THIS Terms of Service Agreement is entered into by and between Creative Sarasota, LLC having its principal place of business at 2772 Lench Place, Sarasota, FL 34235 (“Company”) and the client (“Client”) as defined in the applicable invoice (“Invoice”) as of the date the Invoice is paid by Client (the “Effective Date”). This Terms of Service Agreement, together with the applicable Invoice, collectively form the “Agreement” and sets forth the terms and conditions under which Company will provide the Services (as defined below) to Client. In the event of any conflict between this Terms of Service Agreement and the Invoice, the Invoice shall prevail to the extent of such conflict. Company and Client may be referred to herein individually as “a Party” and together as “the Parties” herein.
WHEREAS, the Company provides certain photography, website design and development, website content maintenance, WordPress maintenance, graphic design for digital, web, and print production, services related to website hosting and support, and other management, maintenance and support services; and
WHEREAS the parties desire to enter into this Agreement pursuant to which Company will provide some or all of such services to the Client;
NOW, THEREFORE, in consideration of the mutual promises and the covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each party to the other, the parties, intending to be legally bound by the terms of this Agreement, hereby agree as follows:
a.i Company hereby agrees to provide the services (hereafter the “Services”), to Client, as specifically requested and detailed in the applicable Invoice.
a.ii Client grants to Company a non-exclusive license to use the Client’s name, trademarks, copyrights, logos and any other marketing materials (“Marks”) solely in connection with providing the Services to Client. Company acknowledges that ownership of the Marks belongs to the Client and that all use of the Marks by Company shall inure to the benefit of and be on behalf of the Client.
a.iii Client will be responsible for contracting directly with its own third party product vendors to supply any necessary hardware, software, products and/or services (“Third Party Products”) that are not specifically provided by Company per the terms of the applicable Invoice. Client will make vendor-specific information available to Company to facilitate technical support issues. However, Client understands that Company cannot modify Third Party Products to correct defects or inter-operability issues. If Third Party Products purchased by Client are faulty, Company may work on Client’s behalf, at Company’s normal hourly rates, in an attempt to help Client resolve such faults.
a.iv Company will work together with the Client to set a reasonable timeline for the Services. Any delays in approvals or payment, or changes to plans or materials will alter this timeline. Under no circumstances will Company be responsible or liable in any matter for delays and changes to the timeline arising out of or due to any unforeseen circumstances that are not in its control or actions or inactions of Client, including but not limited to, delays due to receipt of data or content from or on behalf of Client; delays in Client decisions related to Company’s efforts; problems with Third Party Products; delays due to changes to Client’s systems, network environment, platforms, or operations. If such issues are discovered while performing the Services, Company will bring these to Client’s attention and, where possible and if requested, provide additional services to assist Client with resolving the impact to the delivery of the Services.
a.v Company may use or incorporate third party companies to provide software, applications, products or services hereunder (collectively, “Third Party Service Providers”) as part of the Services provided hereunder. Company shall support and maintain services from any Third Party Service Providers to the same extent as the Company is obligated to do so under this Agreement were the services provided directly by the Company.
a.vi If Client requests additional services beyond what was quoted in the applicable Invoice, a separate Invoice will be provided, detailing those services and prices. The additional services will not be rendered until and unless the additional Invoice is signed.
II TERM OF AGREEMENT
II.1 Term. The term of this Agreement will begin on the Effective Date and continue through completion of the applicable Invoice term.
a.i Either party may terminate this Agreement upon sixty (60) days written notice for any reason or no reason. In the event Client terminates per this Section 2.2 (i), Client shall remain obligated to pay to Company all amounts due for the remaining Term of the Agreement and/or applicable Invoice.
a.ii Either party may terminate this Agreement upon thirty (30) days written notice if the other party materially breaches any provisions of this Agreement, and such breach has not been cured after notice of the same within such thirty (30) day period.
a.iii Company may suspend performance of some or all Services under this Agreement immediately upon written notice to Client if Client neglects to make any required payments when due.
a.iv Notwithstanding anything to the contrary in this Agreement, Company may immediately terminate, suspend, or amend this Agreement, without liability: (a) to comply with any order issued or proposed to be issued by any governmental agency; (b) to comply with any provision of law; or (c) if performance of any term of this Agreement by either Party would cause it to be in violation of law.
a.v Company shall also have the right to immediately terminate the Agreement if the Client discontinues business, or becomes insolvent, or if any action relating to the bankruptcy or insolvency of the Client is instituted.
II.3 Effects of Termination. This Agreement and the rights granted are effective until terminated. Sections which by their terms contemplate survival will survive any termination of this Agreement.
II.4 Transition Assistance. At Client’s sole cost and expense, in the event of expiration or termination of this Agreement for any reason other than an uncured material breach or non-payment of undisputed amounts by Client, Company shall fully cooperate with Client to facilitate and complete the prompt and orderly transition to another provider to provide replacement or substitute services, as applicable. Company may require that Client pay for transition assistance in advance. The transition assistance shall continue until such time the transition has been successfully completed and concluded but in no event for more than three months from the effective date of termination, unless agreed upon by Company. The transition assistance will be deemed by the parties to be governed by the terms and conditions of this Agreement, except for those terms or conditions that do not reasonably apply to such transition assistance. Company shall be paid at the rates set forth in this Agreement or as otherwise mutually agreed to by the parties.
III INDEPENDENT CONTRACTOR
III.1 Independent Contractor. It is the express intention and understanding of the parties that Company is an independent contractor and not an employee, agent, or partner of Client. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Client and Company.
III.2 Non-exclusivity. This is a non-exclusive arrangement, and Company may provide or offer its services freely at any time to any other client or business.
IV.1 Compensation. In consideration for the Services performed by Company during the Term, Client agrees to pay Company such compensation as described further in the applicable Invoice (“Fees”).
IV.2 Company Costs and Expenses. Client will reimburse Company for pre-approved expenses incurred by Company in connection with the Services.
IV.3 Payment Terms. If Client fails to pay Company within five (5) business days from the date payment is due, then Company may, without limiting and in addition to its other available remedies, assess a late payment charge at the rate of two percent (2.0%) per month or the maximum rate allowed by applicable law, whichever is the lesser. In the event Client fails to make a payment, Client will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Company in collecting such amounts.
IV.4 No Refunds. Client acknowledges and agrees that there shall be no refunds under this Agreement for any reason, any Service delivered or scheduled to be delivered, whatsoever, including termination of this Agreement regardless of the cause of such termination. In case Client requests early termination for any reason whatsoever, Client shall still be liable for all Fees due for the entire Term. Client understands and agrees that certain of the Services it is receiving include annual subscriptions with Third Party Service Providers, and Client accepts responsibility for payment of the entire subscription period.
IV.5 Taxes. Unless otherwise specified in an Invoice, Client shall be solely responsible for any applicable sales, use or any other taxes where services are consumed (collectively “Taxes”) payable under, or arising out of, or in connection with, this Agreement excluding taxes based on Company’s income. Any prices provided by Company are exclusive of Taxes.
V REPRESENTATIONS AND WARRANTIES
V.1 Each party represents and warrants that: (a) it has full power and authority to enter into and perform this Agreement; (b) execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a Party or by which it is otherwise bound; (c) that it will perform its obligations or exercise its rights hereunder in conformance with all applicable laws, rules, regulations and guidelines; and (d) there is no pending or threatened litigation that would have a material adverse impact on its performance under this Agreement.
V.2 Client further warrants that it owns or controls all right, title, and interest in and to the Marks and that it will not infringe upon or violate the intellectual property rights of others.
V.3 Company further represents and warrants that Company will provide the Services in material conformance with the specifications of the applicable Invoice, and in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services and that each of its employees assigned to perform Services under this agreement shall have the proper skill, training and background to perform in a competent and professional manner.
V.4 Company is not responsible or liable in any way for any Third Party Products, even if Company endeavors to assist Client with resolving problems or issues with Third Party Products.
V.5 Except as otherwise set forth herein, Company’s services are provided on an “as is” and “as available” basis, and Client’s use of Company’s services is at its own risk. Except as otherwise explicitly set forth herein, Company does not make, and hereby disclaims, any and all express, implied or statutory warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement, compliance with law, security, absence of viruses or other malicious software, and any warranties arising from a course of dealing, usage or trade practice. Furthermore and without limitation, Company does not warrant that the use of Company’s Services will result in any particular results, that the Services will be error-free or uninterrupted, or that its security measures will prevent third party access to Client Data (as defined herein).
V.6 Client agrees that Company has made no agreements, representations or warranties other than those expressly set forth in this Agreement, and that no future agreement, representation or warranty of Company with regard to Services provided under this agreement shall be effective unless expressly stated in an amendment to this Agreement signed by both parties.
VI Limitation of Liability
VI.1 It is expressly agreed that in no event shall either Party, or any officers, directors, stockholders, agents, and employees, be liable for any special, indirect, consequential, or exemplary damages, including but not limited to, loss of profits or revenues, loss of use, or loss of information or data, whether a claim for any such liability or damages is premised upon breach of contract, breach of warranty, negligence, strict liability, or any other theory of liability, even if Company has been apprised of the possibility or likelihood of such damages occurring.
VI.2 Each Parties’ aggregate liability under this agreement, regardless of theory of liability, shall be limited to the aggregate Fees paid or payable under this Agreement for the twelve (12) month period preceding the event first giving rise to the claim.
VI.3 In the event of a defect in the Services, Company may either: (A) re-perform the Services; or (B) fully or partially credit or refund the Fees paid by Client for such Services.
VI.4 If Third Party Service Providers cease providing services to Company pursuant to their agreements, or revises their terms of service, then the respective obligations of Company hereunder shall terminate or be modified according to the third party terms, at Company’s option, and Company shall incur no associated liability to Client with respect to such termination or modification, except that the parties shall work together in good faith to find suitable replacement providers.
VI.5 Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, Company’s liability shall be limited to the maximum extent permitted by law.
VII.1 Client agrees to indemnify, defend and hold harmless Company and each of its respective agents, officers, directors, employees and affiliates from and against any and all claims, suits, liability, action, proceeding, loss, expense, damages and/or costs (including without limitation reasonable attorney’s fees and costs) (collectively, “Claims”) resulting directly or indirectly from: (a) Client’s breach of this agreement, any warranty and/or representation herein; (b) any violation by Client of applicable federal, state or local laws or regulations; (c) or Client’s gross negligence.
VII.2 Company agrees to indemnify, defend and hold harmless Client and each of its respective agents, officers, directors, employees and affiliates from and against any and all Claims resulting directly or indirectly from: (a) Company’s breach of this agreement, any warranty and/or representation herein; (b) any violation by Company of applicable federal, state or local laws or regulations; (c) any claim by a third party that Client’s authorized use of the Services infringes a third party’s patent, copyright, trademark, trade secret or other intellectual property rights; or (d) Company’s gross negligence,
VII.3 The indemnifying party may not enter into any settlement that would admit any wrongdoing by or impose any liability on the part of the indemnified party, or impose any obligation on the indemnified party, without the indemnified party’s prior written consent.
VII.4 Each party’s indemnification obligations under this Agreement will be reduced to the extent the other party is held to have been contributorily negligent or otherwise at fault. Any claim or action against Company must be brought within twelve (12) months after the event first giving rise to the claim. Each party shall have a duty to mitigate its damages for which the other party is or may be responsible. The foregoing obligations are conditioned on the indemnified Party: (a) giving the indemnifying Party notice of the relevant claim; (b) cooperating with the indemnifying Party, at the indemnifying Party’s expense, in the defense of such claim; and (c) giving the indemnifying Party the right to control the investigation, defense and settlement of any such claim, except that the indemnifying Party will not enter into any settlement that affects the Indemnified Party’s rights or interest without the indemnified Party’s prior written approval. The Indemnified Party will have the right to participate in the defense at its own expense. Notwithstanding the foregoing, the indemnifying Party shall be relieved from its indemnification obligation only to the extent its ability to defend or settle the claim has been prejudiced as a result of late notice or lack of cooperation with respect to the claim. Company will have the exclusive right to defend any such Infringement Claim and make settlements thereof at its own discretion, and Client may not settle or compromise such Infringement Claim, except with prior written consent of Company.
VIII.1 Either party (the “Disclosing Party”) may from time to time disclose Confidential Information to the other party (the “Recipient”). “Confidential Information” is all nonpublic information concerning the business, technology, and strategies of the Disclosing Party which is conveyed to the Recipient orally or in tangible form and is either marked as “confidential” or which, due to the circumstances surrounding its disclosure or its nature or sensitivity, should have been understood by the Recipient as intended to be treated as “confidential” and subject to the undertakings of this Agreement. Recipient will keep in confidence and trust and will not disclose or disseminate, or permit any employee, agent or other party working under Recipient’s direction to disclose or disseminate the existence, source, content or substance of any Confidential Information to any other party. Recipient shall use Confidential Information of the Disclosing Party only as necessary for the performance of this Agreement.
VIII.2 The commitments in this Agreement will not impose any obligations on Recipient with respect to any portion of the received information which: (i) is now generally known or available or which hereafter, through no act or failure to act on the part of Recipient, becomes generally known or available; (ii) is rightfully known to Recipient at the time of receiving such information; (iii) is furnished to Recipient by a third party without restriction on disclosure and without a breach by such third party of any confidentiality undertaking with respect thereto; (iv) is independently developed by Recipient or its representatives without the use of Confidential Information; or (v) is required to be disclosed by operation of law or by an instrumentality of the government, including but not limited to any court, tribunal or administrative agency; provided that, in the case of any disclosure required by court order, the Recipient shall give the Disclosing Party as much advance notice as is reasonably practicable under the circumstances so as to permit the Disclosing Party to take commercially reasonable actions at its own expense to prevent disclosure. Each party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure or use of Confidential Information and that each party may seek, without waiving any other rights or remedies, such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. At Disclosing Party’s option, Recipient shall promptly either destroy all Confidential Information in tangible form in its possession, or return all such copies to Disclosing Party, and in either event provide a written certification confirming the same, promptly upon Disclosing Party’s written request.
VIII.3 Data Security. For purposes of this Agreement, “Client Data” means all personal information, Confidential Information and other sensitive data provided by Client to Company or otherwise transmitted to Company for use in connection with the Services. Company takes commercially reasonable administrative, physical and electronic measures designed to safeguard and protect the Client Data from unauthorized access, use, modification, deletion and/or disclosure. However, Company cannot guarantee that unauthorized third parties will never be able to defeat the security measures or use Client Data for improper purposes. Client understands and agrees that Client provides Client Data at its own risk.
VIII.4 Except as expressly provided herein, the Recipient will not use or disclose any Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent, except disclosure to and subsequent uses by the Recipient’s authorized employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the Receiving Party’s obligations under this Section 8 (Confidential Information). For the avoidance of doubt, and other as may be necessary to provide Services to the Disclosing Party, the Recipient may not use Confidential Information for the purpose of artificial intelligence, artificial intelligence training, machine learning, augmented human intelligence development, algorithm improvement, or similar data aggregation activities without the express written consent of the Recipient. Such uses shall not be deemed related to the performance of this Agreement and expressly prohibited. Subject to the foregoing nondisclosure and non-use obligations, the Recipient agrees to use at least the same care and precaution in protecting such Confidential Information as the Recipient uses to protect the Recipient’s own Confidential Information and trade secrets, and in no event less than reasonable care. Each Party acknowledges that due to the unique nature of the other Party’s Confidential Information, the Disclosing Party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the Disclosing Party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure. Neither Party shall remove or alter any proprietary markings (e.g., copyright and trademark notices) on the other Party’s Confidential Information.
IX.1 All Client Data, information, documents, materials, supplies and equipment (“Client Materials”) provided by Client to Company in connection with this Agreement shall be and remain the property of Client. Client retains all intellectual property rights in such information and materials. Company is granted no right or license to use such information or materials except as follows: Client hereby grants to Company a royalty-free, non-exclusive, revocable, nontransferable, non-sublicensable, limited license to use the Client Materials as appropriate solely to perform the Services and develop and deliver the Deliverables.
IX.2 Client represents and warrants that any and all Client Materials provided by it to Company, is the rightful property of Client or Client has full right to supply such items to Company.
IX.3 Client agrees that, as between Company and the Client, Company shall have sole and exclusive ownership of, and all right, title, and interest in and to, the Company Materials, including the Services, and all modifications and enhancements of the Services (including ownership of all copyrights and other intellectual property rights), subject only to the rights expressly granted to the Client under this Agreement. This Agreement does not provide the Client with title or ownership of any Company Material or Service, but only a limited right to use the same solely upon the terms expressly set forth in this Agreement. For the purpose of clarity, nothing provided by Company under this Agreement, including the Company Materials or Services, is to be considered a “work for hire” and Company does not convey, transfer or assign any right, title and interest it may have now or in the future acquire, including but not limited to all intellectual property rights, to Client. “Company Materials” means all software, updates, photographic assets, manuals, programs, files, reports, analysis, data, programming, design and other materials and information provided through or as part of this Agreement.
IX.4 Conditioned on Client’s full payment of all fees due hereunder, all intellectual property rights in and to all materials that are specifically furnished to Client under this Agreement (“Deliverables”) shall be owned by Client. All other rights are reserved.
IX.5 Feedback. Company may use any reports, comments, ratings, reviews and suggestions in any form regarding the Services that Client provides to Company (collectively, the “Feedback”). Client grants Company a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate and use the Feedback.
IX.6 Client Data. By the nature of this Agreement, Company may have access to Client Data. Client understands and agrees that Company may share Client Data with Third Party Service Providers solely for the purpose of providing the Services hereunder, and such Third party Service Providers will be held to the same standards as stated herein.
IX.6.1 Unless otherwise explicitly stated herein, all Client Data shall remain the property of Client. Archival media containing Client Data shall be used by Company and its Third Party Service Providers solely for back-up purposes.
IX.6.2 Client grants Company the right to use Client Data solely as needed for Company to perform its obligations under this Agreement. However, Client agrees that Company and/or Third Party Service Providers shall have a limited right to use Client Data in the form of aggregate data for any purpose. Prior to any such use, all personally identifiable information shall be removed from such data. The right of Company or its Third Party Service Providers to use aggregate data will survive termination of the Agreement.
IX.6.3 Client understands and agrees that Client is responsible for maintaining and protecting backups of Client Data, as applicable, directly or indirectly processed using the Services and that Company is not responsible for exportation of, the failure to store, the loss, or the corruption of Client Data.
X Non-Solicitation / Business Interference
X.1 Client recognizes Company has proprietary relationships with its employees, consultants and contractors (the “Protected Parties”). During the term of this Agreement and for a period of twenty-four (24) months from the date Company last provides Services to Client, whether under this Agreement, any Invoice or otherwise (the “Restricted Period”), the Client hereby agrees on behalf of itself, and any related parties, entities or subsidiaries, that it will not, without the prior written approval of Company, directly or indirectly:
a.i induce, advise or counsel any Protected Parties to terminate, reduce or modify their relationship with Company
a.ii solicit, recruit, hire, or engage any Protected Parties, or
a.iii otherwise interfere with or damage, or attempt to interfere with or damage, the relationship between Company and any Protected Parties.
X.2 Client is aware that the Protected Parties are bound by certain restrictions and obligations that, among other things, prevent them from working for Company’s current or previous clients and using, disclosing, relying upon or possessing any of Company’s Confidential Information. Client also understands that any violation of those restrictions may subject such Protected Parties to, among other things, injunctive and monetary remedies (including attorney’s fees). Client shall not at any time, directly or indirectly, either for itself or on behalf of any third party, induce, assist or cause any Protected Parties to breach, or otherwise fail to comply with, any restrictive covenant made by such Protected Parties to Company.
X.3 Client agrees that, in addition to any other remedies that may be available, without the necessity of posting bond or proving actual damages, Company shall be entitled to seek injunctive relief against the threatened breach of this Section or the continuation of any such breach by the Client, without limiting any other rights and remedies to which the Company may be entitled to at law, in equity or under this Agreement.
XI GENERAL PROVISIONS
XI.1 Insurance. Each party shall be responsible for procuring and maintaining for itself and its employees all insurance coverages as appropriate for its business and required by Federal or State law, including workers’ compensation insurance.
XI.2 No Publicity. During the Term of this Agreement and at all times after the termination or expiration of this Agreement, neither party shall make any media release or other public announcement relating to or referring to this Agreement without the other party’s prior written consent (email acceptable).
XI.3 Export Control Law. The Services, and any software or documentation delivered to Client under this Agreement are subject to export control laws and regulations and may also be subject to import and export laws of the jurisdiction in which it was accessed, used, or obtained, if outside those jurisdictions. Client agreed that it shall abide by all applicable export control laws, rules, and regulations applicable to the Services, software and documentation. Client represents and warrants that it is not located in or under the control of or a resident of any country, person, or entity prohibited to receive the Services, software or documentation due to export restrictions and that Client will not export, re-export, transfer, or permit the use of the Services, software or documentation, in whole or in part, to or in any of such countries or to any of such persons or entities.
XI.4 Government Use. Company’s Services, software and documentation, as applicable, were developed exclusively at private expense and are a “commercial item” as defined in Federal Acquisition Regulation (“FAR”) 2.101, and any supplement is provided with no greater than RESTRICTED RIGHTS. Such Services, software and documentation, and related items consist of “commercial computer software,” “commercial computer software documentation,” and commercial technical data as defined in the applicable acquisition regulations, including FAR 2.101 and FAR Part 12. Use, duplication, release, modification, transfer, or disclosure (“Use”) of the Services, software and documentation are restricted by this Agreement and in accordance with Defense Federal Acquisition Regulation Supplement (“DFARS”) Section 227.7202 and FAR Section 12.212, and the Services, software and documentation are licensed (i) only as commercial items; and (ii) with only the rights granted to commercial end users pursuant to this Agreement. Such Use is further restricted by FAR 52.227-14, 252.227-7015, or similar acquisition regulations, as applicable and amended. Except as described herein, all other Use is prohibited. This Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause addressing government rights under this Agreement or any other contract under which the Services, software or documentation is acquired or licensed.
XI.5 Assignment. Neither party shall assign this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement, without the other party’s consent, in the event of a merger, acquisition, or sale of all or substantially all of its assets.
XI.6 Notices. Any notices or communication under this Agreement shall be in writing and by electronic mail. Each party may change its email address for receipt of notice by giving notice of such change to the other party. For contractual purposes, Company and Client consent to receive communications from each other in an electronic form, and Client agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing.
XI.7 Waiver. The failure of either party hereto to insist in any one or more instances upon strict compliance with the performance of this Agreement or to take advantage of any respective rights hereunder shall not be construed to be a waiver of such provisions or the relinquishments of such rights in other instances, but the same shall continue and remain in full force and effect.
XI.8 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Florida. For any dispute, the Parties agree to first attempt to resolve the dispute informally. In the event that the Parties are unable to resolve a dispute after sixty (60) days, the parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief which may be brought in federal or state courts situated in Sarasota County, Florida) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration under the Optional Expedited Arbitration Procedures then in effect for JAMS. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Sarasota County, Florida, unless the Parties agree otherwise. The arbitrator, witness, party representative, counsel, expert or staff may participate by video conference where such participant (when participating) can be heard and seen (i.e., Zoom). Each Party will be responsible for paying its applicable JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. Nothing in this Section shall be deemed as preventing a Party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its confidential information, intellectual property rights or other proprietary rights.
XI.9 Expenses and Attorneys’ Fees: In the event any action is brought to enforce any provision of the Agreement or to declare a breach of the Agreement, the prevailing party shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby.
XI.10 Binding Agreement. This Agreement shall be binding upon both parties and upon their respective executors, administrators, successors, and assigns.
XI.11 Severability. In the event that any provisions hereof shall be held to be invalid or unenforceable for any reason whatsoever, it is agreed that such invalidity or unenforceability shall not affect any other provision of this Agreement and the remaining provisions shall remain in full force and effect.
XI.12 Entire Agreement. This Agreement supersedes any and all agreements, either oral or written, between the parties hereto with respect to the rendering of services in any manner. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, that are not embodied herein, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding. Any modification of this Agreement will be effective only if it is in writing signed by the parties hereto. No shrink-wrap, click-wrap, click-through, click-accept, online terms or website terms shall modify any of the terms and conditions of this Agreement.
XI.13 No Third-party Beneficiaries: Nothing express or implied in this Agreement is intended to confer, nor shall confer, upon any person or entity other than the parties, their licensors, and their respective successors or assigns any rights, remedies, obligations, or liabilities whatsoever.
XI.14 Advice of Counsel & Authority: Each party acknowledges: (a) having fully read this Agreement in its entirety; (b) having had full opportunity to study and review this Agreement; (c) having been advised that all parties have the right to consult and should consult independent counsel respecting their rights and duties under this Agreement; and (d) having had access to all such information as has been requested. The individuals, corporations or entities entering into this Agreement represent and warrant that they are competent and capable of entering into a binding contract, and that they are authorized to enter into this Agreement on behalf of the parties.
XI.15 Interpretation: Section headings are for reference only, and shall not be construed as substantive parts of this Agreement. Each capitalized term used in this Agreement (including any schedule or exhibit of this Agreement) shall have the meaning attributed to it in any part of this Agreement (including any such schedules or exhibits).
XI.16 Survival: All provisions which by their terms contemplate survival shall survive the termination or expiration of this Agreement regardless of the cause of such termination.
XI.17 Force Majeure: If either party cannot perform any of its obligations (other than payment obligations which are not affected by this provision) because of any act of God, court order, fire, riot, war, or any other causes beyond a party’s reasonable control, and provided further that the party could not have mitigated, avoided or prevented the cause or delay through the exercise of reasonable care and precautions (a “Force Majeure Event”), then the non-performing Party will: (i) immediately notify the other Party; (ii) take reasonable steps to resume performance as soon as possible; and (iii) not be considered in breach during the duration of the Force Majeure Event. In the event a Force Majeure Event continues for a period of ninety (90) days, either party may terminate this Agreement by providing written notice to the other party with no further liability to the other party.
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