Gilbert Terms & Conditions – Gilbert

Gilbert Terms & Conditions

Architectural

In order for Gilbert to commence the construction of the Work and complete and install the same at the Project Site on or before the Requested Installation Date in accordance with the provisions hereof, Client must on or before the Proposal Valid Through Date stated above (i) sign and date a copy of this Agreement and return the same to Gilbert together with Client’s payment of the first deposit amount set forth in the Progress Payment Schedule detailed above (the “First Deposit”) and (ii) approve the Drawings and Specifications as provided below.  If on or before Proposal Valid Through Date, Client fails to return to Gilbert a signed copy of this Agreement together with Client’s payment for the amount of the First Deposit and/or fails to approve the Drawings and Specifications, Gilbert may revise the Contract Sum and/or the Requested Installation Date.

Gilbert will prepare all shop and assembly drawings and specifications describing the Work to be performed by Gilbert (the “Drawings and Specifications”).  Client or its authorized agent must approve the Drawings and Specifications prior to Gilbert’s commencement of the construction of the Work.  If required by Gilbert or this Agreement, Client or its authorized agent must also review and approve with reasonable promptness any samples and/or product data submitted by Gilbert in order not to delay the progress of the Work.  The Contract Sum includes Gilbert’s fee for the preparation of the initial submission of the Drawings and Specifications and, if necessary, one revision thereto.  Additional revisions of the Drawings and Specifications will be charged at $125.00 per hour.

If Client or its authorized agent requests any changes to the Drawings and Specifications, Gilbert may revise the Contract Sum and/or the Requested Installation Date.  If subsequent to the execution of this Agreement and the approval of the Drawings and Specifications any changes to the Work or extras are requested by Client or its authorized agent or are required due to concealed or unknown physical conditions encountered at the Project Site that differ from those indicated in the Drawings and Specifications or from those conditions ordinarily found to exist, Client shall pay to Gilbert in addition to the Contract Sum with respect to such changes or extras an amount equal to Gilbert’s cost of labor, materials and/or equipment and a reasonable sum for Gilbert’s overhead and profit (the “Change Order Amount”).  Gilbert shall be entitled to receive the Change Order Amount regardless of whether said changes or extras have been made in writing, and each change in the Work or extra implemented by Gilbert may be billed to Client separately.

ALL INVOICES FOR EACH PROGRESS PAYMENT OF THE CONTRACT SUM AND FOR EACH CHANGE IN THE WORK OR EXTRA BILLED SEPARATELY BY GILBERT ARE DUE UPON RECEIPT.  GILBERT MAY BE RESPONSIBLE TO COLLECT SALES AND/OR USE TAXES FOR SOME OR ALL ITEMS INCLUDED IN THIS AGREEMENT.  SALES AND USE TAXES ARE NOT INCLUDED IN THE CONTRACT SUM AND SHALL BE PAID BY CLIENT IN ADDITION THERETO.  TO THE EXTENT GILBERT MAY BE RESPONSIBLE TO COLLECT SALES AND/OR USE TAXES FOR SOME OR ALL THE PRODUCTS AND SERVICES INCLUDED IN THIS AGREEMENT, GILBERT MAY INCLUDE SUCH TAXES IN EACH INVOICE OR IN THE FINAL INVOICE.

Client shall secure and pay for any building permits and other permits and governmental fees, licenses and inspections necessary for the proper execution and completion of the Work.

  1. PERFORMANCE

1.1 Unless otherwise provided in this Agreement, Gilbert shall furnish all labor, materials and equipment required for the execution and completion of the Work.  Gilbert will consult with Client as needed in the course of performing the Work, and Client agrees to respond with reasonable promptness to any inquiries made by Gilbert to further clarify the Scope of Work.

1.2 The Work does not include any of the following, unless expressly stated in this Agreement to be performed by Gilbert:  (i) demolition at the Project Site, (ii) protection of the Work at the Project Site, (iii) electrical work, (iv) plumbing work or (v) HVAC work (except that Gilbert will install drop in place registers or covers).

1.3 Gilbert shall not be required to provide professional services which constitute the practice of architecture, engineering or other professional services in violation of applicable law.  If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of Gilbert pursuant to the provisions of this Agreement or the Drawings and Specifications, Client will specify all performance and design criteria that such services must satisfy.  Gilbert shall cause such services or certifications to be provided by a properly licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, shop drawings and other submittals prepared by such professional.  Shop drawings and other submittals related to the Work designed or certified by such professional, shall bear such professionals written approval when submitted to Client.  Client shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided Client has specified to Gilbert all performance and design criteria that such services must satisfy.

1.4 To facilitate Gilbert’s completion and installation of the Work, unless expressly stated in this Agreement to be performed by Gilbert, Client shall prepare the Project Site so that the same is in the proper condition to receive the installation of the Work and shall provide and pay for all utilities and facilities at the Project Site, including but not limited to, electricity, heat, air conditioning, water and other facilities and services required for the completion and installation of the Work.

1.5 If Gilbert is delayed at any time in the commencement or progress of the Work by an act or neglect of Client or its architect or other authorized agent, or of an employee of any of them, or of a separate contractor employed by Client, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties, flood, war, terrorism, riots, accidents, embargoes, blockades, or other causes beyond Gilbert’s control, or by delay authorized by Client, or by a suspension in the performance of the Work as provided in Section 7.1 hereof, then the Requested Installation Date shall be extended for such reasonable time as Gilbert may determine and Client shall pay to Gilbert the amount of Gilbert’s reasonable additional costs of demobilization, delay and remobilization incurred in connection therewith.

1.6 If Gilbert is required to rely on measurements or other information provided by the Client or its authorized agent and/or if client is providing materials other than those provided by Gilbert and such reliance on this information and suitability of materials shall compel Gilbert to incur additional labor or material costs for the purpose of completing the Work, Client shall pay to Gilbert an amount equal to Gilbert’s ACTUAL cost for the additional labor, materials and equipment and a reasonable sum for Gilbert’s overhead and profit.

1.7 Gilbert warrants that it: (i) is in good standing under the laws of the State of New York and is duly qualified to do business in all necessary jurisdictions and venues; (ii) has sufficient personnel, equipment, finances, experience and expertise to meet its obligations under this Agreement and will perform the Work and all associated services in a timely, professional, competent and cost-effective manner; (iii) will not be prevented from performing any of its obligations under this Agreement because of existing legal or contractual restrictions or prohibitions and (iv) will perform the Work in full compliance with applicable laws, codes, regulations and industry standards.

  1. PAYMENT

2.1 Client shall pay the Contract Sum to Gilbert in accordance with the Progress Payment Schedule detailed above and shall pay each Change Order Amount to Gilbert, upon receipt of the invoice therefor.  If Client fails to pay the amount of any invoice within thirty (30) days from the date thereof, Client agrees to also pay to Gilbert interest on the unpaid portion of such invoice from date thereof to the date the same is paid in full at the rate of 1.5% per month, not to exceed the maximum rate allowed by law.

2.2 Unless expressly stated to the contrary in this Agreement, Client shall be responsible for paying any and all taxes (excluding income or franchise taxes imposed on or measured by Gilbert’s net income) arising from this Agreement, including without limitation, all sales, use, excise, gross receipts, state and local surcharges, value added and similar taxes.

2.3 The Scope of Work may list prices or fees with wording such as “Estimate Only,” “Estimate,” “for budget purposes only,” “budget,” “on a time and materials basis” or with similar wording.  In such cases, the Contract Sum is not the final price for the Work but is an ESTIMATE ONLY and Client shall pay to Gilbert an amount equal to Gilbert’s ACTUAL cost of labor, materials and equipment and a reasonable sum for Gilbert’s overhead and profit

2.4 For purposes of this Agreement, (i) Substantial Completion of the Work is the stage in the progress of the Work when the Work is sufficiently complete in accordance with the Drawings and Specifications so that the Client can occupy or utilize the Work for its intended use and (ii) Final Completion of the Work is achieved when the Work is fully performed and has been completed in accordance with the Drawings and Specifications.

2.5 Client agrees that if Client fails to pay any amounts due Gilbert pursuant to this Agreement within the time herein provided and Gilbert engages a collection agency and/or an attorney to collect the same and/or enforce the provisions of this Agreement, Client shall also pay to Gilbert all collection fees and/or attorney’s fees, court costs and disbursements incurred by Gilbert in connection therewith and in connection with any action or proceeding commenced with respect thereto, including any appellate proceedings.

2.6 Title to, and risk of loss with respect to, the Work shall pass to Client upon Gilbert’s installation of the Work at the Project Site.

2.7 All payments must be made in Us Dollars ($) and drawn on a US bank.  Where this is not possible, funds must be remitted via wire transfer and must be made in Us Dollars.  Wire transfer instruction will be made available upon request.

  1. LIMITED WARRANTY

3.1 LIMITED WARRANTY

3.1.1 Gilbert, Inc. (“Gilbert”) warrants to Customer that for the period of one (1) year after Substantial Completion of the Work (the “Warranty Period”), Gilbert will, at its option, repair or replace any portion of the Work which is materially defective in workmanship or materials at no extra charge to Customer for cost of parts, materials, labor or transportation; provided that Customer gives written notice of such defect to Gilbert prior to the expiration of the Warranty Period. At Gilbert ‘s option, repair or replacement will be undertaken at the Project Site or Gilbert ‘s plant. The Warranty Period for the portion of the Work that has been repaired or replaced by Gilbert will be the later of (i) one (1) year after Substantial Completion of the Work or (ii) thirty (30) days after the date of repair or replacement.

3.1.2 Gilbert expressly disclaims any warranty, representation, covenant, obligation or responsibility with respect to the suitability, quality, workmanship, format or nature of any material or product (including without limitation, artwork, graphics, Customer ‘s products, etc.) provided by Customer, or any agent, representative or separate contractor of Customer for use by Gilbert in the performance of the Work.

3.2 REPAIR OF WORK

3.2.1 If any portion of the Work claimed to be defective by Customer is determined by Gilbert not to be covered by this Limited Warranty, any repair assessment made by Gilbert at the Project site will be charged to Customer based on Gilbert ‘s labor and travel costs incurred to make the assessment. If Customer requests that Gilbert perform the non‐covered repair work, Customer shall pay to Gilbert the cost of parts, materials, labor and transportation, plus a reasonable amount for overhead and profit, for the performance of the non‐covered repair work; provided, however, any travel expenses incurred by Gilbert to make the repair assessment will be waived by Gilbert. If the repair is determined to be covered under this Limited Warranty, no repair assessment charge will be payable by Customer.

3.2.2 If a portion of the Work is replaced by Gilbert, the new parts and/or materials provided by Gilbert becomes Customer ‘s property and the parts and/or materials that were replaced becomes Gilbert ‘s property.

3.3 LIGHTING, AUDIOVISUAL AND ELECTRICAL SYSTEMS

3.3.1 If the Work includes any lighting fixture, media player, video monitor/television and/or electrical system, including lights, drivers and transformers, the Warranty Period with respect to such items shall not extend beyond the period of the manufacturer ‘s warranty. This Limited Warranty does not include consumable items, such as lightbulbs.

3.3.2 As described in Section 3.5, improper use of any lighting fixture, media player, video monitor/television and/or electrical system is not covered.

3.4 MATERIALS

3.4.1 Metal: Any solid metal surface regardless of finish type with clear coat applied are covered under this Limited Warranty against discoloration, cracking or peeling. Any solid metal surface regardless of finish type without a clear coat application will need to be maintained by Customer and any discoloration or natural oxidization is not covered by this Limited Warranty.

3.4.2 Paint: All painted surfaces regardless of type are covered under this Limited Warranty against technical failure, including cracking or peeling. As described in Sections 3.5.1 and 3.5.2, imperfections caused by normal wear and tear are not covered.

3.4.3 Glass: Glass is covered under this Limited Warranty against scratches and chips up until the point the Work is installed and delivered to Customer. As described in Section 3.5, scratches and chips to any glass occurring after installation and delivery to Customer is not covered.

3.4.4 HPL (High Pressure Laminate): HPL is covered under this Limited Warranty against defects in manufacturing or craftsmanship such as delamination. As described in Sections 3.5.1 and 3.5.2, imperfections caused by normal wear and tear are not covered.

3.4.5 Textiles: Textiles are covered under this Limited Warranty against defects in manufacturing or craftsmanship. As described in Sections 3.5.1 and 3.5.2, imperfections caused by normal wear and tear are not covered.

3.5 NOT COVERED UNDER LIMITED WARRANTY

3.5.1 This Limited Warranty does not apply to products that have been used inappropriately, abused, misused, altered, or cleaned with incorrect cleaning methods or incorrect cleaning products or any products not listed in the Gilbert ‘s approved maintenance manual. This Limited Warranty does not cover normal wear and tear, or cuts, scratches or damage caused by shipping, third parties, impacts, accidents, fire, earthquake or other external cause.

3.5.2 “Wear and Tear” and “Natural Characteristics” are not covered by this Limited Warranty under any circumstances. The diagnosis of these factors will be determined by Gilbert ‘s technicians or appointed professional who in some circumstances may have to carry out testing. Some traits of “Wear and Tear” and “Natural Characteristics” are listed below. The list is not exhaustive and Gilbert reserves the right to abide by the diagnosis of the technician or appointed professional:

3.5.3 Replacement and/or repair of materials and/or products that adhere to Gilbert ‘s standard for acceptable cosmetic appearance of finishing as well as industry standards for materials, methods and finishing.

3.5.4 Products considered consumables (e.g., lightbulbs).

3.5.5 Glass breakage, chips and/or scratches that are not due to a defect in material or workmanship.

3.5.6 The replacement or repair of locks, hinges and draw glides when the replacement or repair is due to misuse and is not due to a defect in material or workmanship.

3.5.7 Any alterations, repair or work carried out by a repair or service company that is not authorized by Gilbert.

3.6 EXCLUSIONS

3.6.1 OTHER THAN AS EXPRESSLY SET FORTH IN THIS LIMITED WARRANTY, ALL WARRANTIES BY GILBERT, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) ARE HEREBY EXCLUDED TO THE EXTENT PERMITTED BY LAW.

3.6.2 GILBERT SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, RELIANCE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF GOODWILL, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) REGARDLESS OF THE FORM OF ACTION WHETHER IN BREACH OF WARRANTY, BREACH OF CONTRACT, INDEMNITY, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE OF ANY KIND) OR ANY OTHER THEORY OF LIABILITY IN CONNECTION WITH THE PRODUCTS AND SERVICES PROVIDED BY GILBERT.

3.6.3 IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF GILBERT, ITS PARTNERS, PRINCIPALS, SUBCONTRACTORS, AGENTS, SUPPLIERS, EMPLOYEES OR DIRECTORS (INCLUDING IN THE AGGREGATE WITH ITS AFFILIATES) TO CUSTOMER ARISING OUT OF OR RELATING TO WORK PERFORMED BY GILBERT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO GILBERT WITH RESPECT THERETO.

  1. INSURANCE; LIMITATION OF LIABILITY

4.1 Gilbert agrees to procure and maintain the following insurance at its own cost and expense, during the term of this Agreement and for one (1) year after Substantial Completion of the Work: (i) Comprehensive Commercial General Liability Insurance with limits of not less $1,000,000.00 combined single limit for bodily injury and property damage (other than to the Work itself) with an addendum of “umbrella coverage” up to $4,000,000.00 per occurrence; (ii) Automobile Liability Insurance covering all owned, leased, hired or borrowed vehicles and employer’s non-owned liability with a limit of $1,000,000.00 combined single limit for bodily injury and property damage; and (iii) Statutory Worker’s Compensation Insurance with an employer’s liability limit equal to or exceeding applicable statutory requirements. Such property insurance shall be maintained until final payment has been made to Gilbert for the performance of the Work.  This insurance shall include the interests of Client and Gilbert in the Work.  If Gilbert is damaged by the failure or neglect of Client to purchase or maintain such property insurance as herein provided, then Client shall bear all reasonable costs incurred by Gilbert arising out of or in connection with such failure.

4.2 GILBERT DOES NOT MAINTAIN ANY PROPERTY INSURANCE COVERING LOSS OR DAMAGE TO THE WORK BY ANY PERIL.  Client shall purchase and maintain, in a company or companies lawfully authorized to do business in the jurisdiction in which the Project Site is located, property insurance written on an “all-risk” or equivalent policy form covering the Work on a replacement cost basis.

4.3 Client and Gilbert waive all rights against each other and any of their subcontractors, sub-subcontractors, agents and employees, each of the other, for damages caused by fire or other causes of loss to the extent covered by property insurance applicable to the Work, except such rights as they have to proceeds of such insurance held by Client as fiduciary.  Client and Gilbert, as appropriate, shall require of the subcontractors, sub-subcontractors, agents and employees of each of them, by appropriate agreements, similar waivers each in favor of other parties enumerated herein.  The policies shall provide such waivers of subrogation by endorsement or otherwise.  A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged.

  1. CONFIDENTIALITY

5.1 All Drawings and Specifications are to remain the property of Gilbert until all invoices pertaining to the Work have been paid in full.  Client agrees not to make copies of the Drawings and Specifications or to provide the same to any other party without receiving express written permission from Gilbert prior to their disclosure.

  1. PROMOTIONAL MATERIAL, TRADEMARKS AND OTHER MATERIALS

6.1 In connection with Gilbert’s performance of the Work, Client may provide certain images, logos, materials and information (the “Client Materials”) to Gilbert.  Client will retain full ownership of the Client Materials and Gilbert agrees not to take any steps that may compromise Client ownership rights.  Client will indemnify, defend and hold Gilbert and its officers, directors, employees, agents and independent contractors harmless from and against claims that any Client Materials infringe a third party’s patents, copyrights, trademarks or trade secrets.

6.2 Client grants to Gilbert a limited, non-exclusive, non-transferable, royalty-free license to use all the trademarks, service marks, trade names, and logos owned by or licensed to Client: (i) solely for Gilbert’s use in the performance of the Work and (ii) to the limited extent necessary to permit Gilbert to use sketches, drawings, pictures, photographs or other depictions of the Work in Gilbert’s promotional and marketing efforts.  Except to the extent herein provided, Gilbert has no other right to use Client’s trademarks, service marks, trade names and logos for any purpose.

  1. SUSPENSION AND TERMINATION

7.1 In addition to all other remedies available to Gilbert, if Client fails to make payment when due Gilbert in accordance with Section 2 hereof, Gilbert may, upon five (5) days’ written notice to Client, suspend performance of the Work.  Unless payment in full is received by Gilbert within five (5) days of the date of the notice, the suspension shall take effect without further notice and continue until Gilbert receives payment in full.  In the event of a suspension of the performance of the Work, Gilbert shall have no liability to Client for delay or damage caused to Client because of such suspension of the Work and Client shall pay to Gilbert the amount of Gilbert’s reasonable additional costs of demobilization, delay and remobilization incurred in connection therewith.

7.2 If any amount due to Gilbert in accordance with Section 2 hereof is not paid by Client for a period of thirty (30) days after the date the same is due, Gilbert may, in addition to all other remedies available to Gilbert, upon five (5) days’ written notice to Client, terminate this Agreement and recover from Client payment for the portion of the Work executed by Gilbert and for proven loss with respect to materials, equipment, tools, and construction equipment and machinery, including reasonable overhead, profit and damages.

7.3 Gilbert may also terminate this Agreement at any time effective immediately upon written notice to Client, if: (i) Client defaults in complying with any non-monetary obligation contained in this Agreement and fails to cure such default within thirty (30) days of receiving written notice from Gilbert specifying such default; (ii) Client becomes insolvent, fails to pay its debts as they mature or perform its obligations in the ordinary course of business, or admits its insolvency or inability to pay its debts or perform its obligations; (iii) Client makes an assignment for the benefit of creditors; (iv) Client files or has filed against it a petition in bankruptcy or any form of debtor relief relating to bankruptcy; (v) a receiver, liquidator, assignee, trustee, custodian, or similar official is appointed to take possession of all or a substantial part of Client’s property; or (vi) Client fails to provide to Gilbert adequate assurances of Client’s ability to perform its obligations hereunder within thirty (30) days of Gilbert’s demand for such assurances, provided that Gilbert has reasonable grounds for insecurity with respect to Client’s performance of its obligations hereunder. 

  1. GENERAL TERMS AND CONDITIONS

8.1 Gilbert and Client are independent contractors, and nothing will be deemed to create a partnership, employment, and fiduciary or agency relationship between them.  Neither party has any power to bind or create obligations on the other’s behalf.

8.2 All notices required hereunder must be made in writing and delivered in person, by reputable overnight courier or by United States mail (postage prepaid) to the addressee at the address stated at the end of this Agreement, or to another address that a party designates in writing.  Notices will be deemed received (i) immediately for delivery in person, (ii) on the next business day for delivery by overnight courier and (iii) on the third business day for delivery by United States mail.

8.3 This Agreement shall be binding upon and inure to the benefit of the parties named herein and their respective successors and permitted assigns.  Client may not assign any of the rights or interests under these terms and conditions of sale without the prior written consent of Gilbert, except that Client may, without Gilbert’s consent, assign this Agreement to any party which acquires all or substantially all of Client’s assets by merger, sale of assets, or otherwise.  Due to the personal nature of Gilbert’s obligations under this Agreement, Gilbert may not assign its obligations under this Agreement without Client’s prior written consent, except that Gilbert may, without Client’s consent, assign this Agreement to any party which acquires all or substantially all of its assets by merger, sale of assets, or otherwise.

8.4 This Agreement and the Drawings and Specifications (and any other documents herein referred to) represent the entire agreement between Gilbert and Client with respect to the subject matter hereof and supersede all previous and contemporaneous agreements, discussions and communications, and any purchase orders submitted by Client to Gilbert, with respect thereto.  If there is any conflict between this Agreement and the Drawings and Specifications (and any other documents herein referred to), the provisions of this Agreement shall prevail.  No failure or delay in exercising any right, power or privilege will be considered a waiver, and no actual waiver of any breach will be deemed to waive any other breach of the same or a different provision.

8.5 The enforceability, construction, interpretation and validity of this Agreement shall be governed by the laws of the State of New York (without giving effect to principles of conflicts of law) and the applicable laws of the United States of America.  Any legal suit, action or proceeding against either party hereto arising out of or relating to this Agreement shall be instituted in any Federal court in the Eastern District of New York or State court in the State of New York, County of Nassau, and Client waives any objections which it may now or hereafter have based on venue and/or forum non conveniens of any such suit, action or proceeding, and Client hereby irrevocably submits to the jurisdiction of such court in any suit, action or proceeding.  The parties hereto further agree that service of process in any such suit, action or proceeding may be effected upon them by mail or delivery in the manner provided herein for giving notices pursuant to Section 8.2 hereof and shall be deemed in every respect effective service of process upon such party in any such suit, action or proceeding.

8.6 Each party hereto hereby agrees not to elect a trial by jury of any issue triable of right by jury, and waives any right to trial by jury fully to the extent that any such right shall now or hereafter exist with respect to this Agreement, or any claim, counterclaim or other action arising in connection herewith.

8.7 In the event that any provisions of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, the remainder of this Agreement shall otherwise continue in full force and effect without said provision.

8.8 This Agreement may only be modified in writing signed by the parties hereto.

8.9 The individual executing this Agreement on behalf of Client represents and warrants to Gilbert that he or she is duly authorized and has the legal capacity to execute and deliver this Agreement on behalf of Client, and that the Agreement is binding upon Client.

8.10 The Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same agreement.