ARTICLE 2

 

Customer Responsibilities

 

2.1               Customer Content.  Except as provided otherwise, Customer is and shall be solely responsible for the renewal, updating, deletion, content, control and all other aspects of any files, images, graphics, audio, video, text, data or other objects of an Event (as defined in Section 3.1 hereof), including any third party content or materials, originating or transmitted from any files owned or operated by Customer, and/or uploaded or routed to, passed through and/or stored on or with the Customer Network or otherwise provided to CUSTOMER in any medium or transmitted or routed using the Services (“Customer Content”).

 

2.2               Ownership of Content.  Customer owns all right, title, and interest in the Customer Content, or possesses or shall possess all legally valid rights in the Customer Content necessary for the uses of the Customer Content contemplated by this Agreement.

 

2.3               No Infringement.  Customer shall not transmit or route to the Customer Network or otherwise direct via the Services any Customer Content that (a) infringes any copyright, trade secret, or other intellectual property right, (b) contains libelous, defamatory, or obscene material under any applicable law, or (c) otherwise violates any laws or regulations relating to content or content distribution.

 

2.4               Actual Knowledge of Infringement.  In the event Customer has actual knowledge that any Customer Content infringes the intellectual property or other rights of a third party, violates Section 2.2 or 2.3 above, or violates any applicable laws or regulations (including without limitation, laws and regulations relating to indecency or obscenity), Customer shall remove such Customer Content from Customer’s files.

 

2.5               Payment.  Customer shall pay the fees for services as specified in the applicable Addendum.

 

2.6              Platform.  The parties understand and agree that Services shall depend upon work provided by C-Print contractors such as vendors of hardware, connectivity, firewall, Internet access, facilities, etc. as specified in the Addenda, the service and results of which shall be Customer’s responsibility.  Delays or problems caused by third party contractors shall not be the responsibility of GeniusCo Support Services, LLC.

 

ARTICLE 3

 

Software

 

3.1              Definitions.  The following defined terms shall apply throughout this Agreement and any Addenda and exhibits:

 

  1. Product.  The term “ Product” means any computer program in object code developed by GeniusCo Support Services, LLC for the specific needs of Customer or as specified in the Addenda.  For purposes of this Agreement, the  Product is initially limited to one microcomputer operating system.

 

  1. Authorized User(s).  The term “Authorized User(s)” means any current employee or customer user of Customer.

 

  1. Local Network System.  The term “Customer Network System” or “Local Network System” means multiple, interactive user terminals connected to at least one single processing or multi-processing micro computing unit which functions as a production web server owned, leased or operated by Customer, which is located at .

 

  1. Key Person.  The term “Key Person” means a person affiliated with Customer, designated by Customer in Section 3.7 of this Article 3 and authorized by Customer (i) to receive, retain custody of, and to make back up copies of the  Product and updates of the  Product; (ii) to arrange for the bulk purchase of user manuals and supplements thereto for use by Authorized Users; (iii) to procure any technical assistance from GeniusCo Support Services, LLC needed in connection with the use of the  Product; and (iv) to receive GeniusCo Support Services, LLCs newsletters, announcements and bulletins concerning updates and supplements to the  Product.

 

  1. Hardware.   The term “Hardware” shall mean the Customer Network System equipment and components listed on any Addenda, or schedules or exhibits thereto, including any replacements and upgrades.

 

 

  1. Event.  The term “Event” shall mean a project of limited duration which has a development and/or implementation term of six (6) months or less.

 

3.2              Purchased System Operations Software.  GeniusCo Support Services, LLC possesses the necessary rights, title and licenses in and to the commercial systems Software and Documentation (each defined in the Addenda) necessary to license the Software and perform the Services hereunder.  In connection with the provision of the Services, GeniusCo Support Services, LLC will provide to Customer, as necessary, documentation of commercial software identified in the applicable Addenda (collectively, the “Documentation”), or a combination thereof, as required by the Customer to use the Services.

 

3.3              License.  In accordance with the terms of this Agreement, GeniusCo Support Services, LLC grants to Customer, and Customer accepts from GeniusCo Support Services, LLC, exclusive use, ownership, and distribution rights of  the  Product.

 

3.4              Ownership of  Product.  Customer represents that it is, and on the date of the delivery of the Product will be, the sole owner and copyright holder of the  Product; that it has, and on the date of the delivery of the  Product will have, the full right and authority to grant this license; and that neither this license nor performance under this Agreement does or shall conflict with any other agreement or obligations to which GeniusCo Support Services, LLC is a party or by which it is bound.

 

3.5              Title to and Rights in  Product.

 

  1. Proprietary Rights.

 

(i) The Product and updates of the Product and derivative works prepared based on the Product are proprietary to the Customer, and title to them remains with the Customer.  All applicable common law and statutory rights in the Product and updates of the Product, including, but not limited to, rights in confidential and trade secret material, source code, object code, trademarks, service marks, patents, and copyrights, shall be and will remain the property of the Customer.  GeniusCo Support Services, LLC shall have no right, title, or interest in such proprietary rights.  GeniusCo Support Services, LLC agrees not to apply any enhancements, created specifically for Customer or at the request of Customer for the Product, to any products and services for GeniusCo Support Services, LLC’s other clients in the same industry as Customer.

 

(ii) As between Customer and GeniusCo Support Services, LLC, Customer shall own all right, title and interest in an to any Customer Content.  During the Term, Customer grants to GeniusCo Support Services, LLC a limited, non-exclusive license to use the Customer Content solely for all reasonable and necessary purposes contemplated by this Agreement and for GeniusCo Support Services, LLC to perform the Services as contemplated hereunder.  This Agreement does not transfer or convey to GeniusCo Support Services, LLC or any third party any right, title or interest in or to the Customer Content or any associated intellectual property rights, but only a limited right of use revocable in accordance with this Agreement.

 

 

  1. Restrictions.  GeniusCo Support Services, LLC is prohibited from distributing, transferring possession of, or otherwise making available the Product to any person other than Key Person under the terms of this Agreement and from reproducing and installing the Product for use on any

web site or system other than the web site and system designated in Section 3.1(c) of this Agreement.  GENIUSCO SUPPORT SERVICES, LLC is prohibited from reproducing, distributing, or otherwise transferring possession of copies of the Product or updates and from using or installing copies of the Product or updates on any computer other than the single-processing or multi-processing micro computing unit of the Local Network System which supports the Customer web site.  Violation of any provision in this Subsection shall be the basis for termination of this Agreement.

 

  1. Instruments.  To protect GeniusCo Support Services, LLC’s rights in the Product, Customer, as a licensee, shall, at the reasonable request of GeniusCo Support Services, LLC, promptly execute and assign any and all applications, including, but not limited to, copyright applications, any and all assignments, and any other instruments which GeniusCo Support Services, LLC deems necessary to protect or maintain GeniusCo Support Services, LLC’s rights in the Product.  Customer hereby irrevocably appoints GeniusCo Support Services, LLC as attorney-in-fact for Customer with full power and authority to execute and deliver in the name of Customer any such instrument or instruments.

 

3.6               Confidentiality.  Customer represents and GeniusCo Support Services, LLC hereby acknowledges that the object code constituting the Product and updates of the Product which are embodied on the magnetic storage media contain confidential and trade secret material which is not readily susceptible to reverse compilation or reverse assembly.  GeniusCo Support Services, LLC shall not attempt to decompile or disassemble the object code of the Product or updates thereof without verbal or written consent from Customer.  GeniusCo Support Services, LLC further agrees that it will use its best efforts to prevent decompilation and disassembly of the object code of the Product and updates thereof by any person or entity by securing and protecting each copy of the Product or update in a manner consistent with the maintenance of Customer’s rights  and by taking appropriate action by instruction or agreement.  Violation of any provision in this Section shall be the basis for termination of this Agreement .

 

3.7               Technical Support.  Unless refused by the Customer in writing, GeniusCo Support Services, LLC shall provide Customer with support of a technical nature with respect to all aspects of the Product and updates to the Product, including their installation and use as set forth in the Addenda hereto or specifically referenced to this Master Agreement.  All requests for technical support must be made by Customer’s Key Person.  For purposes of this Agreement, Customer designates the following person to be its Key Person: Richard A Kirk . Customer’s Key Person can be reached at the following telephone number during regular business hours: (678)624-1352.  In order to change the identity of its Key Person, a senior executive officer of Customer ranking higher than the Key Person must give written notice to GeniusCo Support Services, LLC in accordance with Section 12.1.

 

 

3.8              User Manuals.

 

  1. Access to Manuals.  Customer acknowledges that the User’s Guide is an integral part of the software which makes up the Product and is necessary for the proper use and application of the Product and updates to the Product.  Customer agrees to insure that current User’s Guides shall be provided for use by authorized Customer personnel making changes to Customer Content.

 

  1. No Right to Copy or Distribute User’s Guide.  GENIUSCO SUPPORT SERVICES, LLC does not retain or seek any right to distribute the User’s Guide for the Product other than to the key persons listed in this agreement and persons designated to complete the work in this agreement or any attached Addenda.  GeniusCo Support Services, LLC acknowledges and agrees to use its best efforts to advise its personnel that any duplication of the User’s Guide is unauthorized by this Agreement, is prohibited by law, and constitutes an infringement of Customer’s copyright.  Violation of any provision in this Section shall be the basis for termination of this Agreement.

 

ARTICLE 4

 

Publicity; Trademarks

 

With prior consent, which consent shall not be unreasonably withheld or delayed, either party shall be permitted to identify the other party as a customer or service provider, as is respectively applicable, to use the other party’s name in connection with the proposals to prospective customers, to hyperlink from one party’s web site, and to otherwise refer to the other party in print or electronic form for marketing or reference purposes.  In addition to the rights granted in this Article 4, each party may display or refer to the other party’s proprietary indicia, trademarks, service marks, trade names, logos, symbols and/or brand names (collectively “Marks”) upon the advance written approval of that party, which approval shall not be unreasonably withheld.   Neither party may remove, destroy or alter the other party’s Marks.  Each party agrees that it shall not challenge or assist others to challenge the rights of the other party or its suppliers or licensors in the Marks or the registration of the Marks, or attempt to register any trademarks, trade names or other proprietary indicia confusingly similar to the Marks.  All use of a party’s Marks shall be subject to such party’s logo and trademark usage guide, as provided to the other party and as the same may be updated from time to time.  Neither party grants any rights in the Marks or in any other trademark, trade name, service mark, business name or goodwill of the other except as expressly permitted hereunder or by separate written agreement of the parties.

 

ARTICLE 5

 

Fees, Pricing and Payment Terms; Taxes

 

 

5.1              Fees.  GeniusCo Support Services, LLC’s current fees for the Services (including license fees, installation charges, service usage fees and other fees) are set forth in the applicable Addenda hereto.  If the initial Term for particular Services as set forth in the Work Order(s) is one (1) year or greater, then GeniusCo Support Services, LLC reserves the right to amend the fees payable for the Services provided under such Addenda at any time during the Term upon sixty (60) days prior notice to the Customer; provided that if GeniusCo Support Services, LLC increases the fees, Customer shall be entitled to terminate this Agreement at the end of such sixty (60) day notice period by thirty (30) days prior written notice of termination to GeniusCo Support Services, LLC.  All prices are in United States dollars and do not include sales, use, value-added or import taxes, customs duties or similar taxes that may be assessed by any jurisdiction.

 

5.2              Payment Terms.  Amounts due hereunder are payable upon receipt of invoice.  Customer agrees to pay a late charge of two percent (2%) per month or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts not paid within thirty (30) days of receipt of invoice.  All taxes, duties, fees and other governmental charges of any kind (including sales and use taxes, but excluding taxes based on the gross revenues or net income of GeniusCo Support Services, LLC) which are imposed by or under the authority of any government or any political subdivision thereof on the fees for any of the Services provided by GeniusCo Support Services, LLC under this Agreement shall be borne by Customer and shall not be considered a part of, a deduction from or an offset against such fees.

 

5.3              Self-Help by GeniusCo Support Services, LLC.  If any payments, as set forth in the applicable Addendum, are not received within fifteen (15) days of the due date indicated, GeniusCo Support Services, LLC may initiate the remedy of electronic self-help by providing written notice to Key Person of the breach and GeniusCo Support Services, LLC’s intent to exercise the remedy of electronic self-help.  Customer shall have an additional fifteen (15) calendar days after receipt of notice to cure the breach and make the payment due to GeniusCo Support Services, LLC.  In the event nonpayment is not cured during said fifteen (15) day period, GeniusCo Support Services, LLC may suspend Services and the use of the Product from the applicable until all payments are made and the account balance due is current.

 

 

ARTICLE 6

 

Confidential Information

 

Any information that the receiving party knows or has reason to know (either because such information is marked or otherwise identified by the disclosing party orally, electronically or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is confidential information of the other party and shall remain the sole property of the disclosing party.  Each party agrees that it shall not disclose, use, modify, copy, reproduce or otherwise divulge such confidential information other than to fulfill its obligations under this Agreement.  The prohibitions contained in this Article 6 shall not apply to information (a) already lawfully known to or independently developed by the receiving party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party.  Neither party shall disclose to third parties, other than its agents and representatives on a need-to-know basis, the terms of this Agreement or any Addenda hereto without the prior written consent of the other party, except either party shall be entitled to disclose (i) such terms to the extent required by law; and (ii) the existence of this Agreement.

 

ARTICLE 7

 

Term and Termination

 

7.1              Effective Date.  This Agreement shall become effective with respect to each Addendum attached hereto or specifically referenced to this Master Agreement as of the Effective Date as specified in each such Addendum, or upon acceptance by GeniusCo Support Services, LLC if no Effective Date is specified, and shall remain in full force and effect for the Initial Term as specified in such Addendum.  If no term is specified in the Addendum, the Initial Term shall be one (1) year.

 

7.2               Automatic Renewal.  With respect to each Addendum, if the specified Initial Term is one (1) year or greater, then, upon the expiration of the Initial Term, this Agreement, with respect to the specified Services in such Addendum, shall automatically renew for one (1) or more additional terms of one (1) year (each, a “Renewal Term”) unless and until either party notifies the other party of its intent to terminate the Services set forth in the specific Addendum at least sixty (60) days prior to the expiration of the Initial Term or a Renewal Term.  In the event either party terminates this Agreement as aforesaid, the effective date of termination shall be the last day of the term then current.

 

7.3              Definition of “Term”.  With respect to each Addendum, the Initial Term or a Renewal Term, together with any and all Renewal Terms, is sometimes collectively referred to as the “Term.”

 

7.4              Default Termination.  Except as provided in Section 5.3, either party may terminate this Agreement in the event that the other party materially defaults in performing any obligation under this Agreement and such default continues unremedied for a period of thirty (30) days following written notice of default, provided, however, (a) that in the event this Agreement is terminated by Customer due to GeniusCo Support Services, LLC’s breach of its obligations and failure to cure with respect to network availability and Product operations, Customer’s sole remedy shall be its election to terminate the Agreement without further liability to either party (except for Customer’s obligation to pay all accrued and unpaid fees outstanding at the date of termination); and (b) GeniusCo Support Services, LLC shall not be held liable for the delay or nonperformance of third party providers, such as vendors of connectivity, hardware, internet access, facilities, etc.

 

7.5              Other Termination.  This Agreement shall terminate, effective upon delivery of written notice by either party to the other party: (i) upon institution of insolvency, receivership or bankruptcy proceedings (which shall not include an involuntary bankruptcy proceeding which is dismissed within thirty (30) days) or any other proceedings for the settlement of debts of the other party; (ii) upon the making of an assignment for the benefit of creditors by the other party; or (iii) upon the dissolution or liquidation of the other party.  Except for Services relating to an Event, either party may terminate the Services set forth in the specific Addendum during the first fifteen (15) days of the Initial Term as set forth in such Addendum without liability upon written notice to the other party; provided that if Customer terminates such Services during such period, Customer agrees to pay GeniusCo Support Services, LLC all unpaid fees accrued or incurred as of the termination date, including without limitation, any installation, set-up and training fees.

 

 

7.6              Cancellation of Services before Installation.  Except for Services relating to an Event, and provided that customer has made the initial payment to GeniusCo Support Services, LLC (normally due in ten (10) days of execution of the Master Agreement), Customer may cancel the Services set forth in the specific Addendum at any time after the first fifteen (15) days of the Initial Term as set forth in such Addendum, but before the installation and implementation of the Product, for convenience upon written notice to GeniusCo Support Services, LLC, in which case Customer agrees to pay to GeniusCo Support Services, LLC: (a) all unpaid Service fees as set forth in the specific Addendum accrued or incurred as of such cancellation date, including without limitation any production, set-up and training fees, plus (b) an early cancellation fee equal to the minimum usage fees (as set forth in such Addendum) that will become due during the cancelled portion of such Initial Term or Renewal Term, as applicable.

 

ARTICLE 8

 

Dispute Resolution

 

8.1              Informal Proceeding.  In the case of any disputes under this Agreement, the parties shall first attempt in good faith and in a reasonably brief period of time to resolve their dispute informally, and by means of prompt commercial mediation, without the necessity of a formal proceeding.

 

8.2               Arbitration.  Any controversy or dispute arising out of or relating to this Agreement, or the breach thereof, which cannot otherwise be resolved as provided above shall be resolved by arbitration conducted in accordance with the commercial arbitration rules of the American Arbitration Association (“CUSTOMER”) and judgment upon the award rendered by the arbitration tribunal may be entered in any court having jurisdiction thereof.

 

8.3              Tribunal.  The arbitration tribunal shall consist of a single arbitrator mutually agreed upon by the parties, or in the absence of such agreement within thirty (30) calendar days of the first referral of the dispute to the CUSTOMER, designated by the CUSTOMER.  The arbitration shall be conducted in the English language and the place of arbitration shall be Gwinnett County, Georgia, U.S.A., unless the parties shall have agreed to another location within fifteen (15) calendar days from the first referral of the dispute to the CUSTOMER.

 

8.4              Final and Binding.  The arbitration award shall be final and binding.

 

8.5              Waiver of Appeal/Judicial Compulsion.  The parties waive any right to the appeal the arbitration award, to the extent a right to appeal may be lawfully waived.  Each party retains the right to seek judicial assistance: (i) to compel arbitration; (ii) to obtain interim measures of protection prior to or pending arbitration; (iii) to seek injunctive relief in the courts of any jurisdiction as may be necessary and appropriate to protect the unauthorized disclosure of its proprietary or confidential information; and (iv) to enforce any decision of the arbitrator, including the final award.

 

 

8.6              Proceedings Confidential.  The arbitration proceedings contemplated by this Section shall be as confidential and private as permitted by law.  To that end, the parties shall not disclose the existence, content or results of any proceedings conducted in accordance with this Section, and deem that all materials submitted in connection with such proceedings are for the purposes of settlement and compromise; provided, however, that this confidentiality provision shall not prevent a petition to vacate or enforce an arbitration award, and shall not bar disclosures required by law.

 

ARTICLE 9

 

Indemnification

 

9.1              GeniusCo Support Services, LLC’s Indemnification of Customer.  GeniusCo Support Services, LLC shall defend, indemnify and hold harmless Customer from and against any suit, proceeding, assertion, damages, cost, liability, and expense (including court costs and reasonable attorneys’ fees) incurred as a result of claims by a third party against Customer and its affiliates, licensors, suppliers, subcontractors, officers, directors, employees and agents arising from or connected with a claim that any of the Product infringes any valid patent, copyright, trade secret, or other intellectual property right of said third party under the laws of the United States.  If a claim of infringement under this Article 9 occurs, or if GeniusCo Support Services, LLC determines that a claim is likely to occur, GeniusCo Support Services, LLC shall have the right, in its sole discretion, to either: (i) procure for Customer the right or license to continue to use the Product free of the infringement claim; or (ii) replace or modify the Product to make it non-infringing provided that the replacement Product substantially conforms to GeniusCo Support Services, LLC’s then-current specification for the Product.  If these remedies are not reasonably available to GeniusCo Support Services, LLC, GeniusCo Support Services, LLC may, at its option, terminate this Agreement and return any fees paid by Customer in advance.  Despite the provisions of this Article 9, GeniusCo Support Services, LLC shall have no obligation with respect to any claim of infringement that is based upon or arises out of: (i) any modification to the Product, Documentation or Services if the modification was not made by GeniusCo Support Services, LLC; or (ii) the use or combination of the Product, Documentation or Services with any hardware, Product, products, data, or other materials not specified or provided by GeniusCo Support Services, LLC; or (iii) Customer’s use of the Services other than in accordance with the Documentation or GeniusCo Support Services, LLC’s written directions or policies.

 

9.2              Customer’s Indemnification of GeniusCo Support Services, LLC.  Customer acknowledges that by entering into and performing its obligations under this Agreement, GeniusCo Support Services, LLC does not assume and should not be exposed to the business and operational risks associated with Customer’s business, or any aspects of the operation or contents of Customer’s web site(s).  Accordingly, Customer shall defend, indemnify, and hold harmless GeniusCo Support Services, LLC from and against any suit, proceedings, assertion, damages, cost, liability, and expenses (including court costs, expert witness fees, and reasonable attorneys’ fees) incurred as a result of claims by a third party against GeniusCo Support Services, LLC and its affiliates, licensors, suppliers, subcontractors, officers, directors, employees and agents arising from or connected with any Customer Content or Customer’s web site(s) (including without limitation any activities or aspects thereof or commerce as conducted thereon), Customer’s misuse of the Services, unauthorized modification of the Product, or unauthorized combination of the Product with any hardware, Product, products, data or other materials not specified or provided by GeniusCo Support Services, LLC.

 

 

9.3              Notice Required.  The indemnified party shall (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) have the right, at is own expense, to employ separate counsel and participate in the defense thereof.  In no event may either party enter into any third-party agreements which would in any manner whatsoever affect the rights of, or bind the other party in any manner to such third party, without the prior written consent of the other party.

 

9.4              Limitation of Liability.  THE PROVISIONS OF THIS ARTICLE 9 STATE THE SOLE AND EXCLUSIVE OBLIGATIONS AND LIMITATIONS OF LIABILITY OF EITHER PARTY FOR ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT TO THIRD PARTIES AND ARE IN LIEU OF ANY WARRANTIES OF NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED.

 

9.5              Limitations on Hardware Warranty.  GeniusCo Support Services, LLC does not warrant the products of any third party manufacturer or licensor which may be supplied with the System and Customer agrees to look only to such third party for any warranty claim relating thereto.  EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, ACCURACY, FITNESS FOR PARTICULAR PURPOSES AND NONINFRINGEMENT.

 

THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE INFORMATION OR AGAINST INFRINGEMENT.

 

THERE IS NO WARRANTY THAT THIS INFORMATION, OR OUR EFFORTS, OR THE SYSTEM WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS.

 

EXCEPT FOR EXPRESS WARRANTIES STATED IN THIS CONTRACT, IF ANY, THIS INFORMATION/COMPUTER PROGRAM IS PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER.

 

ARTICLE 10

 

Limitation of Liability and Damages

 

10.1              Limitation of Liability.  EXCEPT FOR EACH PARTY’S LIABILITY ARISING OUT OF ITS INDEMNIFICATION OBLIGATIONS, LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE , SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY THE CUSTOMER TO GeniusCo Support Services, LLC UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE CLAIM.

 

 

10.2              Damages.  IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT OR THE USE OF THE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY.  THIS LIMITATION WILL APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

 

ARTICLE 11

 

Non-Solicitation

 

During and for a period of two (2) years after the expiration or termination of the within Agreement (the “Period of Restriction”), neither party will request or otherwise attempt to induce or influence, directly or indirectly, any present customer, distributor or supplier, or prospective customer, distributor or supplier, of the other Party, or other persons sharing a business relationship with the other party to cancel, to limit or postpone their business with the other party, or otherwise take action which might be to the material disadvantage of the other party. However, this provision shall not prevent or preclude either party from marketing their products and services to other potential clients/customers and such marketing efforts shall not constitute a breach of this provision so long as neither party attempts to influence potential customers to prevent those potential customers from doing business with the other party.

 

During the Period of Restriction, Customer will not, directly or indirectly, without the express written consent of GeniusCo Support Services, LLC, employ, influence or attempt to employ, directly or indirectly, any employee or subcontractors of GeniusCo Support Services, LLC.

 

ARTICLE 12

 

Miscellaneous

 

12.1               Notices.  All communications provided for hereunder shall be in writing and shall be deemed to be given when delivered in person or sent by Federal Express or UPS overnight delivery, or certified U.S. mail, postage prepaid and,

 

(a)               If to GeniusCo Support Services, LLC, addressed to:

 

Mr. Faruq Hunter, President

GENIUSCO SUPPORT SERVICES, LLCnteractive, Inc.

5855-B Live Oak Pkwy

Norcross, Georgia 30093 USA

Tel.: (404) 635-1886

Fax: (770) 734-9243

Email: faruqh@mii-i.com

 

(2)              If to Customer, addressed to the address listed on the Master Service Agreement cover page.

 

 

 

or to such other place or places or to such other person or persons as shall be designated in writing by the parties hereto.

 

12.2               No Assignment.  Customer may not, without the prior written consent of GeniusCo Support Services, LLC, assign this Agreement or the license rights granted herein, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a material default of this Agreement and shall be void.  This Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.

 

12.3              Choice of Law.  This Agreement shall be interpreted according to the laws of the State of Georgia without regard to or application of choice-of-law rules or principles.

 

12.4               Entire Agreement.  This Agreement (including all items described in Section 1.2 hereof) shall constitute the entire agreement between GeniusCo Support Services, LLC and Customer with respect to the subject matter hereof and all prior agreements, representations, and statements with respect to such subject matter are superseded hereby, including without limitation any non-disclosure agreement previously executed between the parties.

 

12.5              Control.  The terms of the Addenda or other schedules or exhibits attached thereto shall control in the event of any inconsistency with the provisions of the Agreement.

 

12.6              Written Amendment.  This Agreement may be changed only by written agreement signed by both GeniusCo Support Services, LLC and Customer.

 

12.7              No Waiver.  No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches and the waiver of any breach shall not act as a waiver of subsequent breaches.

 

12.8               Severability.  In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect.  The parties further agree that in the event  such provision is an essential part of this Agreement, they will begin negotiations for a replacement provision.

 

12.9               Force Majeure/Performance Extension.  If either party is prevented from performing any of its obligations under this Agreement due to any cause beyond the party’s reasonable control, including, without limitation, an act of God, fire, flood, explosion, war, strike, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers (a “force majeure event”) the time for the party’s performance will be extended for the period of the delay or inability to perform due to such occurrence; provided, however, that Customer will not be excused from the payment of any sums of money owed by Customer to GeniusCo Support Services, LLC for Services provided prior to the force majeure event; and provided further, however, that if a party suffering a force majeure event is unable to cure that event within thirty (30) days, the other party may terminate this Agreement, provided that Customer must pay GeniusCo Support Services, LLC for all fees earned through the date of the force majeure event.

 

12.10               Relationship of Parties.  Neither this Master Agreement nor the Addenda,  and other schedules and exhibits thereto, may be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties.  Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

 

12.11              Plain Meeting.  This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting this Agreement in construing or interpreting the provisions hereof.

 

12.12              Term Binding Successors.  The terms of this Agreement shall be binding upon and shall inure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs and assigns.

 

12.13              Applicable Law.  Each party shall comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.

 

12.14              Delivery, Title, Risk of Loss, Insurance.  Title to the Hardware shall pass directly to Customer from the third party vendor, all risk of loss or damage shall remain with Customer and Customer shall procure and maintain adequate insurance for the full replacement value of the Hardware against damage or loss by fire or other casualty.

 

12.15  No Termination.  The provisions of Articles 2, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.8, 4, 6, 8, 9, 10, 11 and 12 shall survive termination of the Services set forth in this Agreement.  All other rights and obligations of the parties shall cease upon termination of this Agreement.  The term of any license granted hereunder shall expire upon expiration or termination of this Agreement.