15. Covenant Not to Hire Amnet Employees; Liquidated Damages
You agree that Amnet is in the business of providing technology services to its clients, and is not in the business of providing employees to clients. You agree that you will not hire or seek to hire Amnet employees as discussed in the remainder of this paragraph. If you hire any current or former Amnet employee within one year of that employee’s separation from us, you agree that Amnet will be damaged, but that the amount of the damage will be difficult to determine. Accordingly, you agree that for each of our employees you hire, you will pay us $75,000, not as a penalty, but as liquidated damages. You agree that $75,000 is a reasonable estimate of the cost to Amnet to replace and train an employee and the damage Amnet will suffer as the result of the loss of an employee. This paragraph will apply only to Amnet employees with whom you had telephone or in-person contact while Amnet is providing services to you. As used in this paragraph, the prohibition against hiring means directly or indirectly hiring as an employee or consultant, or engaging as an independent contractor, an Amnet employee.
16. Non-disclosure by Amnet
“Client Confidential Information” means your information relating to the research, development, products, methods of manufacture, trade secrets, business plans, customers, finances and personnel data of your business. Client Confidential Information does not include any information that (1) we knew before you disclosed it to us, (2) has become publicly known through no wrongful act by us, (3) we developed independently, as evidenced by appropriate documents, or (4) we are required to disclose by law. We agree not to disclose any Client Confidential Information and to take reasonable precautions to prevent its unauthorized disclosure, both during and after this Agreement. We agree to limit our internal distribution of Client Confidential Information to our employees, contractors, and agents who have a need to know. We agree not to use any Client Confidential Information for our own benefit or for the benefit of anyone other than you. We agree not to design or manufacture any products that incorporate any Client Confidential Information. We will advise those who have a need to know, of the binding provisions of this paragraph, and they will be bound. All Client Confidential Information remains your property,and you are not granting any license or other rights in the Client Confidential Information. Upon your written request, we agree to return to you all Client Confidential Information, including, but not limited to, all originals and copies of all computer programs, documentation, notes, plans, and drawings.
17. Non-disclosure by Client
Client understands that Amnet’s network setups, passwords, documentation and documents, configurations and methods are our trade secrets and are not to be disclosed directly or indirectly,through inspection of your network, documents or verbally with any company or individual that Amnet may consider a competitor solely at Amnet’s discretion. This proprietary information is crucial to Amnet’s competitive edge in the marketplace and we will be damaged if such information should be made known to any competitor and we will be entitled to monetary compensation for said damages. You will advise those of your agents and employees who have access to this information, of the binding provisions of this paragraph, and they will also be bound. If Client wishes to cancel our services to use a competitor we must be given 30 days written notice and access to the network to modify and remove any elements on the network or on client site that Amnet deems proprietary.
18. Limitation of Liability
WE MAKE NO WARRANTY OR REPRESENTATION,EXPRESSED OR IMPLIED, TO ANYONE AS TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY,CONDITION, CAPACITY,PERFORMANCE, FREEDOM FROM CLAIMS OF INFRINGEMENT,OR ANY OTHER ASPECT OF THE SERVICES OR ANY EQUIPMENT OR SOFTWARE PROVIDED OR INSTALLED IN CONNECTION WITH THE SERVICES UNDER THIS AGREEMENT OR OUR MATERIALS OR WORKMANSHIP. Amnet shall not be liable for any damages caused by the delay in furnishing services or other performance under the Agreement. We will not be liable for any losses, or damages, including, without limitation, direct, indirect, incidental, special, or consequential damages, damages for interruption of services, loss of business, loss of profits, loss of revenue, loss of data, or loss of use, or increased expense of use you or any third party incur, whether in an action in contract, warranty, tort (including, without limitation, negligence), strict liability, or any other legal theory, even if we or any other person have been advised of the possibility of such liabilities, losses, or damages, we are not responsible for problems that occur as a result of the use of software or hardware that we do not provide with the services under this Agreement. In no case will the amount you may recover in any action against us exceed the total payments for services made to us by you pursuant to this Agreement in the immediately preceding 30 days. In no event will you or we assert a cause of action against the other party, except for nonpayment, more than one year after the cause of the action accrued.
Any waiver by either party of a breach of any provision of this Agreement will not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. Any waiver must be in writing. Failure by either party to insist upon strict adherence to any term of this Agreement on one or more occasions will not be considered a waiver or deprive such party of the right to insist upon strict adherence to that term or any other term of this Agreement.
If any provision of this Agreement is held unenforceable or invalid under any applicable law or is so held by applicable court decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or court decision.
21. Force Majeure
If either party is unable to perform any of its obligations under this Agreement because of natural disaster, actions or decrees of governmental bodies, communications line failure not the fault of the affected party, or other event beyond the reasonable control of the affected party (a “Force Majeure Event”), the party who has been so affected will immediately give notice to the other party and will do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement will be immediately suspended for the duration of the Force Majeure event.
A good faith (realistic) effort must be made by both parties to rectify disputes regarding service prior to pursuit of other avenues of resolution including but not limited to litigation or arbitration. Failure to exercise this good faith effort and document the same shall result in that party’s losing the right to have attorney’s fees and costs awarded to them in the event that they were successful in such dispute. Assignment. We may assign or delegate rights or obligations under this Agreement (including by operation of law) without the Client’s consent. If a third party acquires your business, you agree to make the acquisition subject to the assumption of the terms of this Agreement by the third party. Governing Law; Arbitration. Colorado law will govern and enforce this Agreement. You may bring arising out of this Agreement no action, regardless of form, against us more than two years after the cause of action has arisen. Any dispute arising from or with respect to this Agreement will be decided by arbitration in accordance with Colorado law. Emailing. We regularly send out our newsletter, virus alerts and other correspondences. This information will be sent out automatically to all of our customers unless we receive a notification to unsubscribe (available from any of our mailings).