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Computer Guidance Corporation

The Experts in Developing and Delivering Cloud Construction ERP, Construction Accounting and Project Management, Software Solutions

 

Computer Guidance Hosted eCMS Managed Services Agreement

Computer Guidance Hosted eCMS Managed Services Agreement

This Hosted eCMS Managed Services Agreement is entered into by and between Computer Guidance Corporation (“CGC”), an Arizona corporation, and CUSTOMER, with reference to the facts set forth in the Recitals below and effective as of the date of the execution of related agreements and/or exhibits by CUSTOMER and CGC (“Effective Date”).

Recitals:

  1. CGC develops and markets financial and project management software applications and services for the commercial construction industry.
  2. Pursuant to the initial and any subsequent Amendments between the parties executed as of the Effective Date, CGC is providing the Service for Customer.
  3. As part of this service, CGC will host and maintain the Service on servers owned and/or operated by CGC, and CGC desires to provide such hosting and maintenance services, on the terms and conditions contained herein.

I. Definitions.

  1. “AMENDMENT” means the documentation, including telephonic and online transactions, by which CUSTOMER orders subscriptions to the Service, as may be agreed to by the parties from time to time.
  2. “CUSTOMER” is the person, company or entity that subscribed to the CGC Service through completing an Amendment and for whom the Service is used under this Agreement. CUSTOMER must accept and agree to this Agreement before using the Service.
  3. “CUSTOMER DATA” means all information entered into the Hosting System by CUSTOMER in the course of its authorized use of the Hosting System and stored on the Host Server for access by the Hosting System and retrieval by CUSTOMER.
  4. “DEPLOYMENT, HOSTING AND MAINTENANCE SPECIFICATIONS” shall mean the specifications for the Services attached to this Agreement as Exhibit A, as it may be amended from time to time by mutual agreement of the parties, which agreement shall not be unreasonably withheld by either party.
  5. “eCMS Managed Services” shall mean the financial and project management applications provided by CGC to the CUSTOMER in accordance with the SERVICE “HOST SERVER” means the server provided by CGC or its agent through which CUSTOMER accesses the Hosting System, identified by a URL and an account and passwords to be established by CUSTOMER.
  6. “HOSTING SYSTEM” means the CGC eCMS computer system owned or provided by CGC, the Product for which CUSTOMER has a subscription pursuant to this Agreement, related updates, upgrades and online documentation.
  7. “INTELLECTUAL PROPERTY RIGHTS” means inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
  8. “INTERNET” means any systems for distributing digital electronic content and information to end users via transmission, broadcast, public display, or other forms of delivery, whether direct or indirect, whether over telephone lines, cable systems, optical fiber connections, cellular telephones, satellites, wireless broadcast, or other mode of transmission now known or subsequently developed.
  9. “PRODUCT” shall mean that certain financial and project management software developed by CGC.
  10. “PROHIBITED CONTENT” means that the CUSTOMER is prohibited from using the Service to store prohibited content or engage in prohibited activities. Such activities shall include, but not be limited to pornographic material; material that exploits children; illegal goods and drugs; material that is grossly offensive including blatant expressions of bigotry, prejudice or racism; and introducing viruses, worms, harmful code and/or Trojan horses on the Internet.
  11. “SECURITY MEASURES” shall mean those procedures and precautions for maintaining the security of the Product and Usage Data required under this Agreement.
  12. “SERVICES” shall mean the deployment, hosting and maintenance of the Product as described under this Agreement.
  13. “TERM” shall mean the Initial Term and any Renewal Terms.
  14. “PROFESSIONAL SERVICES” shall mean any training, consulting and related services provided by CGC employees.

II. Use of Hosting System.

  1. License Subscription Rights Granted. CGC hereby grants CUSTOMER a nonexclusive, non-transferable, worldwide right to use the Hosting System, subject to the terms and conditions of the Agreement for the creation, management, delivery, and tracking of CUSTOMER content for internal use. CUSTOMER shall have no right to (i) act as a reseller or distributor of the Hosting System or Service, or as a service bureau for the Hosting System or Service; (ii) use the Hosting System to create, manage or track any third party content on behalf of third parties; or (iii) use the Hosting System in any other way that is in competition with CGC. All rights not expressly granted to CUSTOMER are reserved by CGC. CUSTOMER agrees not to cause or permit the reverse engineering, disassembly or decompilation of the Hosting System. CGC retains all title, copyright, Intellectual Property Rights and other proprietary rights in the Hosting System. CUSTOMER does not acquire any rights, express or implied, in the Hosting System, other than those specified in the Agreement. CUSTOMER agrees that it will not use the Hosting System for Prohibited Content or Commerce; copyrighted materials to which CUSTOMER does not have appropriate rights; materials offensive to community standards; or other materials prohibited by applicable international, federal, state, or local laws and regulations. CUSTOMER agrees to fully comply with all federal, state, and local privacy laws in connection with use of the Hosting System and Service.
  2. INTELLECTUAL PROPERTY OWNERSHIP. CGC shall own all right, title and interest, including all related Intellectual Property Rights, in and to the CGC technology, the content (excluding Customer Data) and the Service. In the event CUSTOMER provides any suggestions, ideas, enhancement requests, or feedback (“Feedback”) to CGC with respect to the Service, CUSTOMER agrees that CGC may freely use, disclose, reproduce, license, distribute and otherwise commercialize the Feedback in any CGC product or service. This Agreement is not a sale and does not convey any rights of ownership in or related to the Service, the CGC technology or the Intellectual Property Rights owned by CGC. The CGC name, the CGC logo, and the product names including CGC eCMS associated with the Service are trademarks of CGC and no right or license is granted to use them.

III. Services

  1. Hosting Services. CGC will provide Customer with access to the online Hosting System at the usage level selected in Exhibit A and will provide for the storage and retrieval of Customer Data in connection with use of the Hosting System. CUSTOMER is responsible for obtaining access to the Internet using software and hardware that meet CGC’s minimum requirements, including security requirements. CUSTOMER agrees that the purchase hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by CGC regarding future functionality or features.
  2. ON-DEMAND APPLICATION LICENSES. Unless otherwise specified in the Exhibit A, (i) Services are purchased as User licenses and may be accessed by no more than the specified number of Users, (ii) additional User licenses may be added during the term at the current pricing for licenses, prorated for the remainder of the term in effect at the time the additional User licenses are added, and (iii) the added User licenses shall terminate on the same date as the pre-existing licenses. Named licenses are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
  3. OWNERSHIP OF DATA. CUSTOMER shall retain ownership of all Customer Data stored or retrieved in connection with the use of the Hosting System, which data shall be subject to the confidentiality provisions set forth below. CUSTOMER agrees that back-up or archival of Customer Data is not an infringement of any Intellectual Property Rights of CUSTOMER or any third party.
IV. Professional Services
  1. PROFESSIONAL SERVICES. CGC will provide training, consulting and related services at CGC’s current hourly rate. Professional service hours will be billed as the hours are consumed. Consumption includes all hours spent at CUSTOMER’s place of business, as well as time spent off-site on behalf of CUSTOMER conducting research, developing written correspondence, configuring software, converting data, and conducting online training or telephone conferences with CUSTOMER’s personnel. The minimum increment for hours consumed is ¼ hour. Any estimates of professional service hours provided to CUSTOMER should be interpreted as the minimum number hours the CUSTOMER will require. Estimated hours is not intended to represent all of the hours the CUSTOMER will require. Additionally, if CUSTOMER experiences employee turnover or other internal interruptions then CUSTOMER may require additional hours.
  2. TRAVEL EXPENSES. CUSTOMER agrees to pay all reasonable expenses as required to send CGC personnel to CUSTOMER’s site. These expenses include round trip coach airfare, hotel costs, car rental, meals, and other reasonable miscellaneous expenses. A travel-time charge of up to 4 hours per day of travel, and calculated based on the time it takes to travel to and from the consultant’s home city to CUSTOMER’s place of business, will be charged for each trip to CUSTOMER’s location. CUSTOMER may, at its discretion, and with CGC approval, arrange and pay directly for airfare, lodging, car rental and/or meals. All expenses incurred by CGC will be billed to CUSTOMER upon the conclusion of each trip with supporting receipts.
  3. CANCELLATION FEES. CUSTOMER is responsible for all change fees and cancellation charges incurred as a result of CUSTOMER’s postponement or cancellation of services. Additionally, if CUSTOMER cancels services and does not provide at least ten (10) business days’ notice, CGC may charge CUSTOMER a cancellation penalty equal to 50% of the price of cancelled services.

V. Responsibilities.

  1. CGC RESPONSIBILITIES. CGC shall: (i) provide to CUSTOMER basic support for the Hosting System at no additional charge, (ii) use commercially reasonable efforts to make the Hosting System available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which CGC shall give at least 8 hours notice and which CGC shall schedule to the extent practicable during the weekend hours, or (b) any unavailability caused by circumstances beyond CGC’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving CGC employees), or Internet service provider failures or delays, and (iii) provide the Hosting System only in accordance with applicable laws and government regulations.
  2. CUSTOMER RESPONSIBILITIES. CUSTOMER shall (i) be responsible for Users’ compliance with the Agreement, (ii) be solely responsible for the accuracy, integrity and legality of CUSTOMER’S data and of the means by which CUSTOMER acquired the data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify CGC promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. CUSTOMER agrees that it will not store data on the Host Server that is subject to the rights of any third parties without first obtaining all required authorizations and rights in writing from such third parties.

VI. Term and Termination.

  1. TERM. The Agreement herein shall continue for three years from the Effective Date (the “Initial Term”), and shall automatically renew for additional one-year terms (a “Renewal Term”) unless either party provides written notice to the other not less than 30 days prior to the end of the Initial Term or any subsequent Renewal Term of its intent not to renew this Agreement (the Initial Term and any Renewal Terms, collectively, the “Term”). The parties agree that this auto-renewal provision is a negotiated provision of this Agreement, constitutes part of the consideration of the Agreement, and is reasonable. Upon termination of this Agreement CGC shall have no obligation to provide any further Services to CUSTOMER.
  2. TERMINATION. This Agreement and/or any License and Services granted hereunder may be terminated (a) except as otherwise provided in Section 6.2(b), by either party upon material breach of the Agreement by the other party and that party’s failure to cure such breach within 30 days of receipt of written notice, or (b) by CGC upon CUSTOMER’S failure to make any payment when due hereunder and CUSTOMER’S continuing failure to make such payment within 10 days of receipt of written notice from CGC. In addition to termination, each party also preserves all of its right and remedies at law and in equity with respect to any breach. Further, if this Agreement is terminated by reason of CUSTOMER’S material breach or failure to make any payment in the manner required hereunder, all payments that CUSTOMER is obligated to make to CGC at any time pursuant to this Agreement shall become immediately due and payable to CGC.

VII. Fees and Payment for Services.

  1. CUSTOMER hereby agrees to pay the fees specified in Exhibit A for use of the Hosting System for the Term of the Agreement. Except as otherwise noted, (i) fees are quoted and payable in United States dollars, (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of User Licenses under the Agreement cannot be decreased during the Term. At the end of each year of the Term, CUSTOMER agrees that the fees will increase for the upcoming year of the Term by an amount equal to any increase in the Consumer Price Index-United States City Average-All Urban Consumers-All items published by the U.S. Dept. of Labor Bureau of Labor Statistics (the CPI) as of such date over the CPI in effect one year prior to such date. If the CPI is discontinued or revised during the term of this Agreement, such other government index or computation with which it is replaced shall be utilized to obtain substantially the same results as would be obtained if the index had not been so discontinued or revised.
  2. CGC will invoice CUSTOMER according to terms set forth in Exhibit A. All invoices will be due on or before the invoice date and subject to accrue a late fee of 1.5% of the outstanding balance per month, or the maximum rate permitted by law.SUSPENSION OF SERVICES. If any amount owing by CUSTOMER under this Agreement is thirty (30) or more days overdue, CGC may, without limiting CGC’s rights and remedies, suspend Hosting Services to CUSTOMER until such amounts are paid in full.ADDITIONAL CHARGES. CUSTOMER agrees to pay for all training and consulting services and approved expenses, and such payments are due upon receipt of the invoice.TAXES. Unless otherwise stated, CGC fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). CUSTOMER is responsible for paying all Taxes associated with your purchase hereunder. If CGC has the legal obligation to pay or collect Taxes for which CUSTOMER is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by CUSTOMER, unless you provide CGC with a valid tax exemption certificate authorized by the appropriate taxing authority. CGC shall be solely responsible for taxes assessable against it based on CGC’s income, property and employees.

VIII. Confidentiality.

  1. CONFIDENTIAL INFORMATION shall mean all confidential information disclosed by a party (“Disclosing Party”), whether orally or in writing, that is designated as confidential or that reasonable should be understood to be confidential given the nature of the information and the circumstances of disclosure. CUSTOMER’S confidential data shall include your Data. CGC’s confidential Information shall include the Services; and Confidential Information of each party shall include the terms of this Agreement and all Amendments and accompanying Exhibits, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than CUSTOMER’S Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Part y prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
  2. PROTECTION OF CONFIDENTIAL INFORMATION. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
  3. PROTECTION OF YOUR DATA. Without limiting the above, CGC shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of CUSTOMER’S Data. CGC shall not (i) modify CUSTOMER’S data without its prior written consent, (ii) disclose CUSTOMER’S Data except as compelled by law in accordance with Section 8.4 (Compelled Disclosure) or as expressly permitted in writing by CUSTOMER, or (iii) access CUSTOMER’S Data except to provide the Services or prevent or address service or technical problems, or at CUSTOMER’S request in connection with customer support matters.
  4. COMPELLED DISCLOSURE. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

IX. Indemnity, Warranties, Remedies.

  1. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT OR INFORMATION. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CGC DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE HOST SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT AND INFORMATION IS PROVIDED STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
  2. INTERNET DELAYS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CGC IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
  3. REPRESENTATIONS AND WARRANTIES. CGC REPRSENTS AND WARRANTS THAT: (i) HOSTING SYSTEM AND SERVICES WILL PERFORM IN CONFORMITY WITH ITS DOCUMENTATION, MANUALS, AND SPECIFICATIONS, (ii) TO ITS KNOWLEDGE, THERE ARE NOT SUITS OR PROCEEDINGS PENDING OR THREATENED WHICH ALLEGE ANY INFRINGEMENT OF ANY THRID PARTY INTECLLECTUAL PROPERTY RIGHTS, AND (iii) IT HAS THE VALID RIGHT TO GRANT TO CUSTOMER ALL RIGHTS TO THE HOSTING SYSTEM AND SERVICES AS GRANTED HEREIN.
  4. LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY UNDER SECTION 9.5 (CGC INDEMNITY) AND SECTION 9.6 (INFRINGEMENT INDEMNITY), IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. No action, regardless of form, may be brought by CUSTOMER more than six months after the cause of action arises.
  5. CGC INDEMNITY. CGC shall indemnify and defend CUSTOMER against any claim, demand, suit and costs, including but not limited to reasonable attorney’s fees, and losses arising out of any action by a third party against CUSTOMER arising directly or indirectly out of or incidental to (i) the breach by CGC of any of its obligations or covenants hereunder; (ii) the content, disclosure and distribution of any CGC Data; or (iii) an alleged infringement of CGC Data on a third party’s intellectual property right(s).
  6. CUSTOMER INDEMNITY. CUSTOMER shall indemnify and defend CGC against any claim, demand, suit and costs, including but not limited to reasonable attorney’s fees, and losses arising out of any action by a third party against CGC arising directly or indirectly out of or incidental to (i) the breach by CUSTOMER of any of its obligations or covenants hereunder; (ii) the content, disclosure and distribution of any CUSTOMER Data; or (iii) an alleged infringement of CUSTOMER Data on a third party’s intellectual property right(s).
  7. EXCLUSIVE REMEDY. This section 9 (Indemnity, Warranties, Remedies) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.

X. General Terms.

  1. ASSIGNMENT. Neither party may assign any of its rights or obligation hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Agreement in its entirety (including all Amendments) without consent of the other party, to its Affiliate or in connection with merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
  2. RELATIONSHIP OF THE PARTIES. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the parties.
  3. NO THIRD-PARTY BENEFICIARIES. There are no third-party beneficiaries to this Agreement.
  4. WAIVER AND CUMULATIVE REMEDIES. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
  5. SEVERABILTY. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
  6. ATTORNEY FEES. The prevailing party under a dispute shall have the right to receive payment for reasonable attorney fees and other costs incurred to enforce or cure any material provision of this Agreement, including but not limited to breach of Section 7 (Fees and Payment for Services).
  7. ENTIRE AGREEMENT. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of the Agreement and any Exhibit or Addendum hereto, the terms of such Exhibit or Addendum shall prevail.
  8. GOVERNING LAW AND DISPUTE RESOLUTION. CUSTOMER agrees that any breach involving CGC’s Confidential Information or proprietary rights will result in irreparable and continuing damage to CGC, for which there will be no adequate remedy at law, and in the event of such a breach, CGC will be entitled to injunctive relief and/or a decree of specific performance, and such other relief as may be appropriate. Exclusive venue for any such action shall be in the state and federal courts located in Maricopa County, Arizona. Except as provided in the preceding two sentences, all claims, disputes, controversies, and other matters in question between the parties to the Agreement arising out of, or relating to, this Agreement, or to the breach thereof, including any claim in which either party is demanding monetary damages of any nature including negligence, strict liability or intentional acts or omissions by either party, and which cannot be resolved b y the parties, shall be settled by arbitration in accordance with the following Arbitration Procedure. Arbitration Procedure: Except as
    provided otherwise in this Section, the arbitration shall be administered in accordance with the commercial arbitration rules of the American Arbitration Association. There shall be one (1) neutral arbitrator. If the parties cannot agree on the arbitrator, then each party shall name, in writing one arbitrator, and a third arbitrator shall be chosen by the two arbitrators so selected. If the two arbitrators fail to select a third arbitrator or should either party fail to select an arbitrator, then that arbitrator shall be chosen by a Civil District Judge serving in Maricopa County, Arizona. In any case, all arbitrators must be attorneys with experience in contract law. Additionally, all arbitrators must sign an oath of neutrality prior to their assumption of duties as an arbitrator. The parties hereby agree that the arbitration proceeding shall be held in Phoenix, Arizona. The award of the arbitrators shall be final, and binding upon the parties, and judgment upon the award may be entered in any court havi ng jurisdiction thereof. This Agreement and performance hereunder will be construed according to the substantive laws of the State of Arizona, without regard to conflict of law principles. The U.S. Arbitration Act shall govern the interpretation and application of this Section.

XI. Non-Solicitation of Employees.

  1. CUSTOMER acknowledges and agrees that CGC personnel have been acquired and trained by CGC at considerable expense. CUSTOMER, therefore, agrees that if CUSTOMER, or any affiliate of CUSTOMER, (including any company that is under common ownership and/or control of CUSTOMER) should employ any CGC employee, or any employee of an affiliate of CGC (in any capacity, including any rendering of personal services as an employee, contractor, or agent),within one year after such employee’s leaving of CGC or CGC’s affiliates, then CUSTOMER agrees to pay CGC a placement fee of 100% of the former employee’s projected first year earning (including projected bonuses and commissions) from CUSTOMER. CUSTOMER acknowledges and agrees that CGC will not provide any support or services to or through this former employee for a period of 60 months from the date the former employee terminated from CGC or an affiliate of CGC. Additionally, CUSTOMER agrees to pay CGC the placement fee in one lump sum within 15 days of demand.

CUSTOMER AND CGC EACH ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND UNDERSTAND AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, CUSTOMER AND CGC AGREE THAT THIS AGREEMENT, INCLUDING ALL AMENDMENTS AND EXHIBITS, IS THE COMPLETE AND EXCLUSIVE AGREEMENT BETWEEN THE PARTIES WHICH SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.

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