contacts of each party.
d) USE OF NAME AND LOGO. Each party grants the other party the right to use its name and logo for the legal purpose of marketing, references and business development. Marketing and business development, unless otherwise agreed in writing, is limited to websites, displays, flyers, brochures and social media.
e) TIME TO BRING CLAIMS. The parties mutually agree that any action for breach of or upon a matter arising out of this Agreement or any SOW must be commenced within one (1) year after the cause of action accrues or the action is forever barred.
f) SEVERABILITY. If any provision hereof or any SOW is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability so that the remainder of that provision and all remaining provisions of this Agreement or any SOW shall be valid and enforceable to the fullest extent permitted by applicable law.
g) ENTIRE AGREEMENT. GNS shall not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication between the parties unless such terms or conditions are incorporated into a duly executed SOW. In the event any provision contained in this Agreement is held to be unenforceable in any respect, such unenforceability shall not affect any other provision of this Agreement, and the Agreement shall be construed as if such an unenforceable provision or provisions had never been included in this Agreement. The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, shall not constitute an Agreement to waive such terms with respect to any other occurrences. This Agreement, together with any Statement(s) of Work, sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. Any document that is not expressly and specifically incorporated into this Agreement or SOW shall act only to provide illustrations or descriptions of Services to be provided, and shall not act to modify this Agreement or provide binding contractual language between the parties. GNS may change the Terms and Conditions of the Agreement from time-to-time. Notices will be considered given and effective on the date posted at www.gnsinctc.com. GNS shall not be bound by any agents’ or employees’ representations, promises or inducements not set forth herein.
h) FORCE MAJEURE. GNS shall not be liable to Client for delays or failures to perform its obligations under this Agreement or any SOW because of circumstances beyond its control. Such circumstances include, but shall not be limited to, any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, delays in transportation or deliveries of supplies or materials, acts of God, or any other events beyond the control of GNS.
i) NON-SOLICITATION AGREEMENT. Client acknowledges and agrees that during the term of this Agreement and for a period of two (2) year following the termination of this Agreement, Client will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of GNS’s employees, subcontractors or vendors to discontinue or reduce the scope of their business relationship with GNS, or recruit, solicit or otherwise influence any employee, agent or vendor of GNS to discontinue such employment or agency relationship with GNS. In the event that Client violates the terms of the restrictive covenants in this Section 23(i), the parties acknowledge and agree that the damages to GNS would be difficult or impracticable to determine, and agree that in such event, as GNS’s sole and exclusive remedy therefore, Client shall pay GNS as liquidated damages and not as a penalty an amount equal to one hundred fifty percent (150%) percent of that employee or subcontractor’s first year of base salary with Client (including any signing bonus), plus stock or equity in Client’s organization equivalent to fifty percent (50%) of any stock or equity grant made as part of Client’s hiring of such employee or subcontractor.
j) SURVIVAL. The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement shall survive, including without limitation, the Sections 1, 6, 9, 15, 19, 20, 21, 22 and 23.
k) WAIVER. No provision of this Agreement or any SOW may be waived except with the written consent of the waiving party, which consent will specifically refer to such provision and explicitly make such waiver or amendment. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this Agreement shall constitute a consent to any prior or subsequent breach.
l) INSURANCE. GNS and Client shall each maintain, at their own expense, all insurance reasonably required in connection with this Agreement or any SOW, including but not limited to, workers compensation and general liability. GNS agrees to maintain a general liability policy with a limit not less than $1,000,000 per occurrence.
m) GOVERNING LAW VENUE. This Agreement and any SOW shall be governed by, and construed according to, the laws of the State of Michigan. Client hereby irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts in Oakland County, in the State of Michigan, U.S.A. for any and all claims and causes of action arising from or related to this Agreement. THE PARTIES AGREE THAT THEY WAIVE ANY RIGHT TO A TRIAL BY JURY FOR ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING FROM OR RELATED TO THIS AGREEMENT.
n) NO THIRD-PARTY BENEFICIARIES. The Parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement,
o) USAGE IN TRADE. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties to this Agreement shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement) NON-EXCLUSIVE. Client acknowledges and agrees that the Services are not exclusive to Client, and GNS may provide the same or similar services to any of GNS’s other Clients.
p) BUSINESS DAY. If any time period set forth in this Agreement expires on a day other than a business day in West Bloomfield, Michigan, such period shall be extended to and through the next succeeding business day in West Bloomfield, Michigan, U.S.A.
q) NOTICES. Where notice is required to be provided to a party under this Agreement, such notice shall be deemed delivered upon receipt by the receiving party, or refusal of delivery, when deposited in the United States Mail, first class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by FedEx to the addresses set forth above for client, or to the following address for GNS: Global Network Solutions, Attn: Contract Management, 6689 Orchard Lake Rd, Suite 313, West Bloomfield, MI 48322
r) OTHER ADDRESS OR PERSON. Each party may designate other addresses and/or persons to receive notice under this Agreement by providing the other party with complete designated contact information, in writing, no less than five (5) days before such notice modifications take effect,
s) COUNTERPARTS. The parties may execute and deliver this Agreement and any SOW in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall be deemed to be one agreement. Each party acknowledges and agrees that this Agreement is intended to be executed and transmitted to the other party via electronic means. Accordingly, a party may execute and deliver this Agreement (or any SOW) electronically (e.g., by digital signature, electronic reproduction of a handwritten signature, or posting an agreement and referencing it on a SOW), and the receiving party shall be entitled to rely upon the apparent integrity and authenticity of such signature for all purposes.