TERMS AND CONDITIONS
These Terms and Conditions set forth the terms and conditions governing the Statement of Work, (the “SOW”), between Gen L Elevator, LLC. (the “Company”) and the Customer specified in the applicable SOW (the “Customer”) (the SOW, any SOW Amendment, and these Terms and Conditions, collectively, the “Agreement”). Any capitalized terms in these Terms and Conditions that are not defined herein shall have the meaning ascribed to them in the SOW.
1. DELIVERY OF SERVICES
a. Overview. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to make the Services available to Customer in accordance with the terms (and subject to the conditions) of this Agreement.
b. Completion of Work. All Services, including any Additional Services (as defined below), shall be performed in a timely manner and diligently completed in accordance with the terms of the Agreement; provided, however, that the Company under no circumstances be responsible for circumstances beyond the Company’s control, including without limitation, any Force Majeure Events (as defined below), the work of other third-party service providers, work outside of the Scope, work which are Exclusions, or other causes outside of the Company’s control which may delay the delivery of Services.
c. Updates and Changes to Services. Company reserves the right to make changes to the Services, and the applicable details and specifications, from time to time, and as agreed between the Parties, including to amend, improve, or add new services, or to reflect changes in laws, regulations, rules, technology, industry practices, and availability of third-party services. Customer will reasonably cooperate with Company to help secure the delivery of Services as requested by Company from time to time.
d. Additional Services. From time to time, Customer may request Company to amend the Services, Term of Services, or to perform certain nonrecurring services, including, without limitation, any work outside the Scope specified in the SOW, overtime work, and additional services not otherwise specified in the SOW (“Additional Services”). In such cases, Customer and Company will negotiate in good faith the scope of work and the pricing for such Additional Services, which may be captured in one more amendments to the SOW executed by Company and Customer (“SOW Amendments”). Upon Customer and Company entering into a specific SOW Amendment, the SOW Amendment will become a part of this Agreement and will be subject to the terms and conditions of this Agreement except to the extent expressly provided otherwise in such SOW Amendment. For any SOW Amendment executed by both Company and Customer, Company will perform the specified Additional Services and Customer will make the payments specified in such SOW Amendment.
2. TERM; TERMINATION; AND SURVIVAL
a. Term. This Agreement shall begin as of the Effective Date and shall continue to be effective until terminated in accordance with the terms of this Section 2 (collectively, the “Term”).
b. Renewal. At the expiration of the Initial Service Term or any then-current Term, this Agreement shall automatically renew for additional one (1) year terms (collectively, a “Renewal Term”).
c. Termination for Convenience. Company may terminate this Agreement, in whole or in part, at any time by giving written notice of termination to the Customer, and Customer may terminate this Agreement, in whole or in part, by giving thirty (90) days’ written notice of termination before the end of the agreement term to the Company.
d. Effect of Termination.
i. In the event of a termination by Customer pursuant to this Section 2, Customer shall receive a pro-rated refund for any Services not yet rendered during the remainder of the Term (or any Renewal Term) within thirty (30) days following the applicable termination date.
ii. In the event of a termination by Company pursuant to this Section 2 (or in the event of any termination by Customer other than as agreed to in this Section 2), in addition to (and not in lieu of) any other remedies available to Company in accordance with this Agreement and/or applicable law, Company shall be entitled to receive (or retain) all Service Fees.
iii. Upon the termination or expiration of this Agreement, the following terms will survive: Section 3 (Payment of Fees), Section 6 (Compliance with Laws), Section 7 (Confidentiality), Section 8 (Intellectual Property), Section 9 (Indemnification), Section 10 (Warranty and Disclaimer), Section 11 (Limitation of Liability), Section 12 (Hazardous Materials), Section 13 (Miscellaneous).
3. PAYMENT OF FEES
i. In exchange for the Services, the Customer will pay to Company the applicable Services Fees as set forth in the SOW and any SOW Amendment, and any applicable ancillary charges and fees related thereto (the “Fees”).
ii. Company reserves the right to change the Fees or and to institute new Fees, including any fees for Additional Services (collectively, the “Additional Fees”), during the Term or any subsequent Renewal Term upon seven (7) days’ prior written notice to Customer.
b. Payment of Fees.
i. The Company shall issue to Customer an invoice for Fees and Additional Fees as set forth in the SOW (collectively, the “Fee Invoice”).
ii. Except as set forth in the SOW or any SOW Amendment, Customer hereby acknowledges and agrees that full payment for any Fee Invoice for the Implementation Fee and Service Fee must be received by Company no later than thirty (30) days of the mailing date of the Fee Invoice for such Fees.
iii. Except as set forth in the SOW or any SOW Amendment, Customer hereby acknowledges and agrees that full payment for any Fee Invoice for any Additional Fees, if any, must be received by the Company no later than five (5) business days after the Customer’s receipt of the Fee Invoice for any such Additional Fees.
iv. Payments for Fee Invoices will be set up by via check, ACH/bank wire (Company bank wire instructions are available upon request).
v. If any part of the Fees charged to Customer’s credit card or paid via ACH or similar electronic payment method are declined, reversed, charged back or for any other reason is not paid in full via such electronic payment method, Company shall have the right, exercisable in its sole discretion and without prejudice to any of its other rights or remedies under this Agreement, to either resubmit such charges to Customer’s form of payment or invoice Customer for the amount of such charges (with payment due within five (5)days after receipt of such invoice), in each case, plus a returned payment charge of $50 or the maximum permitted by applicable law, if less. All unpaid amounts are subject to a finance charge of 10% per annum on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection (including, without limitation, reasonable attorney’s fees) and may result in immediate termination of Service.
vi. In the event any amounts owed by Customer pursuant to the terms of this Agreement are not received byCompany when due, Company shall have the right to suspend any and all Services upon written notice to Customer until any and all such past-due amounts are paid in full. All remedies contained herein shall be inaddition to (and not in lieu of) any and all remedies available to Company pursuant to this Agreement and/orapplicable law.
c. Fee Disputes. If Customer would like to dispute any Fees or amounts set forth in the Fee Invoice(s), then Customermust send to Company a written notice of such dispute (the “Fee Dispute”) no later than thirty (30) days after the mailing date of the Fee Invoice containing any alleged errors. All Fee Disputes should be directed to Company’scustomer support department.
d. Payment of Taxes. Any applicable sales tax will be added to Fee Invoices. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
4. OBSOLETE EQUIPMENT
a. Equipment may become obsolete during the Term or a subsequent Renewal Term (collectively, “Obsolete Equipment”). Such Obsolete Equipment, including any Equipment modifications necessary to accommodate the replacement thereof, are not covered under this Agreement. Company will provide Customer with separate Fee Invoice to replace Obsolete Equipment or install modifications necessary to accommodate the replacement of such Obsolete Equipment.
b. As used herein, Obsolete Equipment include Equipment that can no longer by economically produced, including, without limitation due to the following: (i) the cessation of consistent sources of materials, (ii) a loss or termination of a manufacturing process occurs, (iii) product reliability analysis showing that it is not economically feasible to produce the Equipment, (iv) escalation of Equipment costs beyond acceptable industry expectations drive alternative Equipment upgrades, (v) the support of product safety programs or conformance to codes or standards mandates the use of Equipment be discontinued in its entirety, (vi) the original equipment manufacturer designates the Equipment as obsolete, (vii) where such Equipment has been installed 20 or more years.
c. No exception to the above will be made for any Equipment designated as Obsolete Equipment even if such Equipment can be custom made or acquired at any price. Company will not be required to furnish reconditioned or used Equipment.
d. In the event that the Company installs Equipment which replaces the Obsolete Equipment, such replacement Equipment shall be covered under this Agreement until such time as it becomes Obsolete Equipment.
5. RECORDS AND AUDITS
a. Company shall at all times maintain a system of accounting records in accordance with its normal billing procedures, together with supporting documentation for all Services performed under the Agreement. Company shall make available for audit by the Customer copies of all directly applicable records related to the Services performed under this Agreement, deliverable to the Customer at the Customer’s expense (the “Records”).
b. All Records shall be made available to the Customer during the Initial Service Term and any subsequent Renewal Term.
6. COMPLIANCE WITH LAWS
a. Export Restrictions. Customer may not remove or export from the United States or allow the export or re-export of the Services, anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations ofthe United States Department of Commerce, the United States Department of Treasury Office of Foreign AssetsControl, or any other United States or foreign agency or authority and/or other applicable laws and regulations.
b. Compliance with Laws. Customer represents, covenants, and warrants that Customer will comply with all applicablelaws, rules and regulations, including without limitation all federal, state, and local laws.
c. Indemnification for Compliance. Customer hereby agrees to indemnify and fully and completely hold harmlessCompany against any and all damages, losses, liabilities, settlements and expenses (including, without limitation, all related costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of the Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (oralleged to be) in violation of the foregoing.
d. Equipment and Ancillary Services. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise receive the Services or Additional Services, as applicable.
a. Confidential Information. As used herein, “Confidential Information” means any information disclosed by the Company to the Customer in connection with this Agreement. Confidential Information includes all information that is communicated orally, or that is in written, electronic, graphic, machine readable or in other tangible form, provided that such information is identified as “Confidential”, “Proprietary” or in some other manner to indicate its confidential nature, or that it should be reasonably known under the circumstances as being confidential. Confidential Information will include all technology, technical and business information, and all other tangible items and electronically stored data, including materials, formulations, compositions, prototypes, structures, designs, software, documentation, systems, files, records, databases, drawings, artwork, designs, displays, audio-visual works, manuals, specifications, flow charts, web pages, customer lists, test cases, customer support information, electronic and other data, tangible embodiments of technical or business data, marketing collateral, market requirement documentation, R&D development specifications, protocol specifications, and any other similar technology, information, data, materials and tangible or intangible items. The Services and any modifications or extensions made in connection with this Agreement will be the Confidential Information of Company. The Customer’s technology, and any modifications or extensions made in connection with this Agreement to Customer’s technology, will be the Confidential Information of the respective Customer. Notwithstanding the foregoing, Confidential Information will exclude any information that (i) was at the time of disclosure, or later becomes generally known and available in the public domain, through no fault of the Customer; (ii) was known to the Customer at the time of disclosure; (iii) is publicly disclosed with the prior written approval of the Customer; (iv) was, or is later independently developed by the Customer without any use of the Company’s Confidential Information; or (v) becomes known to the Customer from a source other than the Company and not in violation of the Company’s rights.
b. Confidentiality Obligations. With respect to any Confidential Information disclosed under this Agreement by Company:
i. Customer will treat such Confidential Information as confidential and will handle it using at least the same procedures and degree of care which it uses to prevent the misuse and disclosure of its own confidential information of like importance, but in no event less than reasonable care;
ii. Customer will only use such Confidential Information as expressly permitted under this Agreement and only to the extent necessary;
iii. Customer will not disclose any such Confidential Information to any of its employees, consultants or other individuals or entities except to the extent necessary for the purposes of this Agreement and subject to confidentiality and nonuse obligations at least as protective of the Company as those set forth in this Agreement (in which case Company will remain responsible for any noncompliance by such employees, consultants or other individuals or entities); and
iv. Customer will keep confidential the terms of this Agreement. Customer will not reverse engineer, disassemble or decompile any Services or other technology made available by the Company under this Agreement, except to the extent that this clause is not enforceable under applicable laws.
v. Customer hereby agrees that the confidentiality obligations set forth in this Section 7(b) shall be effective for five (5) years following the disclosure thereof or any Confidential Information.
8. INTELLECTUAL PROPERTY
a. Company IP Rights. Except for the right to use the Services as set forth in this Agreement, Company owns and will retain all right, title and interest in and to the Services and all related Software and other technology used to deliver the Services, and to all IP Rights (as defined below) in and to all such Services and other technology. Company will retain ownership of its own respective technology (including software and hardware), services and IP Rights.
i. As used herein, “IP Rights” shall mean any and all intellectual property rights anywhere in the world, including all (a) methodologies, processes, techniques, and know-how relating to the Services (“Company Service Methods”), (b) patents, including utility patents, design patents, utility models, industrial designs, statutory registrations and all other equivalent or similar rights anywhere in the world in inventions and discoveries, together with any applications thereof, (c) copyrights and all other similar rights in Software, documentation, and other works of authorship, (d) mask work rights, (e) trade secrets rights and other similar rights in oral and written confidential information, know-how, documentation, technology and software, (f) rights in all trade names, logos, common law trademarks and service marks, trademark and service mark registrations, and applications therefore, (g) rights in mask works, chip topographies, and chip or product layouts and designs; (h) rights in all moral and economic rights of authors and inventors, however denominated; and (i) any other similar, corresponding or equivalent rights to any of the foregoing related to any technology, hardware, software or services.
b. Work Product. All documents of whatsoever kind or nature, if any, produced as a result of the performance of Services under this Agreement by Company, or related to the Company Service Methods, including but not limited to all printed materials and electronic documents relating to the foregoing, shall be the sole property of the Company and may not be used, sold, transferred to third parties, disclosed to third parties, or disposed of in any manner without prior written approval of the Company.
c. Company Service Methods. Notwithstanding anything to the contrary herein, under no circumstances shall Company be required to provide access to any type of license for the Company Service Methods or any other document or information that Company in its sole discretion considers confidential and/or proprietary.
a. Customer hereby expressly agrees to defend, indemnify and hold harmless Company, its officers, agents, employees and insurers against any and all liability, loss, damage, action, cause of action or expense (including court costs and reasonable attorneys’ fees) which may result from any loss, injury, death to any person or tangible personal property that arises out of or is caused by any negligent act or wrongful act or omission of the Customer, its officers, agents or employees (or the Customer’s subcontractors, or any of said subcontractor’s officers, agents or employees) in connection with, or in any way arising out of (i) this Agreement, (ii) any use of the Customer’s equipment that is the subject of any of the Services, or (iii) any other contractor’s performance of services on any of Customer’s equipment which may have been the subject of the Services. Customer’s obligation to defend and indemnify shall survive any termination or expiration of this Agreement.
10. WARRANTY AND DISCLAIMER
a. Company shall use its commercially reasonable efforts to deliver the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable due to Force Majeure Events, or because of other causes beyond Company’s reasonable control, but Company shall use commercially reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
b. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANT AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. LIMITATION OF LIABILITY
a. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. (I) IN NO CASE SHALL COMPANY (OR ANY OF ITS SUPPLIERS AFFILIATES, PARTNERS OR ANY OF THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, SUCCESSORS AND ASSIGNS) BE LIABLE TO ANY CUSTOMER OR ANY THIRD PARTIES FOR ANY CONSEQUENTIAL, INDIRECT PUNITIVE, EXEMPLARY, INCIDENTAL, OR SPECIAL DAMAGES PURSUANT TO THIS AGREEMENT OR THE SERVICES TO BE RENDERED BY COMPANY HEREUNDER; AND (II) IN NO EVENT WILL THE TOTAL AGGREGATE MAXIMUM LIABILITY INCURRED BY COMPANY (AND COMPANY’S SUPPLIERS, AFFILIATES, PARTNERS OR ANY OF THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, SUCCESSORS AND ASSIGNS) PURSUANT TO THE TERMS OF THIS AGREEMENT ACTUALLY EXCEED THE AMOUNT ACTUALLY PAID TO COMPANY BY CUSTOMER AS A FEE IN CONNECTION WITH THE SERVICES PURSUANT TO ANY SOW OR SOW AMENDMENT UNDER WHICH THE CLAIM ACTUALLY AROSE.
12. HAZARDOUS MATERIALS.
a. The Parties hereby acknowledge and agree that the Services shall not include any abatement or disturbance of asbestos containing material (ACM), presumed asbestos containing materials (PACM) or other hazardous materials (i.e. lead, PCBs) (collectively “HazMat”). Company shall have the right to discontinue its work in any location where a suspected HazMat is encountered or disturbed. Any HazMat removal or abatement, or delays caused by such, required in order for Company to perform its work shall be Customer’s sole responsibility and expense and shall no give rise to any occasion of breach by Company of any of the Company’s obligations under this Agreement.
a. Severance. If any provision in this Agreement is held to be invalid or unenforceable for any reason, such provision will, to the extent of such invalidity or unenforceability, be severed, but without in any way affecting the remainder of such provision or any other clause in this Agreement, and the provision will be replaced with a provision which, to the extent permitted by applicable law, achieves the purposes intended by the invalid or unenforceable provision.
b. Assignment. This Agreement may not be assigned or transferred by the Customer except with Company’s prior written consent. Company may assign this Agreement (together with all SOWs) without consent in connection with a corporate reorganization or a sale or transfer of all or substantially all of its stock, assets or business relating to this Agreement.
c. Entire Agreement. This Agreement represents the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written and oral agreements, communications and other understandings relating to the subject matter hereof, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
d. Relationship between Parties. The Parties expressly acknowledged and agree that the Company is an independent contractor and not an employee or agent of the Customer, and nothing in this Agreement is intended or shall be construed to create an employer/employee relationship, or to allow Customer to exercise control or direction over the manner or method by which Company performs the services which are the subject matter of this Agreement. Provided further, no agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
e. Non-Exclusivity. The Customer hereby agree that this is not an exclusive agreement, and that Company may perform similar Services for other customers at its sole discretion.
f. Authority. Each Party represents to the other Party that it has the power to enter into this Agreement and that the same shall not conflict with any other written obligation entered into by such Party and that each Party’s signatory has the proper authority to enter into this Agreement on behalf of such Party.
g. Notices. All notices or other communications relating to the performance, enforcement, or other legal aspects of this Agreement will be in writing and will be considered received by each Party upon the following: (i) upon personal delivery, or (ii) (A) if sent by overnight courier, upon electronic confirmation of delivery, or (B) if sent by certified or registered mail, return receipt requested, upon receipt of the return receipt, at the address for each Party set forth in the SOW. Any other communications between Customer and Company, including relating to the technical and business collaboration under specific Orders or SOWs, may be conducted over telephone, email, or by other means reasonable under the circumstances and mutually acceptable to Customer and Company.
h. Injunctive Relief. Each Party hereby acknowledges and recognizes that that a breach of the covenants and obligations contained in [Section 7 and Section 8] would cause the other party substantial and irreparable damage and therefore, in the event of any such breach, in addition to other remedies which may be available at law or in equity, the non-breaching party shall have the right to seek specific performance and other injunctive and equitable relief.
i. Interpretation. The parties acknowledge that each party has reviewed this Agreement and that normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.
j. Construction. For purposes of this Agreement, unless otherwise required by the context: the singular number will include the plural, and vice versa; the verb “may” indicates a legal right to perform the respective activity but does not establish a legal obligation to perform that activity; and the words “include,” “including” and “for example,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” The headings in this Agreement are for convenience of reference only and will not be referred to in connection with the construction or interpretation of this Agreement. English is the official language of this Agreement. This Agreement may be translated and/or executed in languages other than English, but the Parties agree that the English version will control. Each Party waives any rights that it may have under the laws of any country or jurisdiction to have this Agreement written in any local language, or interpreted or superseded by local law in those countries.
k. Amendments. No amendment or modification of this Agreement will be valid or binding upon the Parties unless made in writing and executed by authorized representatives of each Party, except as otherwise expressly provided in this Agreement. This Agreement includes all SOWs and SOW Amendments (if any), and any schedules, attachments, and amendments thereto, each of which are expressly incorporated and made a part of this Agreement. This Agreement supersedes all prior agreements and understandings, including oral representations, between the Parties relating to its subject matter.
l. Order of Precedence. In case of any conflict between the Terms and Conditions and any SOW, SOW Amendment (if any), or other document, the terms of the SOW or SOW Amendment (as applicable) will prevail unless otherwise expressly stated in such SOW, SOW Amendment, or other document.
m. Waivers. Waiver of breach of any provision of this Agreement on any occasion will not be deemed a waiver of that provision or of any other provision on any other occasion, nor will such waiver affect the right of either party to terminate this Agreement.
n. Force Majeure. In no event shall either Party be liable for any breach of this Agreement, and shall further excused from performance of this Agreement, in the event of any delay in delivery or for non-delivery of the Services, in whole or in part, caused by the occurrence of any contingency beyond the reasonable control of that Party, including but not limited to, acts of war (whether an actual declaration thereof is made), sabotage, insurrection, riot or other act of civil disobedience, actual or threatened act of terrorism or of any other public enemy, pandemic or other large-scale health-related events, hacking or other cyber-attacks, failure or delay in transportation, act of any government or any agency or subdivision thereof affecting the terms of this contract or otherwise, judicial action, labor dispute, accident, defaults or suppliers, fires, explosion, flood, storm or other act of nature, shortage of labor, fuel, raw material or machinery or technical or yield failures (collectively, the “Force Majeure Events”).
o. Governing Law. This Agreement shall be governed by the laws of the State of Maryland without regard to its conflict of laws provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in Anne Arundel County, Maryland and each party consents to the jurisdiction thereof.
p. Counterparts. This Agreement may be executed in counterparts, all of which shall constitute one single agreement between the parties hereto. This Agreement may be executed and delivered by facsimile or by email in portable document format (.pdf), and delivery of the signature page by either such method will be deemed to have the same effect as if the original signature had been delivered to the other party.