Client will pay all Equinox invoices on or before the due dates, via US Mail or Equinox payment portal. Many recurring monthly Products and Services are billed up to one month in advance and those are due before Services and Products are provided. Valid payment forms include check, several major credit cards, and ACH transfers. Each Service Plan’s first partial month and first full calendar month’s invoices are due before the initial Service Plan term begins. Subsequent Service Plan related invoices are for full calendar months, and are generally due before the related upcoming calendar month. If full payment is not received by the invoice due date, Equinox will charge the backup credit card on file, which Client agrees to keep current. Any past due payments will accrue interest at 1.5%/month. At 5 days delinquent, support tickets may no longer be created or tracked until the payments are brought current. At 15 days delinquent, a 10% service charge (minimum $150) will be assessed on each late invoice. Returned payments will incur a $50 return payment fee. Collection fees including reasonable attorney fees will be paid by Client. Any credits not applied to outstanding amounts will be returned to Client upon request. When no upcoming Services are anticipated in the next 12 months, any deposits and credits will be refunded when accounts are current, all Equinox Products are returned, and all Service Plans are terminated. If Client has outstanding amounts past due, Equinox may use its sole discretion in responding by temporarily pausing, slowing, halting, or not delivering some or all Services and Products, even those not directly related to the late amounts. Any paused Services will resume promptly after all past due amounts are paid. Such Equinox responses shall not be considered a material breach or non-performance or unconscionable. Unless Equinox sees a large sum past due or a pattern of late payments, typically such Equinox responses will only occur if there are balances more than 30 days past due. During such Equinox responses, Client will continue to be billed for and liable for active Service Plans and other one-time or recurring obligations.

Equinox may use or recommend vendors, subcontractors, affiliated companies, third-party service contracts and providers, and non-Equinox resources. 

Unless otherwise noted in General Pricing or a Service Plan, actual round trip travel time is charged along with either current IRS mileage reimbursements for any same-day round trip more than 20 miles from an Equinox office. In addition, for locations more than 200 miles from an Equinox office, first class airfares are charged, and travel is calculated and charged from US GSA schedules, including any POV mileage, and including per diems for lodging and meals and incidentals.

When Client lets Equinox know they are interested in changing from one Service Plan to a different one in the same general family or category or services, Equinox may offer alternatives that reduce, eliminate, or waive conversion and termination fees.

Equinox may switch Client from an existing Service Plan to an alternative Service Plan and pricing by providing at least 90 days advance notice, as long as alternative Service Plan is either less expensive than the previous Service Plan, or no more than 25% higher priced than previous Service Plan.

A.    Equinox may terminate individual Service Plans or the entire Agreement for any reason by providing written notice to Client and giving a Final Date that is 30 or more days away, and waiving all termination and conversion fees.

B.    If a Service Plan is terminated by either party, then after the Final Date any related Services or Products will be billed using General Pricing, not Service Plan pricing.

C.    If either party provides written notice and evidence of clear material breach to the other party, the other party must cure the specified breach within 60 days, otherwise any related Service Plans will be terminated on that 60th day and related fees will be waived.

D.    Equinox may terminate the Agreement or any Service Plans effective immediately, with no advance notice to the Client, if Client: (i) is dissolved or liquidated or takes any corporate action for such purpose; or (ii) becomes insolvent or is not paying all amounts in a timely manner; or (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law; or (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property; or (vi) merges with another entity or sells all or substantially of its assets

E.    Upon termination of the Agreement or any Service Plan, all amounts owed by Client are due immediately, and all the related rights, licenses, and authorizations granted to Client hereunder will immediately terminate. Equinox obligation is solely to provide essential related access details, such as administrator passwords, to the Client. Client will have no right to the information or documentation that Equinox organized or created in order to better perform related Services.

F.    Upon termination of the Agreement, all rights and obligations of the parties hereunder shall cease except:  (a) Rights and obligations that have accrued as of the date of such termination, including any payments owed; (b) Rights and obligations that expressly survive termination in order to carry out the manifest intent of this Agreement, including, without limitation, the provisions of paragraphs pertaining to headhunter fees, and the nondisclosure of Confidential Information; and (c) Any remedies available to either party against the other party for a breach of this Agreement.

Capitalized terms not defined herein shall have the meaning set forth in the Service Agreement.

If any portion of the Agreement, including related Service Plans and the GT&C makes reference to a non-specific date or term, it will be assumed to be the “then-current” date or term, unless it can only be reasonably interpreted another way.

Equinox may cap Services at amounts it deems reasonable, and may modify pricing for those Services, and may deliver such Services at a pace and priority that Equinox determines is reasonable. Whether capitalized or not, any use of “unlimited”, “full service”, “fully managed”, and similar words and phrases are marketing terms, not literal terms, even when used in Agreements or Service Plans.

A.    Notification
Client will immediately notify Equinox of any failure in any Equinox Services or Products, and will provide Equinox with reasonable detail of the nature and circumstances of such failure.

B.    Environment
Client will ensure their technology is operating in suitable environmental conditions including but not limited to cleanliness, ventilation, temperature, humidity, power, and protected adequately from other environmental hazards such as flooding, fire, hazardous materials, etc. Client will ensure all facilities, furniture, and equipment are properly set up and maintained, and are kept in safe working condition and in good repair.

C.    Access to Personnel, Facility, Technology
Client shall provide Equinox personnel with all such cooperation, assistance, and access as Equinox may reasonably request or require, including the installation or removal of Equinox-provided hardware, licenses, and software. This includes reasonable access to:

• Appropriate Client personnel, including end users, managers, administrators, executives, as well as facility, network, systems, operations and applications personnel

• Client’s premises and facilities
• Client technology, including physical and virtual systems
• All necessary authorizations and consents and arrangements, whether from landlords, third parties, or otherwise, in connection with any of the foregoing.

D.    Data Protection Backup
Client will keep separate adequate protections, redundancies, failovers, and spare equipment in place. Client will separately backup all data, files, configurations, and other information prior to Equinox’ performance of any Services and hereby assumes sole responsibility for any lost or altered data, files, configurations, or other information.

E.    Technology Recommendations
During the course of providing Services, should Equinox in its professional judgment determine that additions, changes, improvements, or enhancements to Client’s technology are necessary to the effectiveness of the Services, Equinox shall recommend installs, overhauls, replacements, expansions, enhancements, major software and hardware upgrades, migrations, transitions, and/or the like to Client. Client agrees to implement within 120 days of recommendation any Project that Equinox determines in good faith to be necessary. Project fees are separate from Service Plan fees.

F.    Corporate Structure Changes
Client shall immediately notify Equinox of any upcoming corporate structure changes, including mergers, acquisitions, divestitures, significant asset sales, discontinuation of business, or the like.  If such change could reasonably be anticipated to materially affect the types, quantity, or quality of Services, including the cost of providing Services or Equinox’s ability to adequately provide Services, Equinox shall have the option, but not the requirement, in its sole discretion to (1) discontinue Services and terminate related Service Plans upon 30-days’ written notice to Client; or, (2) modify the fees charged for the Services; or, (3) continue providing Services without changes. Should any hardware on which charges or fees are calculated be transferred, removed, or relocated from Client to any related entity, that hardware shall continue to be included in the pricing calculations for the Service Plans. For purposes of this paragraph, related entity shall mean any entity or person that Equinox reasonably determines, including but not limited to entities that own more than 5% of Client or entities that are Client owns more than 5% of.
 

As used herein, "Confidential Information" means, both individually and in any combination thereof, any and all confidential or proprietary information of a party that is unique, not generally known, gives that party a competitive advantage, and/or enhances the party’s goodwill, whether developed in the course and scope of this Agreement or not, whether or not reduced to writing, and whether or not patentable or protected by copyright.  Confidential Information includes but is not limited to (a) information about a party’s personnel, third-party contracts, vendors, technology, services, trade secrets, ideas, copyrights, trademarks, service marks, methods, processes, research and development, hardware, software, purchasing, accounting, business methods and techniques, marketing and/or sales plans or proposals, cost information, financial information, pricing materials, or business communications and/or (b) any other information of a party that the other party has a reasonable basis to believe to be confidential or proprietary information of the first party.  Confidential Information shall not include information (a) that is or becomes generally available to the public other than as a result of a disclosure by the receiving party; (b) information that was already known to the receiving party prior to its disclosure under the Agreement if the source of the information was not subject to any prohibition against transmitting the information to the receiving party; or (c) information that becomes available to the receiving party from a source other than the furnishing party if such source was not subject to any prohibition against transmitting the information to the receiving party.

During the Term of the Agreement and for as long as the information remains Confidential Information, the receiving party, including its and its affiliates directors, officers, employees, representatives, counsel and other professional advisors (collectively, “Representatives”), (i) will not disclose the Confidential Information to any person or entity other than as permitted hereby, (ii) will safeguard the Confidential Information from unauthorized disclosure using no less than the same care the receiving party affords its own Confidential Information of a like nature, but no less than a reasonable degree of care, and (iii) will not use the Confidential Information for any purpose other than in connection with its rights and obligations under this Agreement.   The receiving party may disclose the Confidential Information to any of its Representatives if such Representatives have a need to know the Confidential Information in connection with the Services.  Before such disclosure, the receiving party will inform such Representatives of the confidential nature of the Confidential Information and the non-disclosure requirements and limitations on use set out above.  The receiving party shall be responsible and liable for any action or omission by any of its Representatives that results in a breach of the Agreement.

The parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration.  Either party may commence mediation by providing to the other party a written request for mediation, setting forth the subject of the dispute and the relief requested.  The parties will cooperate with one another in selecting a mediator and in scheduling the mediation proceedings to be held within two months. The parties agree that they will participate in the mediation in good faith and that they will share equally in its costs.  All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.  All applicable statutes of limitation and defenses based upon the passage of time shall be tolled from the time either party makes a request for mediation until the mediation is concluded or the other party manifests its intent not to mediate.

Should mediation fail to resolve the matter in its entirety, or should either party refuse to mediate or to schedule a mediation in a timely manner, any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Utah County, Utah before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.  This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Utah, exclusive of conflict or choice of law rules.  The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in this paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.).

For 2 years after any Service has been provided, if Client recruits or solicits for employment or engagement as an independent contractor, any person who employed by Equinox within the prior 12 months, then Client will pay a headhunter fee equivalent to either 1 year’s worth of their most recent Equinox compensation (including gross wage and benefits), or $90,000, whichever is greater.

No Agency.  The parties are entering into this Agreement as independent contractors and nothing herein will be deemed to create an employment relationship, an agency relationship, or a partnership or joint venture relationship between the parties.  Neither party has the authority to bind the other party or to incur any liability for, or otherwise act on behalf of, the other party.

Notices.  Any notice required or permitted by this Agreement shall be sent by a national mail service, email, facsimile or similar communication, addressed to the other party at the address set forth herein or as provided by either party from time to time.  Notices sent in accordance with this section will be deemed effectively given: (a) when received, if delivered by hand; (b) when received, if sent by a nationally recognized overnight courier; (c) when sent, if by facsimile or e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day if sent after the addressee’s normal business hours; and (d) on the third day after the date mailed by national mail service, postage prepaid.

Severability.  If any term or provision of these GT&C, any Agreement, or any Service Plan shall be found to be invalid, illegal or unenforceable, the document shall be automatically amended to delete the term or provision found to be invalid, illegal or unenforceable, and the validity of the other terms shall not be affected.  It is the intent and desire of the parties that these GT&C, any Agreement, or any Service Plan be enforced to the fullest extent permitted by law.

Entire Agreement; Modification.  This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, understandings, representations and agreements between the parties, written or oral, with respect to such subject matter.  The Agreement may be modified if signed by both parties.  The Agreement and related Service Plans may be modified by Equinox, from time to time, in its discretion, and upon notice to Client.

Force Majeure.  Nonperformance of a party shall be excused to the extent that performance is rendered impossible by war, act of terrorism, strike, fire, weather, flood, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party, provided that the non-performing party uses its reasonable best efforts to promptly resume performance once it is possible to do so.  Payment of Fees shall not be excused by force majeure.

Assignment.  This Agreement shall inure to the benefit of, and be binding upon, all parties and their respective successors.  Client may not delegate, assign, sublicense, or transfer its rights or obligations under this Agreement, by operation of law or otherwise, without the other party's prior written consent, which consent shall not be unreasonably withheld.

Waiver.  Non-enforcement of any provision hereof shall not operate as a waiver of enforcement of the same or any other provision in the future.