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Master Service Agreement

MASTER SERVICE AGREEMENT

Last modified on: September 20, 2022.

This Master Service Agreement for Marketing Services (the “Agreement”) is between MoreKeting (“Consultant”), and the “Client” (together known as the “Parties”), for the performance of said Marketing Services and the production of Deliverables, as described in Statement of Work (“SOW”). The Parties agree as follows:

  1. DEFINITIONS

As used herein and throughout this Agreement:

1.1 “Agreement” means the entire content of this document, the Proposal document(s) (if any), and the SOW, together with any other Supplement, Exhibits, or additional Schedules as may be attached hereto and incorporated herein by reference.

1.2 “Client Content” means all materials, information, photography, writings, and other creative content provided by the Client for use in the preparation of and/or incorporation in the Deliverables.

1.3 “Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law.

1.4 “Deliverables” means the services and work product, as mutually agreed upon by Client and Consultant, to be delivered by Consultant to Client, in the form and media specified in the SOW.

1.5 “Consultant Tools” means all tools developed and/or used by Consultant in performing the Services, including, without limitation, pre-existing and newly developed software including source code, web authoring tools, type fonts, and application tools, together with any other software, or other inventions (whether or not patentable), and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.

1.6 “Final Work” means all materials developed or created by Consultant, or commissioned by Consultant, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including, but not limited to, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, HTML, CSS, Javascript and other website code, modifications to Client Content, and Consultant’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials, and as approved and accepted by Client. It is only considered Final Work to material that has the Client’s approval.

1.7 “Final Deliverables” means the final versions of Deliverables provided by Consultant and approved and accepted by Client.

1.8 “Preliminary Work” means all materials including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents, developed by Consultant and which may or may not be shown and or delivered to Client for consideration.

1.9 “Project” means the out-of-scope work and deliverables not outlined here in this agreement. A separate agreement(s), quote(s), and invoice(s) might be needed for projects.

1.10 “Services” (or “Consultant’s Services”) means all services and the work product to be provided to Client by Consultant as described and otherwise further defined in the Deliverables.

1.11 “Third Party Materials” means proprietary third-party materials which are incorporated into the Final Deliverables, including, but not limited to, stock photography or stock illustrations.

1.12 “Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used to designate the origin or source of goods or services.

1.13 “Acceptance” means that any material or communication has been received and has full acknowledgment.

1.14 “Approval” means that it officially agrees and approves satisfactorily.

 

  1. INTELLECTUAL PROPERTY PROVISIONS

2.1 Client Content. Client Content, including all pre-existing Trademarks and copyright material, shall remain the sole property of Client, and Client shall be the sole owner of all rights in connection therewith. Client hereby grants to Consultant a nonexclusive, nontransferable license to use, reproduce, and modify the Client Content solely in connection with Consultant’s performance of the Consultant’s Services and the production of the Deliverables.

2.2 Third-Party Materials. All Third Party Materials are the exclusive property of their respective owners. Consultant shall inform Client of all Third Party Materials that may be required to perform the Marketing Services or otherwise integrated into the Final Work. Under such circumstances, the Consultant shall inform the Client of any need to license.

2.3 Assignment of Copyrights. Upon completion of the Services and conditioned upon full payment of all fees, costs, and out-of-pocket expenses due, and Client’s approval, Consultant shall assign to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Consultant as part of the approved Final Work and Final Deliverables for use by Client. Consultant shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence all such assignments of intellectual property.

2.4 Assignment of Final Work. Upon completion of the Marketing Services, and subject to full payment of all fees, costs, and expenses due, and Client’s approval, Consultant hereby assigns to Client all rights, titles, and interests, including without limitation, copyright and other intellectual property rights, in and to the Final Deliverables and the Final Work. Consultant agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.

2.5 Consultant Intellectual Property. Consultant retains the copyrights and ownership of all ideas, graphic pieces, designs, methods, and operations of all preliminary work (not approved). The Consultant also retains the copyrights and ownership of Final Work & Final Deliverables until the Client has signed this agreement and any pertaining Non-Disclosure Agreement and/or Non-Compete and conditioned upon full payment of all fees, costs, and out-of-pocket expenses due.

2.6 Intellectual Property Assignment. Except as otherwise provided in this Agreement or in any applicable SOW, and only upon final payment in full, Client shall own all rights to Services and approved work product originally developed for and provided to Client under this Agreement and Consultant agrees to assign all such rights to Client and will obtain all assignments from its employees reasonably required to effect such assignment.  Notwithstanding the above, Consultant shall retain the right to reuse the ideas, concepts, know-how, and techniques derived from the rendering of the Services so long as it does not require the disclosure of any of Client’s Confidential Information and Consultant shall be entitled to any and all protections afforded under State and Federal statutory or common law with respect to any report, a computer program (source code and object code) or programming and/or material documentation, manual, chart, specification, formula, template, system model, copyright, diagram, description, screen display, schematic, tape, license, listing, invention, record or other materials, which it considers proprietary, and any of the foregoing prepared, developed or used by Consultant in the course of completing the Services performed under the terms of this Agreement or any SOW (“Consultant’s Intellectual Property”). In the event (and to the extent) that any deliverable contains any items or elements which are Consultant’s Intellectual Property, Consultant grants to Client an irrevocable, perpetual, royalty-free license to use, execute, display, and/or perform such to the extent it is necessary to fulfill the scope of work described in the applicable SOW(s). Unless otherwise stated in an SOW, the reproduction, distribution, or transfer, by any means or methods, whether direct or indirect, of any of Consultant‘s Intellectual Property, or proprietary information or of its agents or any Licensed Software by the Client is strictly prohibited.

 

  1. FEES

3.1 In consideration of the Services to be performed by Consultant, Client shall pay the Consultant fees in the amounts and according to the Payment Terms and Schedule, as set forth in Provision 12 or addressed on the SOW.

3.2 In the process of creating and completing the Final Work, the Consultant may need to incur expenses including, but not limited to project materials, supplies, models, prototypes, online tools, digital products, subscriptions, shipping, courier, mileage, and out-of-town travel costs such as airline tickets, meals, and hotels, or other Third-Party Materials. The Consultant will make every effort to gain written approval for expenses from the Client before incurring them. Unless explicitly specified in SOW, such expenses are not included as part of this Agreement and Consultant may request reimbursement by Client and the Client is responsible for these expenses.

3.3 In the process of managing marketing services the Consultant will present the Client with different projects that might arise and be needed to improve the Client’s branding and marketing efforts. Projects are to be compensated separately and are not included within the fees here discussed in this document.

 

  1. TIMING AND ACCEPTANCE

4.1 Timing. Consultant shall prioritize the performance of the Services as may be necessary or as agreed upon by the Parties, and will undertake commercially reasonable efforts to perform the Services. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve and accept the Deliverables in writing (which will then become the Final Deliverables) or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Consultant using the Consultant’s specified Project Management System (PMS).

4.2 Acceptance. Client, within up to 3-business-days of receipt of each Deliverable, shall notify Consultant, in writing, of any failure of such Deliverable to comply with the specifications as agreed upon by the Parties, or of any other objections, corrections, changes, or amendments Client wishes to be made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change, or amendment, and the Consultant shall undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes, or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client within said stated time period, the Deliverable shall be deemed accepted, not approved, but Consultant is liberated from any liability in the absence of such notice.

 

  1. CLIENT RESPONSIBILITIES

Client acknowledges that s/he shall be responsible for performing the following in a reasonable and timely manner:

  • Assign one point of contact and one decision maker, even if it is the same person.
  • To provide Consultant documentation or other necessary material or services requested.
  • Coordination and communication of any decision-making.
  • Coordination with parties other than the Consultant.
  • Provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation.
  • Final proofreading pursuant to Provisions 4.1 and 4.2
  • Paying Consultant’s fees on time.

 

  1. RECOGNITION

Consultant retains the right to reproduce, publish and display the Final Deliverables in Consultant’s portfolios and websites, and in galleries, design periodicals, and other media or exhibits for the sole purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Final Deliverables in connection with such uses. Either Party, subject to the other’s written approval, may include a link to the other Party’s website.

 

  1. CONFIDENTIAL INFORMATION

In connection with this Agreement, Client and its employees and agents may have access to private and confidential information owned or controlled by Consultant relating to Consultant’s Intellectual Property, data, equipment, apparatus, programs, software, security keys, specifications, drawings, business information, pricing, strategies, methods, preliminary work, and other data, as well as the existence of any dispute between the parties. Similarly, Consultant and its employees and agents may have access to private and confidential information owned or controlled by Client relating to technical or business information of a proprietary nature or relating to Client’s business operations. All such Consultant information and Client information shall be “Confidential Information” for purposes of this Agreement. The Confidential Information acquired by either party under this Agreement through its employees or agents shall be and remain the disclosing party’s exclusive property, and the receiving party shall keep, and shall obligate its employees and agents to keep, any and all such information confidential and shall not copy or disclose it to others without the disclosing party’s prior written approval, and shall return all tangible copies of such Confidential Information to the disclosing party promptly upon request. The Confidential Information of the disclosing party may be used by the receiving party only in connection with the Services. Nothing herein shall limit either party’s use or dissemination of information which (i) is at the time of disclosure, or thereafter becomes, a part of the public domain through no act or omission of the other party, its employees or agents; or (ii) was in the other party’s possession as shown by written records prior to the disclosure and had not been obtained by such party either directly or indirectly from the disclosing party; (iii) is hereafter disclosed to the other party by a third party who did not acquire the information directly or indirectly from the disclosing party hereunder; (iv) was independently developed by the other party without the use of the Confidential Information, as evidenced by written records; or (v) was required by law, regulation or auditing standards to be disclosed, but only to the extent and for the purposes of such required disclosure. Nothing in this Agreement obligates Consultant to divulge to Client any information for or related to which Consultant has previously undertaken an obligation of confidentiality for the benefit of any party other than Client. Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.

 

  1. RELATIONSHIP OF THE PARTIES

8.1 Independent Contractor. The Consultant is an independent contractor, not an employee of the Client or any company affiliated with the Client. Consultant shall provide the Services under the general direction of Client, but Consultant shall determine the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture, and neither Party is authorized to act as an agent or bind the other Party, except as expressly stated in this Agreement. Consultant and the Deliverables prepared by Consultant shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the Parties and the various terms and conditions of this Agreement.

8.2 No Exclusivity. The Parties expressly acknowledge that this Agreement does not create an exclusive relationship between the Parties. The client is free to engage others to perform services of the same or similar nature to those provided by Consultant, and the Consultant shall be entitled to offer and provide services to others, solicit other clients, and otherwise advertise the services offered by the Consultant.

 

  1. WARRANTIES AND REPRESENTATIONS

9.1 By Client. The Client represents, warrants, and covenants to the Consultant that

(a) Client owns all rights, titles, and interests in, or otherwise has full-right and authority to permit the use of the Client Content; and,

(b) To the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties.

9.2 By Consultant.

(a) Consultant hereby represents, warrants, and covenants to Client that Consultant will provide Consultant’s Services and produce the Deliverables as identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.

(b) Consultant further represents, warrants, and covenants to Client that

  • (i) The Final Deliverables shall be the work of the Consultant; and,
  • (ii) To the best of Consultant’s knowledge, the Final Work provided by Consultant does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties.
  1. INDEMNIFICATION

10.1 By Client. Client agrees to indemnify, save and hold harmless Consultant from any and all damages, liabilities, costs, losses, or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances, Client shall promptly notify Consultant in writing of any claim or suit. The Client has sole control of the defense and all related settlement negotiations. Consultant shall provide Client with commercially reasonable assistance, information, and authority necessary to perform Client’s obligations under this section.

 

  1. TERMS AND TERMINATION

11.1a. This Agreement shall commence on the start date agreed on the SOW and upon the date of successful initiation payment (contemplated Effective Date) and shall remain effective until the Services are completed, and the Final Deliverables and the Final Work are delivered for Projects.

11.1b. This Agreement shall commence on the Start Date agreed on the SOW and shall remain effective as indicated in SOW for services rendered monthly ending on the SOW’s End Date.

11.2 This Agreement may remain effective for Services requested in the future if both Parties agree to continue using it until explicitly terminated by either Party according to Provision 11.3, or the Agreement is superseded by a new Agreement executed by both Parties. Under this provision, new requests for Services must be of a Time and Materials nature, or be performed under a new SOW executed by both Parties.

11.3 This Agreement may be terminated at any time by either Party with 30-days written notice for services rendered monthly basis, or with 15-days written notice for project-based rendered services, or if any Party:

(a) Becomes insolvent, files a petition in bankruptcy, or makes an assignment for the benefit of its creditors; or,

(b) Breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 30-days for services rendered monthly or 15-days for project-based rendered services from receipt of written notice of such breach.

11.4 For Subscriptions: if the agreement is terminated by the Client within the first 6 months from the effective date for semi-annual agreements, the current month plus 25% of the regular (undiscounted) semi-annual price cancellation fee will apply. If the agreement is terminated by the Client within the first 12 months from the effective date for annual agreements, the current month plus 25% of the regular (undiscounted) semi-annual price cancellation fee will apply.

There is a cancellation fee if the agreement is canceled by the Client after the initial 12-months and autorenewal period from the effective date amounting to the current month plus 17% of the annual renewal fee.

11.5 Upon expiration or termination of this Agreement:

(a) Each Party shall return or, at the disclosing Party’s request, destroy the Confidential Information of the other Party; and,

(b) Other than as provided herein, all rights and obligations of each Party under this Agreement, exclusive of the Services, shall survive.

 

 

  1. TIME AND MATERIALS

12.1 Work requested by the Client to be performed by the Consultant that is not specifically detailed in SOW may be completed under the terms and clauses of this Agreement as Time and Materials Work. Such Work will be tracked by the Consultant by recording time worked in full-hour increments, to be billed on the bi-weekly in which said Work was completed, at a billing rate of $250.00 US per hour, or as noted in the SOW. This applies to projects only.

12.2 Subscriptions are outlined in the SOW with services’ scope, tasks, and deliverables. Any other request outside Subscription’s services will be considered a project and billed accordingly.

 

  1. PAYMENT

13.1 All project-related invoices are due upon receipt or as stated in the Invoice’s due date.

13.2 All Subscriptions are monthly subscriptions (or retainer) without an end date, unless advised per section 11.1b and SOW. Subscription invoices are pre-paid and due on the 1st of each month or the 15th of each month. The due date is assigned and stated in the SOW. All dues billed are for the amount of the services agreed upon and to be rendered.

13.3 For Subscriptions:

(a) Preferred payment method is Automatic ACH Draft. The Client is to log into the Consultant’s PMS and pay the invoice using the ACH method;

(b) If Client prefers not to use Automatic ACH Draft payment, invoices must be payable by Zelle using the Zelle recipient jgomez@moreketing.us, or by check and mailed to the address indicated in 13.5, unless another payment method is specifically agreed upon by both Parties.

13.4 For projects invoiced services are payable by check only, unless another method is specifically agreed upon by both Parties.

13.5 Payments should be mailed to:

MoreKeting
8325 NE 2nd Ave #333
Miami, FL. 33138

13.6 There is a grace payment period of 5-calendar days.

13.7 Late payments will incur a 1.5% late fee that is compounded monthly. Late payments are incurred after the 5th calendar day of the grace period.

13.8 There will be 5% financial fee added to the invoice if the Client requests to make payment with Credit Card.

 

 

 

  1. GENERAL

14.1 Assignment of Work. Consultant may employ Subcontractors to assist in completing Deliverables. Consultant assumes responsibility for all Work created by said Subcontractors and said Subcontractors are bound by all sections and clauses of this Agreement in a manner consistent with Consultant.

14.2 Modification/Waiver. This Agreement may be modified by the Parties, but any modification of this Agreement must be in writing and executed by both Parties. Failure by either Party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights, nor shall a waiver by either Party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.

14.3 Notices. All notices to be given hereunder shall be transmitted in writing either by electronic mail with a request of reply of the recipient or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified in the signature execution section below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of email, upon confirmation of receipt.

14.4 No Assignment. Consultant shall not assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned, or encumbered by operation of law or otherwise, without the prior written consent of Client.

14.5 Governing Law. The formation, construction, performance, and enforcement of this Agreement shall be in accordance with the laws of the State of Florida without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction.

14.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.

14.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent, or interpretation of the provisions of this Agreement, nor shall such headings otherwise be given any legal effect.

14.8 Integration. This Agreement comprises the entire understanding of the Parties hereto on the subject matter herein contained and supersedes and merges all prior and contemporaneous agreements, understandings, and discussions between the Parties relating to the subject matter of this Agreement.

14.9 Force Majeure. In no event shall the Consultant be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Consultant shall use reasonable efforts which are consistent with accepted practices in the marketing industry to resume performance as soon as practicable under the circumstances.

14.10 By their execution, the Parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective Party to all of the terms and conditions herein.

 

  1. SERVICES

15.1 Procedure for Services. Client agrees to retain Consultant for marketing services and Consultant agrees to provide to Client, at mutually convenient times and places, marketing services as defined in Statements of Work (each, “SOW”) and as designated from time-to-time by the mutual agreement of the Client and Consultant (the “Services”). This Agreement serves as the governing agreement for specific initiatives to be detailed in signed SOW(s). Acceptance of this Agreement indicates acknowledgment of the terms of this Agreement only. In the event of a conflict between the provisions hereof and an SOW, the terms of this Agreement shall prevail. Services are initiated under this Agreement only after a completed SOW has been approved and signed by an authorized individual for Client and for Consultant.

15.2 Services & Statement of Work. Consultant agrees to perform the Services in a professional manner. Consultant reserves the right to requote an SOW if its acceptance by Client does not occur within thirty (30) days after issuance. A separate SOW will be prepared and signed by both parties whenever there is a new or changed project objective, the scope of deliverable(s), or when a change in project assumptions has a material impact on project cost estimates. Notwithstanding the foregoing, if Consultant, at the request of, or upon notice to Client, performs work that is not covered by an SOW or that exceeds the scope of Services defined in the applicable SOW, such work shall be deemed a Project provided pursuant to this Agreement for which Client shall compensate Consultant pursuant to Section 12.

15.3 Solicitation. During the term of this Agreement and for two years thereafter the agreement’s end date, without Consultant’s prior written consent neither Client nor any of its affiliates shall, directly or indirectly, solicit for employment, offer employment to, employ or engage in any capacity including, but not limited to, as a contract or equity partner, consultant or advisor any individual who is then employed, or any individual who was employed by Consultant, its parent or any of their respective affiliates and who was in any way related to Consultant’s provision of Services pursuant hereto.

 

 

  1. LIMITATION OF LIABILITY

16.1 Limitation. Limitation of Liability. If Consultant or any of its affiliates, or any of their respective officers, directors, employees, agents, subcontractors or shareholders, is ever liable to Client for one or more breaches, disputes, controversies or claims arising under or in connection with Services provided hereunder (whether any such breach, dispute, controversy or claim is based upon contract, tort, statute, equity or any other legal theory), except for claims for personal injury arising out of Consultant’s willful misconduct or negligence and/or Consultant’s infringement of a third party intellectual property rights, then, (i) the cumulative amount of all damages and penalties, if any, recoverable by Client for all such breaches, disputes, controversies and claims will not exceed, in the aggregate, an amount equal to the total amount of the fees (excluding unamortized prepaid fees, if any) paid by Client under the applicable SOW(s) from which the breach, dispute, controversy or claim arose , (ii) recovery of such amount as limited hereby will be Client’s sole and exclusive remedy, and (iii) Client releases Consultant and its affiliates, and their respective officers, directors, employees, agents, subcontractors and shareholders, from any liability in excess of such amount.

IN NO EVENT WILL THE CONSULTANT OR ANY OF ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, OR SUBCONTRACTORS, BE LIABLE TO THE CLIENT OR ANY OTHER PERSON FOR (I) ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF CONSULTANT OR SUCH OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (II) PUNITIVE DAMAGES, LOSS OF ANTICIPATED PROFITS, SAVINGS OR BUSINESS, LOSS OF COMMERCIAL REPUTATION OR OTHER ECONOMIC LOSS, OR (III) DAMAGES THAT COULD HAVE BEEN AVOIDED, USING REASONABLE DILIGENCE, BY CLIENT OR SUCH OTHER PERSON.

 

  1. REMEDIES & DISPUTE RESOLUTION

17.1 Remedies & Dispute Resolution. If a dispute arises out of or relates to this Agreement, or the breach thereof, then the parties agree to use the dispute resolution process set forth in Appendix A attached hereto.  Because a breach of any obligations set forth in Sections 2 and 7 will irreparably harm either party and substantially diminish the value of each party’s proprietary rights or its Confidential Information, Client and Consultant agree that if either party breaches any of its obligations thereunder, the other party shall, without limiting its other rights or remedies, be entitled to equitable relief (including, but not limited to, injunctive relief) to enforce its rights thereunder, including without limitation protection of its proprietary rights. The parties agree that a party need not invoke the procedures set forth in Appendix A attached hereto in order to seek injunctive or declaratory relief.

17.2 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY SOW AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO.  THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT.

17.3 Attorney’s Fees. The prevailing party in any action related to or arising out of this Agreement or any SOW, whether such action is at the trial, arbitration, or appellate level, shall be entitled to its reasonable attorney’s fees and court costs.

17.4 Waiver. The waiver, failure, and/or delay of either party to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder. The rights and remedies of each party as set forth in this Agreement are in addition to any rights or remedies otherwise available at law or in equity.

APPENDIX A

Dispute Resolution Process

 

The following procedures shall be used to resolve any disputes, claims, or controversies (“disputes”) between us as provided herein. If any of these provisions are determined to be invalid or unenforceable, the remaining provisions shall remain in effect and binding on the parties to the fullest extent permitted by law.

  1. Discussion; Management.  The parties shall first employ the full resources of the Executive Committee to resolve all disputes expeditiously and informally.  The Executive Committee shall be composed of the following representatives of the Client and Consultant (then The Executive Committee shall be composed of Consultant’s Executive Manager, President, CEO, COO, or another designated person with comparable authority who shall act in good faith to resolve the controversy or dispute):

 

In the event that such dispute cannot be resolved by the Executive Committee, the parties shall each involve an independent executive officer of the respective parties, each of whom shall review and discuss the dispute between them and attempt to resolve it by agreement.  If such dispute cannot be resolved by the foregoing method within a reasonable period of time, the parties shall resort to the mediation procedure set forth below.

  1. Mediation

2.1. Either party may request to submit a dispute to mediation by providing written notice to the other party.  In the mediation process, the parties will try to resolve their differences voluntarily with the aid of an impartial mediator, who shall attempt to facilitate negotiations.  The mediator shall be selected by the agreement of the parties.  If the parties cannot otherwise agree on a mediator, a mediator shall be designated by a mutually agreeable mediation association at the request of a party.  Any mediator so designated must be acceptable to all parties.

 

2.2. The mediation shall be conducted as specified by the mediator and agreed upon by the parties. The parties agree to discuss their differences in good faith and to attempt, with the assistance of the mediator, to reach an amicable resolution of the dispute.

2.3. The mediation shall be treated as a settlement discussion and therefore shall be confidential.  The mediator may not testify for either party in any later proceeding relating to the dispute.  No recording or transcript shall be made of the mediation proceedings.

2.4. Each party shall bear its own costs in the mediation.  The fees and expenses of the mediator shall be shared equally by the parties.

 

  1. Arbitration.

3.1. If a dispute has not been resolved within 30 days after the written notice beginning the mediation process (or a longer period, if the parties may agree to extend the mediation), the mediation shall terminate, and the parties may agree that the dispute shall be settled by arbitration. The arbitration shall be conducted in accordance with the procedures of the mediation association.  In the event of a conflict, the provisions of this Appendix A shall control.

3.2. The arbitration shall be conducted before a single arbitrator, regardless of the size of the dispute, to be selected as provided in the mediation rules.  Any issue concerning the extent to which any dispute is subject to arbitration, or concerning the applicability, interpretation, or enforceability of these procedures, including any contention that all or part of these procedures are invalid or unenforceable, shall be governed by the arbitration rules and resolved by the arbitrator.  No potential arbitrator may serve unless he or she has agreed in writing to abide and be bound by these procedures.

3.3. Unless provided otherwise herein, the arbitrator may not award non-monetary or equitable relief of any sort.  They shall have no power to award (a) damages inconsistent with this Agreement or (b) punitive damages or any other damages not measured by the prevailing party’s actual damages. In no event, even if any other portion of these provisions is held to be invalid or unenforceable, shall the arbitrator have the power to make an award or impose a remedy that could not be made or imposed by a court deciding the matter in the same jurisdiction.

3.4. No discovery shall be permitted in connection with the arbitration unless it is expressly authorized by the arbitrator upon a showing of substantial need by the party seeking discovery.

3.5. All aspects of the arbitration shall be treated as confidential.  Neither the parties nor the arbitrator may disclose the existence, content, or results of the arbitration, except as necessary to comply with legal or regulatory requirements. Before making any such disclosure, a party shall give written notice to all other parties and shall afford such parties a reasonable opportunity to protect their interests.

3.6. The result of the arbitration shall bind the parties, and judgment on the arbitrator’s award may be entered in Miami-Dade County Court.  The prevailing party should not be liable for any arbitration costs.

 

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