Terms & Conditions

The term of this Agreement shall be for a period of One (1) Month beginning on the Commencement Date (“Initial Term”). This Agreement will automatically continue thereafter on a month to month basis until terminated by either party on thirty (30) days’ written notice to the other party. This Agreement may be terminated by either party for non-performance by the other party upon five (5) days written notice to the non-performing party. The non-performing party shall have the opportunity to cure the non-performance within that five-day period. Either party may terminate this Agreement at any time for any reason upon thirty (30) days’ written notice to the other party. GAPS shall provide security professional services (the “Services”) in the amount, for the times and at the location(s) set forth in Exhibit A. Client shall pay GAPS for the performance of the Services and any other products and/or services provided by GAPS hereunder at the rates (“Billing Rates”) and other charges set forth in Exhibit B or otherwise payable hereunder without deduction or set-off. Client shall pay in full the amount of and will be deemed to accept all invoices submitted to Client via GAPS’s current submission method within fifteen (15) days of the invoice date. 

The Billing Rates set forth in Exhibit B are valid for the first twelve (12) months of the initial term, thereafter they will be increased annually, rate increase will be submitted 30 days prior to rate increase taking effect and are effective as of the anniversary date of the Commencement Date, in an amount equal to the greater of (i) the percentage increase determined pursuant to Section C.3. below and (ii) three to (ix) nine percent (3-9%). GAPS will invoice Client on a Monthly Basis for all Services for the monthly period at beginning of the month unless otherwise agreed upon in writing. 

A. Scope of Services 

GAPS agrees to provide the Services in a professional and diligent manner. GAPS does not warrant or guarantee that the Services constitute complete security at Client’s location(s) so as to prevent any incident, loss, theft, damage or injury (including death). Client agrees that GAPS has not provided any consultation services regarding what may or may not be the proper levels of security staffing, or the methods of security provided, unless specifically requested for by Client. Security consultation services maybe included in the proposal process at clients request, future consultation services may be billed separately. 

Client may request a change in the Services. Such requested changes will be communicated in writing and will be effective only upon GAPS written approval which GAPS will not unreasonably decline. However, in no event will a refusal by GAPS to approve requested changes constitute a breach of this Agreement or otherwise constitute non-performance by GAPS of this Agreement. The parties acknowledge and agree that Exhibit A solely governs GAPS’s duties at Client’s location(s). 

The safe maintenance of Client’s premises and operations and equipment on those premises and the avoidance of unsafe conditions and practices is the sole responsibility of Client. 

B. Independent Contractor / Personnel 

GAPS is responsible for the hiring, training and supervision of all security professionals assigned by GAPS to Client’s location(s). Should Client direct or supervise security officers or change the instructions or supervision given to the security professionals by GAPS, including but not limited to including requiring GAPS personnel to use force and/or restraints and/or instructions related to Legally Mandated Break Periods (as defined herein), Client will be responsible for any damages, liabilities, claims or other consequences that may result. 

In addition to the Services set forth in Exhibit A attached hereto, and in addition to any general or routine training provided by GAPS to its security professionals, GAPS shall provide each of its employees assigned to Client’s location(s) with Client requested additional training at the costs set forth in Exhibit B. 

GAPS shall provide uniforms for all assigned personnel. GAPS will maintain these uniforms in good condition at GAPS sole cost and expense unless otherwise provided in Exhibit B. Equipment and non-standard uniforms required by Client will be provided as mutually agreed upon and at a cost mutually agreed upon in writing. GAPS’s personnel will not be required to carry weapons of any kind, unless otherwise expressly set forth herein. 

Security professionals assigned to Client’s location(s) are employees of GAPS, which is acting as an independent contractor. GAPS will pay all compensation due and owing to its employees and all required payroll taxes and withholdings. 

GAPS is entitled to assign personnel to Client’s location(s) in full compliance with applicable equal opportunity, civil rights and other employment laws/regulations. Upon reasonable written notice, Client shall have the right to request in writing that any of GAPS’s employees whose performance it finds to be unacceptable be removed from its location(s); provided reasons for such request do not violate applicable law. 

Client acknowledges that GAPS has spent considerable time and expense in recruiting and training its employees. As such, Client agrees that it will not employ, as a security professional or in any related capacity, directly or indirectly, including employment through a successor security contractor, any person who has been employed by GAPS in a supervisory capacity and assigned to Client’s location for a period of one hundred and eighty (180) days following the last date of that person’s employment with GAPS. In the event of a breach of this provision, Client shall pay GAPS the average bi-weekly billing for such employee for four (4) months as liquidated damages together with all legal fees and other costs arising from the breach of this provision. 

C. Billing 

The Billing Rates do not include the direct bill items (“Direct Bill Item(s)”) identified in Exhibit B, which shall be invoiced and paid by Client to GAPS in accordance with the payment terms herein. Notwithstanding anything contained herein to the contrary, GAPS may pass through any increase in any and all of the costs of any and all Direct Bill Items when incurred or accrued, and Client shall reimburse GAPS for such costs. 

The parties agree any wage rates, annual/monthly/weekly billing estimates, or wage estimates included in Exhibit B, any other addenda, any pricing sheet, RFP submission, and/or other document are for demonstration purposes only and will not have any impact on the Billing Rates, the amount Client agrees to pay, or on the wages GAPS pays its employees. 

In the event that GAPS experiences an increase in its costs resulting from any change, whether or not anticipated, in: (1) Federal, state, provincial, territorial, or local taxes, levies, or required withholdings imposed or assessed on amounts payable to and/or by GAPS hereunder or by or in respect of GAPS to its personnel; (2) Federal, state, provincial, territorial, or local minimum wage rates, mandated paid time off and/or sick leave, changes in overtime wage regulations, uniform maintenance expenses or other required employee allowances, licensing fees and/or requirements, or wage, medical, welfare and other benefit costs under collective bargaining agreements; (3) costs related to insurance and/or workers’ compensation; and/or (4) costs related to medical and/or welfare benefits and other requirements, including without limitation costs incurred by GAPS pursuant to applicable federal, state and/or local law, including, without limitation “Healthcare Reform Legislation Costs” (as defined below), the Billing Rates shall be increased by a percentage equal to the percentage increase in GAPS’s costs resulting from the items set forth in this paragraph. GAPS will provide Client notice of such change in the Billing Rates. 

Notwithstanding anything contained in this Agreement to the contrary, GAPS may pass through the costs set forth in Section C(3) to Client as incurred or accrued and Client shall pay GAPS for such costs. 

“Healthcare Reform Legislation Costs” means the costs and/or assessments incurred by GAPS in respect of employee medical and/or welfare benefits and other requirements under the applicable provincial, federal or local statutes and/or regulations. 

Unless otherwise expressly stated herein, GAPS’s fees and charges do not include any sales, use, excise or similar taxes, levies or duties (“Taxes”). Client is responsible for paying for all such Taxes in respect of GAPS’s Services or in respect of amounts payable by Client hereunder. If GAPS has the legal obligation to pay or collect Taxes for which Client is responsible under this section, the appropriate amount shall be promptly paid by Client to GAPS unless Client provides GAPS with either a valid and current tax exemption certificate or direct pay certificate, authorized by the appropriate taxing authority. 

Client agrees to pay GAPS one and one-half percent (1.5 %) per month interest or such maximum amount as permitted by law, whichever is less, on any invoice not paid by its due date. In the event that legal action is required to collect on any past-due invoiced amount owed to GAPS by Client under this Agreement, Client agrees to pay to GAPS the costs and attorneys’ fees incurred by GAPS in such action.

D. Physical and Intellectual Property 

Client recognizes and acknowledges that in performing its duties under this Agreement, GAPS may install and/or utilize proprietary software (hereinafter “Proprietary Software”), a valuable, special and unique asset of GAPS and/or third parties. This Proprietary Software is and will remain the sole and exclusive property of GAPS and/or those applicable third parties. 

Client further agrees that materials developed, generated, or produced pursuant to this Agreement, including but not limited to Post Orders, security plans, emergency plans, diagrams, reports, and writings, both internal and external (hereinafter collectively, “Work Product”), may include the proprietary information of GAPS and will remain the sole and exclusive property of GAPS. Client and Client’s personnel will have no proprietary interest in the Work Product. Client acknowledges that it will not share such Work Product with any third party and any Work Product in Client’s possession shall be returned to GAPS upon termination or expiration of this Agreement. 

Any property, equipment or supplies furnished by GAPS to its personnel in performance of the Services described in this Agreement shall remain the property of GAPS and shall be returned to GAPS promptly at the expiration or termination of this Agreement.

E. Insurance and Indemnification 

GAPS shall maintain Workers’ Compensation coverage for its security professionals and personnel assigned to Client’s location(s) at limits imposed by statute, including Employer Liability coverage. 

GAPS shall maintain for its own protection and benefit various other policies of insurance, including Commercial General Liability coverage, for its performance of the Services at Client’s location(s). 

GAPS shall maintain Automobile Liability insurance for its employees’ operation of GAPS’s owned, leased and non-owned vehicles. However, to the extent that Client requires GAPS employees to drive Client’s vehicles in performance of the Services, Client agrees to carry Automobile Liability insurance for those vehicles with bodily injury and property damage limits of One Million Dollars ($1,000,000.00). Such insurance will be primary for any loss or damage occurring to Client vehicles operated by GAPS employees in performance of the Services, and under no circumstances shall GAPS indemnify or defend Client or Client’s insurer for losses that occur or arise out of GAPS’s operation of Client-owned vehicles. 

Client agrees that GAPS is not an insurer of Client’s operations, personnel or facilities. Except as provided elsewhere in this Agreement, Client assumes all risk of loss, physical damage and personal injury at its operations, to its personnel and/or facilities or any other property resulting from fire, theft or other casualty, and Client waives any right of recovery and its insurers’ right of subrogation against GAPS for any loss or damage resulting from any such occurrence. 

GAPS will protect, defend, hold harmless and indemnify Client, its directors, professionals and employees from and against all claims, actions, liabilities, damages, losses, costs and expenses (including reasonable attorney’s fees) (the “Losses”) asserted against Client and directly resulting from the performance of the Services expressly required under this Agreement, provided such Losses (1) are caused solely by the grossly negligent failure of GAPS to perform the Services, or by other grossly negligent actions or omissions in the performance of the Services by GAPS, or through the willful misconduct or unlawful activity of GAPS; (2) are not caused in any way through the negligence, willful misconduct or unlawful activity of Client or otherwise resulting from GAPS’s compliance with specific direction from Client; and/or, (3) do not actually or allegedly arise out of a Legally Mandated Coverage Break(s) (as defined herein). GAPS’s obligations under this paragraph shall not extend to first party losses sustained by Client, or other benefits or insurance provided by client to its employees, including but not limited to medical, disability, and workers compensation benefits 

Notwithstanding anything contained in this Agreement to the contrary, should GAPS be found liable for any Losses hereunder for any reason, the sole and exclusive remedy of Client in any situation, whether in contract or tort, or otherwise, shall be limited to Client’s actual and direct damages, and shall in no event exceed the amounts invoiced over the previous twelve (12) month period and paid by Client to GAPS, such amounts to be inclusive of any defense costs. 

Client shall protect, defend, hold harmless and indemnify GAPS, its respective successors and assigns, and its directors, professionals and employees from and against all Losses asserted against GAPS arising out of incidents or occurrences taking place or arising at Client’s location provided that any such Losses: a) occur due to GAPS’s compliance with Client’s directions and requests (including but not limited to directions and requests in Section B.1 and Section B.5); b) occur during Legally Mandated Coverage Break(s); and/or, c) are: (1) attributable to bodily injury, sickness, disease or death or to damage to tangible property; and, (2) are not caused in any way through the negligence, willful misconduct or unlawful activity of GAPS, or the failure of GAPS to perform the Services. 

Under no circumstances will GAPS be liable to Client, or any other person or entity, for consequential, incidental, indirect or punitive damages, or for lost profits. 

Client shall give written notice to GAPS of any of its Losses or potential Losses arising out of the Services within thirty (30) days following notification of the occurrence giving rise to such Losses or potential Losses. No action to recover any Loss shall be instituted or maintained against GAPS unless notice of such Loss shall have been given by Client to GAPS in the manner and form set forth herein. No action to recover for any Loss shall be instituted or maintained against GAPS unless instituted not later than twelve (12) months following notification of the occurrence giving rise to such Loss. 

F. Compliance with Laws 

Some or all of the physical security guard services identified in this Agreement could be designated as a Qualified Anti-terrorism Technology (“QATT”) under the Support Anti-terrorism by Effective Technologies (SAFETY”) Act of 2002, 6 U.S.C. §§ 441-444, as amended. Where this QATT has been deployed in defense against, response or recovery from an act of terrorism, as that latter term is defined under the SAFETY Act (as herein defined), GAPS and Client agree to waive all claims against each other, including their professionals, directors, agents or other representatives, arising out of the manufacture, sale, use or operation of the QATT, and further agree that each is responsible for losses, including business interruption losses, that its sustains, or for losses sustained by its own employees resulting from an activity arising out of such act of terrorism. This provision shall apply throughout the term of this Agreement, regardless of whether GAPS should cease to have SAFETY Act coverage for these Services for any reason. 

Client shall, at its own cost and expense, comply in full with all applicable federal, state, provincial, and local statutes, laws, ordinances, rules regulations, orders, licenses, permits or fees (“Governmental Regulations”) applicable to its operations and its performance under this Agreement, including without limitation, (i) environmental laws, (ii) laws relating to accessibility by and accommodation of handicapped persons, and (iii) laws relating to discrimination of any type of manner. Client shall notify GAPS in writing within forty-eight (48) hours of any inquiry, notice, subpoena, lawsuit, or other evidence of an investigation by any public agency or the commencement of any judicial or administrative litigation, or arbitration proceedings with respect to GAPS’s operations at the property and/or performance under this Agreement. Should GAPS be issued a citation or other sanction because of conditions on the premises created by others, Client shall pay and will be responsible for the fine. The foregoing shall include, but not be limited to, all applicable health, safety, and labor standards. 

Under no circumstances will GAPS indemnify Client for Workers’ Compensation claims or for fulfilling independent statutory duties Client owes to third parties or its employees. 

G. Miscellaneous 

This Agreement represents the entire agreement and understanding of the parties concerning the subject matter herein and replaces any and all previous agreements, understandings, representations, discussions or offers. No modification to this Agreement shall be effective unless in writing and executed by both parties and delivered to each respective party hereto. 

A written waiver by either party of any of the terms or conditions of this Agreement shall not be deemed or construed to be a waiver of such term or condition for the future or of any subsequent breach of the Agreement. The failure to enforce a particular provision of this Agreement shall not constitute a waiver of such provision or otherwise prejudice GAPS’s right to enforce such provision at a later time. 

This Agreement is entered into solely for the mutual benefit of the parties hereto and no benefits, rights, duties or obligations are intended or created by this Agreement as to any third parties. 

Each party further warrants and represents that this Agreement has been executed by a duly authorized individual. 

This Agreement and all matters collateral hereto shall by governed by the laws of the state or province wherein the Services are to be provided without reference to its choice of law provisions. 

If any of the terms or provisions of this Agreement are ruled to be invalid or inoperative, all the remaining terms and provisions shall remain in full force and effect.

This Agreement may be executed in one or more counterparts, each of which shall constitute one and the same Agreement. The parties agree that this Agreement will be considered signed when the signature of a party is delivered by facsimile transmission or delivered by scanned image (e.g. .pdf or .tiff file) as an attachment to email. 

GAPS shall not be responsible for additional expenses and costs incurred by it or Client to provide Services pursuant to this Agreement as a result of unusual circumstances including, but not limited to, strikes, riots, revolutions, wars, military actions, fires, floods, droughts, natural disasters, pandemics, active shooter events, snow storms, blizzards or other inclement weather, accidents, insurrections, lockouts or other acts of God, perils of the sea, stoppage of labor, or other events considered as “Force Majeure”, or by any other unavoidable cause beyond GAPS’s reasonable control. All such additional expenses shall be the responsibility of Client as an additional charge invoiced and paid by Client as it is incurred, pursuant to the terms of the Billing section set forth above. Additionally, to the extent that GAPS is unable to perform, or is delayed in performing, the Services due to a Force Majeure event, such nonperformance or delayed performance is not a breach of this Agreement nor cause for Client’s termination of this Agreement . 

Either party may assign this Agreement to an affiliate meaning an entity controlling, controlled by or under common control with the party. Except as permitted in this section, Client may not assign, delegate or subcontract this Agreement without the prior written consent of GAPS. Notwithstanding the foregoing, in the event Client assigns this Agreement, it shall remain liable hereunder after such assignment. 

Any notice required or permitted hereunder shall be in writing and shall be delivered either in person, by nationally recognized overnight delivery service or by certified or registered mail, postage prepaid, addressed to the parties at the address shown in the opening paragraph (or as may be directed by a party in the future by written notice). 

In connection with the negotiation, execution and performance of this Agreement, each party acknowledges that it has been and will be provided with confidential business information of the other party (“Confidential Information”). Each party will exercise reasonable commercial efforts to protect and preserve the confidentiality of Confidential Information, including at a minimum those methods and procedures it uses to protect its own confidential information. A party shall not be required to preserve the confidentiality of Confidential Information to the extent it becomes public other than through the action or inaction of the party, or disclosure is required by law. If GAPS is required to disclose information belonging to Client, Client shall indemnify GAPS, its respective successors and assigns, and its directors, professionals, and employees from and against all Losses asserted against GAPS arising out of said disclosure. 

The parties further acknowledge and agree that to the extent GAPS has assumed insurance, defense and indemnification obligations hereunder, such obligations shall not apply to any work performed by GAPS at the direction of Client, or work performed by GAPS that is not specifically set forth on Exhibit A. Notwithstanding anything to the contrary provided herein or in any other direction (oral or written), GAPS and Client agree that in no event shall GAPS employees be required to undertake any duty which could potentially expose themselves to unreasonable risk or harm. At all times, Client represents and warrants that the policies and requirements GAPS and its employees are requested and/or required to adhere to by Client are lawful. 

For the avoidance of doubt, any duties contrary to and/or in excess of the Services, shall be agreed upon by the parties in writing. In the event that there are any post orders, directives, or other specification documents of any type (“Post Orders”), they shall not form any part of this Agreement, they are not incorporated into this Agreement and are not a novation or modification or expansion of the duties set forth in this Agreement. Further, if there is any conflict between the provisions of this Agreement and any other documents, this Agreement shall control. Under no circumstances shall the Post Orders expand the liabilities of the parties toward each other or any third party. 

Client acknowledges and agrees that the continuity of Services is subject to interruption for mandatory, paid rest periods or unpaid meal periods or other breaks as required by applicable law, during which time security professionals must be relieved of all duties, including without limitation to, the requirement to remain “on call” ( “Legally Mandated Break Period(s)”). Services at the locations set forth in Exhibit A will be interrupted and such locations will not be secured during such time that security professionals are on Legally Mandated Break Periods and Client has not agreed to pay for sufficient relief coverage (“Legally Mandated Coverage Break(s))”). 

The duties and responsibilities of GAPS are specifically set forth herein. Client acknowledges that Client alone has chosen the number of security professionals and type of services, e.g., armed, unarmed, to be provided under the Agreement; that GAPS has informed Client that additional security professionals and/or services are available at an additional cost; and that Client has elected not to avail itself of additional security professionals or services at this time unless mutually agreed upon in writing. 

The following provisions shall survive expiration or termination of this Agreement for any reason: A.1; A.3; B.1; B.4; B.5; B.6; C; D; E; F and G.