Effective: January 1st, 2022
Evolved Strategic Marketing, LLC, a Florida Limited Liability Company, located at 630 Chestnut St STE 200 Clearwater, Florida 33756 (“Service Provider”) provides marketing services to their clients that helps them increase their online presence and improve the customer journey.
This Terms and Conditions recites how Service Provider operates in corellation with the client (“Client“).
WHEREAS, Service Provider is in the business of providing digital marketing services to increase the online presence of Client as outlined in the Proposal provided to Client.
WHEREAS, Client wishes to retain Service Provider to provide the services set forth in their specific Proposal and in any applicable Statement of Work (the “Services”).
NOW, THEREFORE, in consideration of the above Recitals that are made part of the Agreement, and the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Service Provider Services and Responsibilities.
1.1 Service Provider Services. Service Provider shall provide to Client the services (the “Services“) set forth in one or more statements of work to be issued by Client and accepted by Service Provider (each, a “Statement of Work“). The initial accepted Proposal is attached hereto. Additional Statements of Work shall be deemed accepted and incorporated into the Agreement only if signed by Client and countersigned by the Service Provider Contract Manager (as defined in 1.3(a)(i), below). Service Provider shall provide the Services in accordance with the terms and subject to the conditions set forth in the relevant Statement of Work and the Agreement and in a professional and diligent manner consistent with industry standards and good business practice.
1.2 Time of the Essence. Subject to Client’s timely cooperation in accordance with 2.1(c), Service Provider acknowledges that time is of the essence with respect to Service Provider’s obligations hereunder and that prompt and timely performance of all such obligations is strictly required.
1.3 Service Provider Contract Manager and Personnel.
(a) Service Provider shall:
(i) appoint an employee to serve as the primary contact with respect to the Agreement who will have the authority to act on behalf of the Service Provider in connection with matters pertaining to the Agreement (the “Service Provider Contract Manager“);
(ii) hire, supervise, direct, and discharge all employees and Permitted Third Party Service Providers (as defined in 1.3(e) below) (collectively, the “Service Provider Personnel“) necessary to perform the Services, each of whom shall be suitably skilled, experienced and qualified; and
(iii) upon reasonable request of Client, promptly replace the Service Provider Contract Manager and any other Service Provider Personnel.
(b) Service Provider shall comply with all applicable laws in its performance of the Services.
(c) Service Provider shall be responsible for the payment of all compensation owed to the Service Provider Personnel, including, if applicable, the payment and withholding of social security and other payroll taxes, withholding of income taxes, unemployment insurance, workers’ compensation insurance payments, and disability benefits.
(d) Service Provider shall obtain Client’s prior written approval, which shall not be unreasonably withheld or delayed prior to entering into agreements with or otherwise engaging any person who is not a Service Provider employee, including any independent consultants, contractors, subcontractors, or affiliates of Service Provider (each such approved third party, a “Permitted Service Provider Subcontractor“), to provide any Services or deliverables to Client in connection with the digital marketing campaign (the “Campaign”). Client’s approval shall not relieve Service Provider of its obligations under the Agreement, and Service Provider shall remain fully responsible for the performance of each such Permitted Third Party Service Provider and its employees and for their compliance with all the terms and conditions of the Agreement as if they were Service Provider’s own employees. Nothing contained in the Agreement shall create any contractual relationship between Client and any Service Provider subcontractor or supplier.
(e) All persons employed by Service Provider in connection with the Services shall either be employees of Service Provider or consultants or independent contractors retained by Service Provider. Service Provider shall be solely responsible for complying with all laws and collective bargaining agreements affecting such persons.
(f) Service Provider shall require each Permitted Third Party Service Provider to be bound in writing by the confidentiality and intellectual property assignment or license provisions of the Agreement, and, upon Client’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Client.
1.4 No Exclusivity. Service Provider retains the right to perform the same or similar type of services for third parties in Client’s industry during the Term of the Agreement.
1.5 Status Reports. Through the Dashboard, Client shall have access to the status of work completed. On Client’s reasonable request, Service Provider shall also provide written status reports.
1.6 Meetings with Client. On Client’s reasonable request, the Service Provider Contract Manager shall attend, and shall cause any relevant Service Provider Personnel to attend, in-person, if practical and agreed to by Service Provider, or telephonic meetings with Client Contract Manager (or its designee) to discuss the Services or the Campaign.
1.7 Restrictions on Expenditures. Subject to 4.1, Service Provider shall not incur any cost or make expenditure in connection with the Campaign or any Service without Client’s prior written approval.
1.8 Compliance with Laws. Service Provider shall at all times comply with all applicable federal, state, and local laws, ordinances, regulations, and orders that are applicable to the Agreement and its performance hereunder. Without limiting the generality of the foregoing, each party shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct that portion of its business relating to the exercise of its rights and the performance of its obligations under the Agreement.
1.9 Compliance with Industry Standards. Service Provider shall comply with digital marketing industry standards and self-regulatory guidelines and best practices in providing the Services.
2. Client Obligations and Responsibilities.
2.1 Client shall:
(a) Appoint and, in its reasonable discretion, replace a Client representative to serve as the primary contact with respect to the Agreement, which representative will have the authority to act on behalf of Client with respect to matters pertaining to the Agreement (the “Client Contract Manager“).
(b) Provide copies of or access to Client’s information, documents, samples, products, or other material (collectively, “Client Materials“) as Service Provider may request in order to carry out the Services in a timely manner, and ensure that they are complete and accurate in all material respects.
Client and its licensors are and shall remain the sole and exclusive owner of all right, title, and interest in and to all Client Materials, including any and all trade secrets, trademarks, domain names, original works of authorship and related copyrights, and any other intangible property in which any person holds proprietary rights, title, interests, or protections, however arising, pursuant to the laws of the United States (collectively “Intellectual Property“) therein. This shall include all applications, registrations, renewals, issues, reissues, extensions, divisions, and continuations in connection with any of the foregoing and the goodwill connected with the use of and symbolized by any of the foregoing.
(c) Respond to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform the Services in accordance with the requirements of the Agreement within five (5) business days of the request.
3. Intellectual Property Rights; Ownership.
3.1 License to Certain Client Intellectual Property.
(a) Subject to and in accordance with the terms and conditions of the Agreement, Client grants Service Provider a limited, non-exclusive, royalty-free, non-transferable, and non-sublicensable, worldwide license during the Term to use Client’s Intellectual Property solely to the extent necessary to provide the Services to Client.
(b) Client grants no other right or license to any Client Intellectual Property to Service Provider by implication, estoppel, or otherwise. Service Provider acknowledges that Client owns all right, title, and interest in, to, and under the Client’s Intellectual Property and that Service Provider shall not acquire any proprietary rights therein. Any use by Service Provider or any affiliate, employee, officer, director, partner, member, shareholder, agent, attorney, third-party advisor, successor or permitted assign (collectively “Representatives“) of Service Provider of any of Client’s Intellectual Property and all goodwill and other rights associated therewith shall inure to the benefit of Client.
3.2 Ownership of and License to Deliverables.
(a) Client is and shall be, the sole and exclusive owner of all right, title, and interest in and to all documents, work product, and other materials that are delivered to Client hereunder by or on behalf of Service Provider in connection with the Campaign or developed or created in the course of performing the Services, including all Intellectual Property therein (collectively, the “Deliverables“). Service Provider acknowledges and will cause Service Provider Personnel to agree that with respect to any copyrights in any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. § 101, Client shall own the copyrights in such Deliverables as a “work made for hire” for Client. With respect to any of the Deliverables that do not constitute a “work made for hire,” Service Provider hereby irrevocably assigns and shall cause the Service Provider Personnel to irrevocably assign to Client, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables. The Service Provider shall cause the Service Provider Personnel to irrevocably waive, to the extent permitted by applicable law, any and all claims such Service Provider Personnel may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverables.
(b) Upon the reasonable request of Client, Service Provider shall, and shall cause the Service Provider Personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect, or record its rights in or to any Deliverables.
4. Fees and Expenses; Payment Obligations.
4.1 Fees and Expenses.
(a) In consideration of the provision of the Services and the rights granted to Client under the Agreement, Client shall pay Service Provider:
(b) Client agrees to pay Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services.
(c) Service Provider shall charge the monthly fee on the same day of each month.
(d) Payment to Service Provider of the fees set forth in 4.1(a)(i) and 4.1(a)(ii) and the payment of expenses pursuant to 4.1(b) shall constitute payment in full for the performance of the Services, and Client shall not be responsible for paying any other fees, costs, or expenses.
(e) Payment to Service Provider is non-refundable.
4.2 Payment. Client shall pay all properly invoiced amounts due to Service Provider within ten (10) days after Client’s receipt of such invoice, except for any amounts disputed by Client in good faith and in accordance with 4.4.
4.3 Taxes. All fees payable by Client under the Agreement are inclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on such amounts. Service Provider shall be responsible for any taxes imposed on, or with respect to, Service Provider’s income, revenues, gross receipts, personnel, or real or personal property, or other assets. Client shall be solely responsible for the payment of any sales and use taxes assessed against the sale of Client’s goods and services.
4.4 Monthly Charge Disputes. Client shall notify Service Provider in writing of any dispute with a monthly charge (along with substantiating documentation) within five (5) business days from the Client’s receipt of the charge. Client will be deemed to have accepted all charges for which Service Provider does not receive timely notification of dispute and shall pay all undisputed amounts within the period set forth in 4.2. The Parties shall seek to resolve all such disputes expeditiously and in good faith.
4.5 Late Payments. Except for monthly charge payments that Client is disputing under Section 4.4, Client shall pay interest on all late payments, which have not been made within ten (10) business days of the monthly charge date, calculated daily and compounded monthly at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable Law. Client shall also reimburse Service Provider for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
5. Representations, Warranties, and Certain Covenants.
5.1 Service Provider represents, warrants, and covenants to Client that:
(a) it shall comply with, and ensure that all Service Provider Personnel and Permitted Third Party Service Providers comply with, all specifications, rules, regulations, and policies of Client that are communicated to Service Provider in writing.
(b) Client will receive good and valid title to all Deliverables, free and clear of all encumbrances and liens of any kind;
(c) to the Knowledge of Service Provider, none of the Services, Deliverables, or Client’s use thereof infringe or will infringe any registered Intellectual Property of any third party arising under the laws of the United States, and, as of the date hereof, there are no pending or, to Service Provider’s knowledge, threatened claims, litigation, or other proceedings pending against Service Provider by any third party based on an alleged violation of such Intellectual Property, in each case, excluding any infringement or claim, litigation or other proceedings to the extent arising out of (i) any Client Materials or any instruction, information, designs, specifications, or other materials provided by Client to Service Provider, (ii) use of the Deliverables in combination with any materials or equipment not supplied or specified by Service Provider, if the infringement would have been avoided by the use of the Deliverables not so combined, and (iii) any modifications or changes made to the Deliverables by or on behalf of any person other than Service Provider. Service Provider’s sole liability and Client’s sole and exclusive remedy for Service Provider’s breach of this 5.1(c) are Service Provider’s obligations and Client’s rights under 6.2;
(d) to the Knowledge of Service Provider, no Deliverables provided in electronic form by Service Provider to Client contain or will contain any (i) trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access or to disable, erase, or otherwise harm any computer, systems or software, or (ii) any time bomb, drop dead device or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of a person other than an authorized licensee or owner of a copy of the program or the right and title in and to the program.
5.2 NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION 5, (A) NEITHER PARTY TO THE AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 5.
6.1 Client Indemnification Obligations. Client shall defend, indemnify, and hold harmless Service Provider, and its officers, directors, employees, agents, Affiliates, successors, and permitted assigns (collectively, “Service Provider Indemnified Party“), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses“) , that are incurred by Service Provider Indemnified Party arising out of or resulting from any third-party Claim or direct Claim alleging:
(a) material breach by Client or its Personnel of any representation, warranty, covenant, or other obligations set forth in the Agreement;
(b) negligence or more culpable act or omission of Client or its Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under the Agreement; and
(c) that any Client Materials or Client Intellectual Property or Service Provider’s receipt or use thereof in accordance with the terms of the Agreement infringes any Intellectual Property of a third party
6.2 Service Provider Indemnification Obligations. Service Provider shall defend, indemnify, and hold harmless Client, and its officers, directors, employees, agents, successors, and permitted assigns (collectively, “Client Indemnified Party“), from and against any and all Losses, arising out or resulting from any third-party Claim or direct Claim alleging:
(a) material breach by Service Provider or its Personnel of any obligations set forth in the Agreement;
(b) negligence or more culpable act or omission of Service Provider Indemnifying Party or its Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under the Agreement;
(c) that any of the Services or Deliverables or Client’s receipt or use thereof infringes any Intellectual Property of a third party.
6.3 Exceptions and Limitations on Indemnification.
(a) Notwithstanding anything to the contrary in the Agreement, neither Party is obligated to indemnify or defend the other Party or any of its Representatives against any Losses arising out of or resulting, in whole or in part, from the other Party’s:
(i) willful or reckless or negligent acts or omissions; or
(ii) bad faith failure to materially comply with any of its material obligations set forth in the Agreement.
(b) Notwithstanding anything to the contrary in the Agreement, Client shall have no obligations to indemnify or defend Service Provider or any of its Representatives against any Losses arising out of or resulting, in whole or in part, from infringement claims relating to:
(i) Service Provider’s use of any Client Materials or Client Intellectual Property in combination with any materials or equipment not supplied to Service Provider or specified by Client in writing, if the infringement would have been avoided by the use of the Client Materials or Client Intellectual Property not so combined; or
(ii) any modifications or changes made to the Client Materials or Client Intellectual Property by or on behalf of any person other than Client or Client Personnel.
(c) Notwithstanding anything to the contrary in the Agreement, Service Provider shall have no obligations to indemnify or defend Client or any of its Representatives against any Losses arising out of or resulting, in whole or in part, from infringement claims relating to:
(i) any Client Materials or any instruction, information, designs, specifications, or other materials provided by Client in writing to Service Provider;
(ii) Client’s use of the Deliverables in combination with any materials or equipment not supplied to Client or specified by Service Provider in writing, if the infringement would have been avoided by the use of the Deliverables or Intellectual Property of Service Provider not so combined; or
(iii) any modifications or changes made to the Deliverables by or on behalf of any person other than Service Provider or Service Provider Personnel.
6.4 Indemnification Procedures. A party seeking indemnification under this 6 (the “Indemnified Party“) shall give the Party from whom indemnification is sought (the “Indemnifying Party“): (a) prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation, at the Indemnifying Party’s expense, in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
6.5 EXCLUSIVE REMEDY. EXCEPT FOR THE EQUITABLE REMEDIES AVAILABLE TO THE PARTIES SET FORTH IN 10.8, THIS 6 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY OF EACH INDEMNIFIED PARTY FOR ANY DAMAGES COVERED BY THIS SECTION 6.
7. Limitation of Liability.
7.1 NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 MAXIMUM LIABILITY. EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO SERVICE PROVIDER PURSUANT TO THE AGREEMENT.
8. Confidentiality. From time to time during the Term, either Party (as the “Disclosing Party“) may disclose or make available to the other Party (as the “Receiving Party“) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of the Agreement, whether orally or in written, electronic or other form or media, and, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information does not include information that at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 9 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to applicable Law. The Receiving Party (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under the Agreement; and (z) not disclose any such Confidential Information to any person, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. The Receiving Party shall be responsible for any breach of this Section 9 caused by any of its Representatives. At any time during or after the Term, at the Disclosing Party’s written request, the Receiving Party and its Representatives shall, pursuant to 10.4, promptly return all Confidential Information and copies thereof that it has received under the Agreement.
9. Term; Termination.
9.1 Term. The term of the Agreement commences on the Effective Date of your proposal and continues until completion of the Services as per terms of the proposal unless it is earlier terminated in accordance with the terms of the Agreement (the “Term“).
9.2 Termination for Cause.
(a) Either Party may terminate their Agreement, effective upon written Notice, to the other Party (the “Defaulting Party“) if the Defaulting Party:
(i) materially breaches the Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure (other than a failure by Client to make timely payments (a “Payment Failure“), which is separately addressed in 10.2(b)), the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach;
(ii) becomes insolvent or is generally unable to pay its debts as they become due;
(iii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law;
(iv)makes or seeks to make a general assignment for the benefit of its creditors;
(v) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
(vi) is dissolved or liquidated; or
(vii) is unable to perform its obligations under the Agreement due to the occurrence of a Force Majeure Event that lasts for more than thirty (30) consecutive days.
(b) Service Provider may terminate the Agreement, effective upon written Notice to Client if:
(i) a Payment Failure by Client continues for thirty (30) days after Client’s receipt of written notice of nonpayment; or
(ii) within any three-month period, two or more Payment Failures occur.
9.3 Termination without Cause. Service Provider may terminate the Agreement or any Proposal on thirty (30) business days’ prior written notice to Client.
9.4 Effect of Expiration or Termination.
(a) Expiration or termination of the Agreement will not affect any rights or obligations that:
(i) are to survive the expiration or earlier termination of the Agreement; and
(ii) were incurred by the Parties prior to such expiration or earlier termination.
(b) Upon the expiration or termination of the Agreement for any reason, each Party shall promptly:
(i) return to the other Party all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other Party’s Confidential Information;
(ii) permanently erase all of the other Party’s Confidential Information from its computer systems, and
(iii) certify in writing to the other Party that it has complied with the requirements of this clause.
(c) Upon expiration or termination of the Agreement for any reason, Service Provider shall:
(i) promptly deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid and all Client Materials; and
(ii) provide reasonable cooperation and assistance to Client upon Client’s written request and at Client’s expense in transitioning the Services to an alternate Service Provider.
(d) In no event shall Client be liable for any Service Provider Personnel termination costs arising from the expiration or termination of the Agreement.
(e) Subject to 10.4(a), the Party terminating the Agreement, or in the case of the expiration of the Agreement, each Party, shall not be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of the Agreement. Termination of the Agreement will not constitute a waiver of any of either Party’s rights, remedies, or defenses under the Agreement, at law, in equity or otherwise.
9.5 Notice of Termination. The Agreement shall become effective as of the date of first payment and shall continue until terminated by either party upon not less than 30 days' notice in writing given by either party to the other.
10.1 Entire Agreement. The Agreement, including the related proposal attached hereto, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
10.2 Survival. Subject to the limitations and other provisions of the Agreement, (a) 5 (Representations, Warranties, and Certain Covenants) shall survive the expiration or earlier termination of the Agreement for a period of 12 months after such expiration or termination; and (b) 4 (Fees and Expenses; Payment Obligations), 6 (Indemnification), 7 (Limitation of Liability), 8 (Confidentiality), 9 (Term; Termination), and 10 (Miscellaneous), of the Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of the Agreement for the period specified therein, or if nothing is specified for a period of 12 months after such expiration or termination.
10.3 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the first page of the Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this 10.3.
10.4 Severability. If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
10.5 Amendment and Modification. No amendment to or modification of the Agreement is effective unless it is in writing and signed by an authorized Representative of each Party.
10.6 Waiver. No waiver by either Party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from the Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
10.7 Cumulative Remedies. Except as set forth in 6, all rights and remedies provided in the Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
10.8 Equitable Remedies. Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under 8 and 9 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by Client of any such obligations, Service Provider shall, in addition to any and all other rights and remedies that may be available to Service Provider at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that such Party will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this 10.8.
10.9 Assignment. Neither Party may assign, transfer, or delegate any or all of its rights or obligations under the Agreement, without the prior written consent of the other party; provided, however, that either Party may assign the Agreement to a successor-in-interest by consolidation, merger, or operation of law or to a purchaser of all or substantially all of the Party’s assets. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. The Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
10.10 No Third-Party Beneficiaries.
(a) Subject to 10.10(b), the Agreement benefits solely the Parties to the Agreement and their respective permitted successors and assigns, and nothing in the Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
(b) The parties hereby designate the Client Indemnified Parties and Service Provider Indemnified Parties as third-party beneficiaries of 6 of the Agreement having the right to enforce 6.
10.11 Choice of Law. The Agreement and all related documents including the proposal attached hereto, and all matters arising out of or relating to the Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Florida, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Florida.
10.12 Arbitration. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
10.13 WAIVER OF JURY TRIAL. EACH PARTY VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE AGREEMENT, INCLUDING ANY PROPOSALS, AND APPENDICES ATTACHED TO THE AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
10.14 Attorney’s Fees and Costs. In the event any party to the Agreement shall be required to initiate legal proceedings to enforce performance of any term or condition of the Agreement, including, but not limited to, the interpretation of any term or provision hereof, the payment of moneys or the enjoining of any action prohibited hereunder, the prevailing Party shall be entitled to recover from the non-prevailing Party such sums, in addition to any other damages or compensation received, as well as reimbursement will for reasonable attorneys’ fees and all court costs (whether taxable or not taxable) incurred on account thereof (including, without limitation, the costs of any appeal) notwithstanding the nature of the claim or cause of action asserted by the prevailing party.
10.15 No Guarantees. Service Provider does not warrant or guaranty any particular results from the work performed in accordance with the Agreement and the Proposal.
10.16. No refunds. Payments referred to herein shall not be refundable under any circumstances, including but not limited to the termination of the Agreement for whatever reason.
10.17 Relationship of Parties. Nothing in the Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Service Provider is an independent contractor pursuant to the Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.