TotalSDS - Master Software Agreement
This Master Software Agreement (MSA, Agreement) is executed by TOTAL SDS DBA GLOBAL SAFETY MANAGEMENT, a Delaware corporation, and the Client to record their following agreement regarding the engagement of GSM by Client to render services to Client. GSM and Client agree as follows:
1. SERVICES. Client engages GSM to provide the services (Services) specified in the quotation given (Quote) accompanying this Agreement. Services are provided under the terms of the MSA (Agreement). If Client desires any change in the Services specified in the Quote, Client shall notify GSM in writing, GSM and Client shall assess the cost and timing impacts of those changes, and, if GSM agrees to change the Services, the parties shall revise the Quote and attach the revised Quote to this Agreement. Depending on the extent and complexity of the requested changes, GSM may charge Client for the effort required to analyze the requested change (in which case, GSM will notify Client in writing of the estimated charges for that analysis. Client shall provide all requirements as specified in the Quote in a timely manner. Client shall promptly notify GSM if it is not satisfied with any of the Services to enable GSM to address the actual or perceived deficiencies. Unless otherwise covered under an annual maintenance agreement, after GSM completes the initial set-up and onboarding, GSM will make available all technical support on an “as available” and “time and materials” basis only. Any on-going maintenance and support for the Services must be agreed to by GSM and Client and will be provided under the current terms of GSM’s Services description.
2. WORK PRODUCT. All work product created by GSM for Client will remain the sole and exclusive property of GSM until all invoices relating to the work product have been paid in full. Nothing in this Agreement shall be deemed to transfer, convey, or assign to Client any of GSM’s rights in any processes, procedures, software, information, or other intellectual property that was previously owned by GSM before the commencement of the Services.
3. REPRESENTATIONS AND WARRANTIES. GSM represents and warrants that: (a) GSM is a corporation organized, existing, and in good standing under the laws of the State of Delaware; (b) the execution, delivery, and performance of this Agreement have been duly authorized by all requisite action of GSM, will not conflict with its bylaws or articles of incorporation, (c) this Agreement is a valid, binding, and effective and enforceable obligation of GSM; (d) all Services to be provided by GSM under this Agreement will be performed and rendered by qualified personnel in a professional manner; and (e) GSM will comply with any and all local, state, and federal laws applicable to or associated with the performance of its obligations under this Agreement.
4. Client warrants, covenants, and represents to GSM: (a) Client is organized, existing, and in good standing under the laws of the jurisdiction of its formation; (b) the execution, delivery, and performance of this Agreement have been duly authorized by all requisite action of Client, and will not conflict with its governing documents (c) this Agreement is a valid, binding, and effective and enforceable obligation of Client; (d) Client has trained personnel who are capable of assisting with the Services.
5. GSM reserves the right to decline to provide additional goods or services to Client (without notice or penalty), if Client fails to fulfill its obligations under this Agreement in a timely manner. If Client fails to pay any amount owed to GSM when due, Client shall pay, on demand, all costs incurred by GSM in collecting the unpaid amount. Additionally, GSM reserves the right to require an advance deposit when substantial costs can be predicted and to arrange direct billing to Client of any major costs associated with any goods or services to be provided by GSM for Client pursuant to this Agreement.
6. INDEMNIFICATION. Client will be entirely responsible for its acts and omissions, and for the acts and omissions of its agents (including GSM), employees, representatives, and independent contractors. Client shall indemnify and hold harmless GSM (and its agents, officers, directors, shareholders, and employees) from all cost, loss, damage, and liability that are incurred by them in connection with an act or omission by Client or any of its agents, employees, representatives, or independent contractors, including any errors, omissions, or negligent acts.
7. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD-PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN ANY MANNER IN CONNECTION WITH OR ARISING FROM THIS AGREEMENT, THE SERVICES PROVIDED OR TO BE PROVIDED BY GSM, OR THE USE BY CLIENT OR ANY THIRD-PARTY OF ANY PRODUCTS OR SERVICES PROVIDED BY GSM TO CLIENT, REGARDLESS OF THE FORM OF ACTION OR BASIS OF THE CLAIM (WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT TORT, NEGLIGENCE, OR OTHERWISE) OR WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR DATA, LOSS OF SAVINGS OR REVENUE, LOSS OF USE OF CLIENT’S WEB SITE OR OTHER DATA, COST OF ANY SUBSTITUTE PROPERTY, DOWNTIME, CLAIMS OF THIRD PARTIES, AND DAMAGE TO PROPERTY). GSM IS NOT LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. THE LIABILITY OF GSM TO CLIENT (IF ANY) ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE AMOUNT PAID BY CLIENT TO GSM FOR THE TOTAL OF PROFESSIONAL SERVICES FOR THE PREVIOUS 30 DAYS PURSUANT TO THIS AGREEMENT. THE LIMITATIONS OF THIS SECTION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OR ANY LIMITED OR EXCLUSIVE REMEDY.
8. WARRANTY. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, GSM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. GSM EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR THE PERFORMANCE OF ANY SOFTWARE OR HARDWARE PROVIDED BY THE CLIENT.
9. EXCEPT AS SPECIFICALLY SET FORTH ABOVE, NONE OF THE PARTIES TO THIS AGREEMENT MAKE ANY OTHER OR DIFFERENT REPRESENTATIONS OR WARRANTIES TO THE OTHER, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10. EXCUSABLE DELAY. Except with respect to payment obligations, neither party is liable to the other party for any delay or failure to perform its obligations under this Agreement due to causes beyond its control and without its fault or negligence, including wars, riots, theft, fires, floods, droughts, epidemics, hurricanes, tornados, typhoons, earthquakes, acts of God, quarantine restrictions, freight embargoes, acts of the public enemy, acts of a foreign government, and acts or omissions of a carrier (each, a “Force Majeure event”). The parties shall undertake all commercially reasonable efforts to avoid or minimize any delay. Nothing in this section limits the rights of a party to make any claim against third parties for damages caused by a force majeure event.
11. FORCE MAJEURE. The term “Force Majeure” shall be defined to include casualties or accidents, acts of God, severe weather conditions, strikes or labor disputes, war or other violence, or any law, order, proclamation, regulation, ordinance, demand, or requirement of any governmental agency, or any other cause beyond a party’s reasonable control. A party whose performance is prevented, restricted, or interfered with by reason of a Force Majeure condition shall be excused from such performance to the extent of such Force Majeure condition so long as such party provides the other party with prompt written notice describing the Force Majeure condition and takes all reasonable steps to avoid or remove such causes of nonperformance and immediately continues performance whenever and to the extent such causes are removed. Notwithstanding the occurrence of a Force Majeure condition, Client shall remain liable for the payment of any outstanding invoices and for Services rendered hereunder by GSM. Client shall not represent to any person or entity that GSM is responsible for any delay or interruption of the Services provided to Client resulting from a Force Majeure condition.
12. DISPUTE RESOLUTION PROCEDURES. GSM and Client shall resolve in the manner provided in this section other any claim, dispute, or controversy between them that arises out of, or with respect to, this Agreement or the Services (a “Dispute”).
- a. Debt Collection can be conducted via internal collections procedures or may be referred to an outside collection agency or through legal proceedings to affect the payment of any amounts due under this agreement. GSM is not required to utilize the mediation or arbitration process to collect any amounts due from the Client. Client will be responsible for all costs incurred by GSM in any legal proceeding, including all fees, costs, and expenses of agents, experts, attorneys, witnesses, arbitrators, and supersedeas bonds, whether incurred before or after demand or commencement of legal or arbitration proceedings, and whether incurred pursuant to trial, appellate, arbitration, bankruptcy, or judgment execution proceedings. A party to this Agreement who fails to pay when due any amount owed to another party pursuant to this Agreement shall pay to the other party, on demand, interest on the unpaid amount, from the date when due until paid in full, at the annual rate then provided by Florida law for the payment of interest on judgments generally.
- b. Compulsory Non-Binding Mediation. If the parties are unable to resolve a dispute by mutual agreement, they shall promptly attempt in good faith to resolve the Dispute by non-binding mediation in Tampa, Florida, in accordance with the Model Procedure for Mediation of Business Disputes of the CPR Institute for Dispute Resolution, 366 Madison Avenue, New York, New York 10017; Email: [email protected], within 60 days after the appointment of a certified civil mediator who maintains a law or dispute resolution practice in Hillsborough County, Florida, and is mutually acceptable to the parties. Any party may elect to submit the Dispute to mediation by delivering written notice to the other party that sets forth with particularity the nature of its claim or demand, the authority for making the claim or demand, and a proposed remedy or the nature and extent of any monetary claim. After consultation with the parties and their counsel, the mediator shall schedule a mediation conference for not less than one full day at a reasonable time and place within the time limits prescribed by this section. Each party and its primary counsel shall attend the mediation conference. If either a party or its primary legal counsel fails to attend the mediation conference, that party shall be liable for the other party’s reasonable cost of attending the mediation conference, including the mediator’s fee and the other party’s attorney fees and costs. The parties shall share equally the costs of mediation, including the fees of the mediator and any rental or other cost of obtaining a place for the mediation, but excluding their own expenses and attorney fees. If the parties reach a mutually acceptable settlement of the Dispute during the mediation, they shall record the settlement in a written settlement agreement that will be binding on both. Neither party shall terminate the mediation unless each of them has participated (or been afforded an opportunity to participate) in the mediation and are unable to agree on a settlement. Mediation discussions between the parties and opinions of the mediator are confidential and are not permitted to be relied on, referred to, or introduced as evidence in any subsequent litigation or other legal proceeding. All applicable statutes of limitation will be tolled during the pendency of mediation, and the parties shall take any and all action that is necessary to accomplish that tolling.
- c. Arbitration. If a Dispute is not resolved pursuant to mediation within 60 days after the initiation of the mediation, the parties must submit the Dispute to binding arbitration in accordance with the Rules for Non-Administered Arbitration of the CPR Institute for Dispute Resolution. Arbitration will then be the sole and exclusive method of resolving the Dispute, and each party will be barred from filing a lawsuit concerning the subject matter of the arbitration except to obtain an equitable remedy. The arbitration will be conducted and governed by the Florida Arbitration Act and the substantive laws of the State of Florida. Except to the extent either party is seeking injunctive relief as provided by this Agreement, any disagreement, dispute, or controversy arising under this Agreement that cannot be resolved through private discussions between the parties and mediation shall be settled exclusively and finally by arbitration. The arbitration proceedings shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the AAA Rules). The arbitration proceeding shall take place in Hillsborough County, Florida. Unless the parties agree otherwise, the arbitration panel shall consist of one arbitrator selected according to the procedure set forth in the AAA Rules in effect on the date hereof. Discovery shall be allowed by the arbitrator but shall be limited so as to minimize the expense to and impact upon each party. All discovery shall be guided by the Federal Rules of Civil Procedure. All issues concerning discovery upon which the parties cannot agree shall be submitted to the arbitrator for determination. The fees and expenses incurred by the parties or the arbitrator in connection with such arbitration shall be borne equally by the parties hereto or otherwise as the arbitrator determines. The arbitrator will not have the authority to award damages other than the type allowed by the Section of this Agreement entitled “Limitation of Liability”. Judgment upon the award rendered by the arbitrator may be entered in and enforced by any court having jurisdiction thereof.
- d. Selection of Arbitrator. The arbitration will be conducted in the English language by a Florida lawyer who is rated “AV” by Martindale Hubbell Law Directory, who is selected by agreement of the parties, and who is independent (not a relative of any officer, director, or shareholder of a party) without any economic or financial interest of any kind in the outcome of the arbitration. If the parties cannot agree on an arbitrator within 15 days after the effective date of the notice of arbitration, the party who submitted the Dispute to arbitration shall circulate to the other party a list of ten Florida lawyers who are licensed to practice law in the State of Florida, are rated “AV” by Martindale Hubbell Law Directory, and are acceptable to it to serve as arbitrator of the Dispute. The other party shall select the arbitrator from this list of proposed arbitrators and notify the other party of its selection or rejection of all the proposed arbitrators within 15 days after receiving the list of proposed arbitrators. A party who fails to select an arbitrator or notify the other party of its rejection of all the proposed arbitrators within the prescribed 15-day period waives the right to select an arbitrator, and the other party will be entitled to choose the arbitrator for the arbitration from the list of proposed arbitrators. If the parties fail for any reason to select an arbitrator within the 15-day period, the arbitrator will be selected by the CPR Institute for Dispute Resolution based on the criteria stated above. The parties shall share equally all fees and expenses charged by the CPR Institute for Dispute Dispute Resolution for its services in selecting an arbitrator. Arbitration Award. The award of the arbitrator will be final and binding as to all the parties and will not be subject to appeal, review, or re-examination by a court or the arbitrator, except for fraud, perjury, manifest clerical error, or evident partiality or misconduct by the arbitrator that prejudices the rights of a party to the arbitration. The award of the arbitrator may include an award of any damages other than treble, special, punitive, exemplary, or consequential damages, and, pursuant to the pleading of any party, any court having jurisdiction may enter a judgment of any award rendered in the arbitration.
- e. Equitable Remedies; Enforcement Litigation. Whether or not a Dispute is submitted to binding arbitration, the parties retain all rights to obtain injunctive relief and other equitable remedies to enforce their respective rights. Without limiting the generality of the foregoing, any party may (i) petition a court of competent jurisdiction to enter a temporary restraining order or preliminary injunction to preserve the status quo pending resolution of any arbitration proceeding, and (ii) commence a proceeding in any court of competent jurisdiction to enforce any arbitration award or a settlement resulting from mediation or negotiation of the parties.
13. Prevailing Party Expense Reimbursement. In any arbitration or legal proceeding arising out of this Agreement or otherwise governed by the dispute resolution provisions of this section 10, the losing party shall reimburse the prevailing party, on demand, for all costs incurred by the prevailing party in the arbitration or legal proceeding and approved by the court or arbitrator, including all fees, costs, and expenses of agents, experts, attorneys, witnesses, arbitrators, and supersedeas bonds, whether incurred before or after demand or commencement of legal or arbitration proceedings, and whether incurred pursuant to trial, appellate, arbitration, bankruptcy, or judgment execution proceedings. A party to this Agreement who fails to pay when due any amount owed to another party pursuant to this Agreement shall pay to the other party, on demand, interest on the unpaid amount, from the date when due until paid in full, at the annual rate then provided by Florida law for the payment of interest on judgments generally.
14. ASSIGNMENT; SUCCESSORS. Except as provided below, this Agreement is not assignable by GSM or Client without the advance written approval of the other party. Any assignment of rights by GSM or Client without the advance written approval of the other party will be invalid and ineffective against the other party. Notwithstanding the foregoing, GSM may subcontract and delegate some or all of its duties under this Agreement in its sole discretion. GSM and Client may assign their respective rights and obligations under this Agreement without the other party’s consent to any assignee or successor in interest of its business, whether pursuant to a merger, reorganization, or sale or exchange of all or substantially all the assets or outstanding stock of the party after giving the other party at least 20 days’ advance notice of the assignment. This Agreement is binding on, and inures to the benefit of, the parties’ respective authorized assignees and successors. Upon assignment of GSM’s or Client’s rights and duties under this Agreement, (a) every reference in this Agreement to “GSM” will include the assignee, if an assignment is made by GSM, (b) every reference in this Agreement to “Client” will include the assignee, if an assignment is made by Client, and (c) if the assignee expressly assumes in writing or by operation of law all the liabilities of the assignor generally or under this Agreement specifically, the assignor will be released from all its obligations under this Agreement.
15. NOTICES. GSM reserves the right to decline to provide additional goods or services to Client (without notice or penalty), if, Client fails to fulfill its obligations under this Agreement in a timely manner. Except as expressly set forth herein, all notices, demands, requests and other communications required or permitted hereunder shall be in writing to the last known place of business of either party, and shall be deemed to be delivered or duly received when actually received, by hand or carrier; or, if earlier and regardless of whether actually received, two (2) days after being deposited with an overnight courier service, correctly addressed and postage prepaid; or on the date of successful delivery if made by facsimile or email transmission; or four (4) business days after being deposited in the United States mail, correctly addressed and first-class postage prepaid.
16. INVOICES AND PAYMENT. (a) Payment Terms. GSM shall invoice Client for all charges to Client arising under this Agreement. Annual recurring charges will be billed in advance. All other charges for Services will be billed at the end of the month in which the Services were provided. Unless otherwise agreed to in writing as part of this agreement, Client authorizes GSM to automatically charge Client’s pre-arranged credit card or bank ACH transfer for all charges related this agreement. Clients approved for payment by invoice shall maintain a deposit on their account equal to no less than 2 months contracted and estimated charges. Any charges that are not approved by the Client’s financial institution will be processed automatically for a second time. In the event that an automatic payment authorization is not able to be processed Client will be notified by GSM and the Client agrees to remedy the automatic payment arrangements. GSM may elect at its discretion to allow the Client to be invoiced for their services. In this event Client accepts an increase of 5% of the total invoice amount as consideration for the additional processing of the Client’s billing. If invoiced, Client agrees that all invoices will be payable on receipt of invoice. Delinquent payments on the undisputed portion of an invoice will be subject to a late payment charge at a rate of 1.5% per month, or $25 whichever is greater. In the event it becomes necessary to suspend service to client’s account due to non-payment there will be a reconnection fee in the amount of one month’s service not to exceed $200. All past due invoices, late fees and reconnection fees must be paid prior to service reconnection. GSM reports the payment history of its client accounts to commercial and personal credit reporting agencies.
- a. Disputed Amounts. Client shall promptly, but in no event later than thirty (30) days after receipt of an invoice, notify GSM of any disputed invoice or credit amounts. No dispute will relieve Client from the obligation of paying the undisputed portion of an invoice. The parties agree to investigate and work together in good faith to resolve the dispute within thirty (30) days of notice to GSM. Interest shall not accrue on the disputed portion of an invoice while the parties are working in good faith to resolve the dispute. Any disputed charge not brought to GSM’s attention within thirty (30) days of receipt of an invoice will be waived and will be final for all purposes.
- b. Suspension of Services, Client Equipment. In the event Client fails to pay GSM all undisputed amounts owed GSM under this Agreement when due, Client agrees that GSM may, in addition to its right to terminate this Agreement under Section 15, (i) suspend, in whole or in part, any or all Services provided hereunder, (ii) restrict or prohibit Client’s physical and remote access to Client’s equipment, and/or (iii) take possession of any equipment provided by Client and store it, all at Client’s expense, until taken in full or partial satisfaction of any lien or judgment, all without being liable for any prosecution for damages. At such time as the provision of Service to Client is terminated, the amount of any deposit will be credited to Client’s account and any credit balance that may remain will be refunded. In addition, in the event of a recommencement of service, GSM reserves the right to charge a reconnection fee in the amount of one month’s service not to exceed $200. All past due invoices, finance charges, late fees and reconnection fees in accordance with GSM’s then effective policies must be paid before service is restored.
17. Credit Approval. The commencement, re-commencement and ongoing provision of Services are contingent upon continuing credit approval by GSM. GSM may require a deposit or other acceptable form of security if it reasonably believes itself insecure with respect to Client’s ability to pay or upon re-commencement of Services following a failure by Client to pay GSM all amounts owed when due. A deposit may not exceed the actual or estimated charges for Service for a two (2) month period.
18. GSM PERSONNEL. GSM resources are assigned to Client and are specifically prohibited from either accepting employment with or providing services to Client, except as an employee or contractor of GSM, during the term of this Agreement and for a period of Twenty-four (24) months after the termination of this Agreement and all ensuing amendments, renewals, or follow-on work associated with this Agreement. During that 24-month period, Client shall not engage in discussions or negotiations of any kind with GSM employees and contractors with respect to the potential of employment of those employees or contractors of GSM, by Client or any other person. Any breach of this section resulting in employment of a GSM employee or contractor by Client or any third person in any fashion, shall force, as remedy, an immediate payment to GSM of 24 months estimated compensation of that employee or contractor, by Client.
19. TAXES. Client shall be liable for and shall reimburse GSM, upon written notice from GSM, for all taxes and related charges paid by GSM, however designated, resulting from the services rendered, including state or local sales or use taxes and excise taxes, imposed in connection with or arising from the provision of Services, except for taxes based on the net income of GSM.
20. TERM. The term of this Agreement shall be for thirty-six (36) full calendar months or as set forth in the Quote. In either case, the term shall include an initial period consisting of one (1) partial calendar month from the commencement of service to the last day of the month of commencement followed by thirty-six (36) full calendar months. This Agreement shall automatically renew for successive periods of twelve (12) calendar months if neither party provides written notice to the other of non-renewal at least thirty (60) days prior to the end of the then current term. If the contract is not automatically renewed, then the contract will convert to month-to-month billing with a 25% premium over the previous contracted rate.
21. SURCHARGES. GSM reserves the right to add specific surcharges to recover increased costs of materials and utilities including bandwidth, diesel fuel and electric utility power. Surcharges are calculated to only recover the increased cost of those commodities and are applied proportionally to the clients that make specific use of those services based on the level of their consumption of those resources.
22. TERMINATION. GSM reserves the right to immediately suspend service to Client upon the occurrence of any of the following events: (i) Client materially violates applicable tariffs, laws, regulations, policies or use of the GSM Network in violation of the terms of the Agreement or the Acceptable Use Policy (AUP); OR (ii) Client fails to pay when due any invoice hereunder; OR (iii) Client breaches any material provision contained in this Agreement or any Schedule or Exhibit attached hereto. GSM may terminate Services, and this Agreement, if any such events occur and continues uncured for more than five days after written notice thereof from GSM. GSM is not required to provide any other notice of service termination. GSM may at its own discretion immediately terminate or otherwise alter or limit the services provided to client or take any other action it reasonably deems necessary to secure its network or to remedy a violation of its AUP.
23. EARLY TERMINATION BY CUSTOMER. In the event of an early contract termination by Client, Client agrees to pay GSM a lump sum, within five (5) days of the effective date of such termination as liquidated damages an amount equal to one hundred (100%) of the unpaid amounts remaining on the contract term. No equipment or other assets including intellectual property, domain registrations etc. may be removed or otherwise transferred away from the facilities nor will any domain transfers or other service migration be made until the client’s account has been paid in full.
24. CONFIDENTIALITY. Both parties agree that all Confidential Information furnished by either party including the details of this agreement are and shall remain the property of the disclosing party and shall be held in strict confidence. “Confidential Information" includes all technical, business, personnel, taxpayer or other information including customer or client information and details of customer accounts, however communicated or disclosed relating to past, present and future research, development and business activities of the disclosing party and that has been identified as “confidential”. Both parties agree: (i) that the receiving party and its employees may disclose Confidential Information to others only with the prior written consent of the disclosing party; (ii) not to make use of Confidential Information other than for the performance of this Agreement; and (iii) that it will not use Confidential Information for its own advantage to the detriment of the disclosing party or its customers. Confidential Information shall not include information which: (i) becomes generally available to the public (other than by the acts or omissions of the receiving party or its employees); (ii) was known prior to the date of this Agreement by “or becomes known to” the receiving party or its employees and was not obtained from any person under any obligation of confidentiality to the disclosing party; (iii) is independently developed by the receiving party; or (iv) is required to be disclosed pursuant to law, legal process or regulation.
25. AMENDMENT. This Agreement may not be modified except in writing, signed by the party against whom the modification is enforced.
26. ASSIGNMENT. Neither GSM nor the Client shall assign this Agreement or any interest therein, without the prior written consent of the other party, except in the event of the sale of all or substantially all of either party’s stock or assets or in the event of other corporate reorganizations, which consent shall not be unreasonably withheld or delayed. Any assignment prohibited hereby shall be null and void.
27. COVERED SERVICES. Global Safety Management, Inc. (GSM) will provide Client with Services as indicated in the Quote executed by Client and in accordance with the Service Level Agreement (SLA) executed by the parties. The Service Period and fees for the services are as described in the Quote. GSM’s commencement of providing services to Client as described in the Quote shall constitute Client’s acceptance of this Price Schedule.
28. SERVICE DESCRIPTION. The Services to be provided to Client are listed in the Quote. Further details of the Services are set forth in the applicable Service Description for the level of Managed Software Service Description selected on the Quote.
29. CONTENT. GSM’s provisioning of Services does not alter any of Client’s pre-existing rights, ownership, title and interest in content material (including but not limited to text, software, database files, scripts, multimedia images, graphics, audio, video, and other data), nor will GSM claim ownership of any of the aforementioned material (collectively “Content”).
30. THIRD-PARTY SOFTWARE. If Client purchases or is provided with any optional functionality which involves the acquisition of third-party software through GSM (e.g., Microsoft or Avery Software), Client agrees to sign any required third-party license agreements after review and prior to acceptance of the third-party software. GSM will not install any third-party software on Client’s server(s) without Client’s prior consent to the licensing terms. If GSM installs third-party software for Client and acceptance of license terms is affected electronically, Client will have the opportunity to review the license agreement prior to installation. In the event GSM makes any software available to Client in connection with the Services, Client acknowledges and agrees that title to such software remains with GSM and its suppliers, if any, that the content and design of such software are valuable trade secrets, and that Client may use such software only for purposes of the Services. Client agrees not to copy or duplicate, reverse engineer, de-compile or disassemble, make derivative works, or modify such software. In the event GSM installs any third-party software, required for optional functionality, not licensed to Client on equipment owned by Client, GSM shall remove the software before returning the equipment to Client. GSM strongly enforces anti-piracy laws and requires that any software installed within its facilities be properly licensed and legal versions of the software. Client affirms that it will not install any illegal or unlicensed software.
31. SUPPORT SERVICES. All Services not expressly defined in the Professional Service Agreement (MSA) shall be provided at GSM’s then current standard hourly rates and any materials shall be provided at GSM’s then current standard prices. Costs incurred by GSM for travel, subsistence, supplies and/or services shall be billed at GSM’s cost-plus GSM’s standard administrative handling charge. Client agrees to pay for such Time & Materials Services, costs, and handling charges promptly in accordance with the terms of this Agreement.
32. In the event GSM provides any of its pre-existing software to Client in connection with the Time & Materials Services, Client acknowledges and agrees that title to such software remains with GSM and that the content and design of such software are valuable trade secrets, and that Client may use such software only for purposes of the Services. Client agrees not to (i) copy or duplicate such software; (ii) reverse engineer, de-compile or disassemble such software; (iii) make derivative works from such software; or (iv) modify such software.
33. EQUIPMENT. All equipment supplied by GSM shall remain the property of GSM. Client will have no right or interest in any equipment, software or intellectual property supplied by GSM except as provided in this Agreement and the Quote. Client agrees to execute UCC financing statements when and as requested by GSM and hereby appoints GSM as its attorney-in-fact to execute such statements on behalf of Client. Client will, at its own expense, keep such equipment free and clear from any liens and encumbrances of any kind (except as caused by GSM) and will indemnify and hold GSM harmless from and against any loss or expense caused by Client’s failure to do so. Client will not remove, alter or destroy any labels on the equipment supplied by GSM stating that it is the property of GSM. If Client purchases any equipment from GSM, the terms of the attached Exhibit A entitled “Equipment Purchase Terms and Conditions” shall apply to such purchase.
34. CUSTOMER PROVIDED EQUIPMENT (CPE). In the situation in where the Client provides their own equipment; Client will have access to their equipment to perform maintenance or other activities as may be required. All CPE deployed into the data center must be inspected by GSM technical staff, and configurations must be approved prior to installation and deployment onto the GSM network. All CPE will be recorded into the GSM inventory and asset control system and will be assigned an inventory asset tag. Client will not remove any GSM asset tags from its equipment while it is located on GSM premises. No CPE may be removed from the data center without being checked out of the inventory management system. In no event will a client be allowed to remove any substantial portion of their equipment prior to the termination of the agreement. GSM reserves the right to determine what is considered a substantial portion of CPE.
EQUIPMENT LEASE RENTAL AND PURCHASE TERMS AND CONDITIONS
35. Shipping and Handling. All equipment leased, rented, borrowed or purchased by Client (the “Equipment”) is provided FOB vendor facility. Shipment will be made as specified by Client and Client is solely responsible for all expenses in connection with the delivery of the Equipment including insurance. The Equipment will be deemed accepted by Client upon shipment.
36. Purchase Price and Taxes. Client shall pay to GSM the leased, rented, borrowed or purchase price set forth in the applicable Quote (Price) for each item of Equipment. Client hereby grants and GSM reserves a purchase money security interest in the Equipment and the proceeds thereof as a security for its obligations hereunder until payment of the full leased, rented, borrowed, or purchased price to GSM. Client agrees to execute UCC financing statements when and as requested by GSM and hereby appoints GSM as its attorney-in-fact to execute such statements on behalf of Client. Unless a different period is specified in the applicable Quote, the leased, rented, borrowed, or purchased price is due and payable within thirty (30) days of shipment of the Equipment. Client shall pay all taxes and other governmental charges assessed in connection with the sale, use or possession of the Equipment including, without limitation, all sales and/or use taxes and personal property taxes (other than taxes on GSM’s net income).
37. Selection of Equipment; Manufacturer Warranty. Client acknowledges that it has selected the Equipment and disclaims any statements made by GSM. Client acknowledges and agrees that use and possession of the Equipment by Client shall be subject to and controlled by the terms of any manufacturer’s or, if appropriate, supplier’s warranty, and Client agrees to look solely to the manufacturer or, if appropriate, supplier with respect to all mechanical, service and other claims, and the right to enforce all warranties made by said manufacturer are hereby, to the extent Global Safety Management, Inc has the right, assigned to the Client. THE FOREGOING WARRANTY IS THE EXCLUSIVE WARRANTY AND IS IN LIEU OF ANY ORAL OR WRITTEN REPRESENTATION AND ALL OTHER WARRANTIES AND DAMAGES, WHETHER EXPRESSED, IMPLIED OR STATUTORY. GSM HAS NOT MADE NOR DOES IT MAKE ANY OTHER WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS AND AS TO GSM AND ITS ASSIGNEES, CUSTOMER LEASED, RENTED, BORROWED OR PURCHASED THE EQUIPMENT “AS IS”.