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RECITALS

            WHEREAS, Client desires to engage Service Provider and Service Provider desires to be engaged by Client subject to the terms and conditions provided herein.

            NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:

  1. Services.
    1. Client hereby engages Service Provider, and Service Provider hereby accepts such engagement, as an independent contractor, to provide the Services to Client as described in more detail in each Statement of Work in accordance with the terms and conditions of this Agreement. In connection with performing the Services, Service Provider is authorized to subcontract the Services to such third-party subcontractors as Service Provider may determine in its sole discretion.
    2. Each Statement of Work shall include the following information, if applicable:
      1. a detailed description of the Services to be performed pursuant to the Statement of Work;
      2. the date upon which the Services will commence and the term of such Statement of Work;
      3. the fees to be paid to Service Provider under the Statement of Work;
      4. any criteria for completion of the Services and/or Project; and
      5. any other terms and conditions agreed upon by the parties in connection with the Services to be performed pursuant to such Statement of Work.
  2. Client Obligations.
    1. Client shall appoint an individual and notify Service Provider of their selection of “Authorized Person” to receive all correspondence, whether written, oral or electronic, arising from or relating to this Agreement and the Services provided, including but not limited to all draft work product Service Provider may create on behalf of Client hereunder. The Authorized Person shall have full decision-making authority to approve all matters on behalf of Client arising from or relating to this Agreement and the Services provided and Service Provider shall be entitled to rely on the Authorized Person without the need to seek confirmation from any other Person. Client may remove and replace an Authorized Person for any reason without the consent of Service Provider. In the event Client appoints a new Authorized Person, Client shall promptly notify Service Provider in writing.
    2. Client shall (i) cooperate with Service Provider in all matters relating to the Services; (ii) respond promptly to any Service Provider request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement; and (iii) provide such information as Service Provider may request in order to carry out the Services in a timely manner and ensure that it is completed.
    3. Client hereby grants Service Provider access to its server, including FTP, Cpanel, and website admin rights, and Client’s Google Analytics, Google Ads, Google Webmaster Tools, Google My Business, Google Merchant Center, if applicable, and all other accounts needed to perform the Services. Client shall provide Service Provider with all information, including any passwords, necessary for Service Provider to access the forgoing.
    4. If Client has an open source website, or has an open source website being developed, Client agrees to promptly select a web hosting provider which allows Service Provider full FTP access to the website hosting environment.
    5. If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client, any Authorized Person or its agents, subcontractors, consultants or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
    6. With respect to any website developed by Service Provider on behalf of Client hereunder, Client acknowledges and agrees that: (i) prior to completion, Client’s access to the website shall be limited to viewing and testing the website at such times and to such extent as Service Provider reasonably determines; (ii) Service Provider shall host the site on a development / staging server prior to launch; (iii) Service Provider reserves the right to go offline for purposes of maintenance, upgrades and testing; (iv) Service Provider may recommend hosting providers to the Client; provided that Service Provider is not responsible for any issues or interruptions in service with any hosting provider; (v) upon completion, Service Provider shall provide Client with full access to the website files and databases and shall provide all files at such a time and Client hereby authorizes Service Provider to submit Client’s completed website to any internet search engine; and (vi) Service Provider is not the host or otherwise responsible for hosting such website, such website shall be hosted by a third party, and Client shall look solely to that third party (and not Service Provider) for any Losses incurred by Client as a result of such website crashing for any reason, including but not limited to a surge in Internet traffic to such website.
    7. Client shall not lock Service Provider out of its website or related accounts prior to Service Provider receiving full payment of fees and expenses as provided in this Agreement. 
    8. Client authorizes Service Provider to display Deliverables provided by Service Provider to Client hereunder as examples of Service Provider’s work product in any of Service Provider’s marketing materials, whether online or offline and in any format. 
    9. Client acknowledges and agrees that Service Provider shall not be responsible for or have any liability with respect to any Losses incurred by Client arising from or relating to any modifications made by any third party to any Deliverables provided hereunder, including but not limited to Client’s websites, digital media, and other materials once placed.
  3. Change Orders.
    1. If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other in writing. Service Provider shall, within a reasonable time after such request (and, if such request is initiated by Client, not more than 10 Business Days after receipt of Customer’s written request), provide a written estimate to Client of:
      1. the likely time required to implement the change;
      2. any necessary variations to the fees and other charges for the Services arising from the change;
      3. the likely effect of the change on the Services; and
      4. any other impact the change might have on the performance of this Agreement.
    2. Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 13(h).
  4. Term. This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the services under all Statements of Work and for a minimum term of twelve months as provided herein. The period beginning the Effective Date and ending the date this Agreement is terminated as provided herein is referred to herein as the “Term”. 
  5. Fees and Expenses; Payments Terms.
    1. In consideration of the provision of the Services by the Service Provider and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the applicable Statement of Work. Payment to Service Provider of such fees and the reimbursement of expenses pursuant to this Section 5 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.
    2. Where the Services are provided on a time and materials basis:
      1. the fees payable for the Services shall be calculated in accordance with Service Provider’s hourly fee rates set forth in the applicable Statement of Work; and
      2. Service Provider shall issue invoices to Client monthly in arrears for its fees for time for the immediately preceding month, calculated as provided in this Section 5(b), together with a detailed breakdown of any expenses for such month incurred in accordance with Section 5(d).
    3. Where Services are provided for a fixed price, the total fees for the Services shall be the amount set out in the applicable Statement of Work. The total price shall be paid to Service Provider in installments, as set out in the Statement of Work. Service Provider shall issue invoices to Client for the fees that are then payable, together with a detailed breakdown of any expenses incurred in accordance with Section 5(d).
    4. Client agrees to reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services that have been approved in advance in writing by Customer.
    5. Service Provider shall issue invoices to Client only in accordance with the terms of this Section, and Customer shall pay all properly invoiced amounts due to Service Provider upon Customer’s receipt of such invoice. In the event Client does not object to any invoice issued by Service Provider within ten (10) calendar days after issuance, Client shall be deemed to have accepted such invoice as complete and accurate as stated and Client waives the right to later object to the accuracy or reasonableness. In the event Client fails to pay such amount when due, Client shall pay to Service Provider, in addition to the amount due,  a late fee equal to 5.00% of the amount due (the “Late Fee”) plus interest on the aggregate amount due plus Late Fee at the highest maximum legal rate beginning the applicable due date until paid, compounded monthly.  In addition, in the event a check, draft, order, payment debit card order or electronic funds transfer (each a “Payment Instrument”) is refused by the drawee because of lack of funds, lack of credit, or lack of an account, All payments hereunder shall be in US dollars.
    6. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or 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.
  6. Relationship of the Parties. Service Provider is an independent contractor of the Client and this Agreement shall not be construed to create any association, partnership, joint venture or agency relationship between Client and Service Provider for any purpose.
  7. Termination; Effect of Termination.
    1. Either party, in its sole discretion, may terminate this Agreement or any Statement of Work, in whole or in part, after the initial twelve month term, without cause, by providing at least thirty (30) calendar days’ prior written notice to the other party. If this Agreement is canceled by Client without cause within twelve months of the Effective Date, Client still owes the contract value.
    2. Upon expiration of this Agreement for any reason:
      1. Client shall promptly pay Service Provider for all costs incurred by Service Provider (including outstanding invoices due to Subcontractors and any advance payments made by Service Provider to Subcontractors) on or prior to the date Client notifies Service Provider of such termination, to the extent not previously paid by Client.
      2. Upon payment of all applicable fees and other expenses to be paid hereunder by Client, Service Provider shall deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid and all Customer Materials.
  8. Intellectual Property.
    1. Effective immediately upon payment of all applicable fees and other expenses to be paid hereunder by Client to Service Provider for any applicable Deliverables and except as set forth in Section 8(c), Service Provider hereby grants to Client all right, title and interest in and to such Deliverables, including all Intellectual Property Rights therein. Service Provider agrees and will cause its Service Provider Personnel to agree (to the extent reasonably feasible), that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. §101, such Deliverables are hereby deemed a “work made for hire” for Client. To the extent that any of the Deliverables 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 (to the extent reasonably feasible), in each case without additional consideration, all right, title and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. The Service Provider shall cause, to the extent reasonably feasible, 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 Deliverable.
    2. Upon the reasonable request of Client, Service Provider shall, and shall to the extent reasonably feasible 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.
    3. Notwithstanding anything in this Agreement to the contrary, Service Provider and its licensors are, and shall remain, the sole and exclusive owners of all right, title and interest in and to the Pre-Existing Materials, including all Intellectual Property Rights therein. Service Provider hereby grants Client a limited, irrevocable, perpetual, fully paid-up, royalty-free, non-transferable (except in accordance with Section 18.7), non-sublicenseable, worldwide license to any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables solely to the extent reasonably required in connection with Client’s receipt or use of the Services and Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Service Provider.
  9. Negative Covenants.
    1. Client agrees and covenants that, during the Term and for a period of two (2) years thereafter beginning the date this Agreement is terminated for any reason, it shall not, directly or indirectly, solicit, hire, recruit, or attempt to solicit, hire, or recruit, or otherwise engage in any business relationship of any kind with any of Service Provider’s Service Provider Personnel, in each case, without the prior written consent of Service Provider, which may be given or withheld in Service Provider’s sole and absolute discretion.
    2. Client agrees and covenants that it shall not, directly or indirectly, at any time make, publish or communicate to any Person or entity or in any public forum any defamatory, maliciously false, or disparaging remarks, comments, or statements concerning Service Provider or its business or any of its employees, officers, or managers and its existing and prospective customers, suppliers, investors and other associated third parties, no or in the future.  
  10. Representations and Warranties.
    1. Client represents and warrants that:
      1. Client is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws of its jurisdiction of formation. Client has full power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by Client of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action on the part of Client. This Agreement has been duly executed and delivered by Client, and (assuming due authorization, execution and delivery by Service Provider) this Agreement constitutes legal, valid and binding obligations of Client, enforceable against Client in accordance with their respective terms.
      2. No consent, approval, waiver or authorization is required to be obtained by Client from any Person or entity (including any governmental authority) in connection with the execution, delivery and performance by Client of this Agreement and the consummation of the transactions contemplated hereby.
      3. Client shall be responsible for all fees and costs of any Subcontractor incurred by Service Provider in connection with any Project, including any additional fees and costs incurred in excess of amounts previously quoted or included in a Statement of Work, provided that Client previously consented to or otherwise requested such additional fees and costs.
      4. Client owns or has an adequate, valid and enforceable rights to use all Intellectual Property provided to Service Provider for use by Service Provider in connection with providing the Services and any products delivered hereunder (such Intellectual Property, the “Client IP”). The use by Service Provider of any Client IP in accordance with this Agreement will not infringe or otherwise conflict with the rights of any other Person or entity. There is no settled, pending, or threatened litigation, opposition, or other claim or proceeding challenging the validity, enforceability, ownership, registration, or use of any Client IP.
    2. Service Provider represents and warrants that:
      1. Service Provider is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws of its jurisdiction of formation. Service Provider has full power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by Service Provider of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action on the part of Service Provider. This Agreement has been duly executed and delivered by Service Provider, and (assuming due authorization, execution and delivery by Client) this Agreement constitutes legal, valid and binding obligations of Service Provider, enforceable against Service Provider in accordance with their respective terms.
      2. No consent, approval, waiver or authorization is required to be obtained by Service Provider from any Person or entity (including any governmental authority) in connection with the execution, delivery and performance by Client of this Agreement and the consummation of the transactions contemplated hereby.
    3.  EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 10, (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
  11. Indemnification.
    1. Client shall defend, indemnify and hold harmless Service Provider and its officers, managers, directors, employees, agents, successors and permitted assigns from and against all Losses arising out of or resulting from:
      1. bodily injury, death of any Person or damage to real or tangible, Personal property resulting from the grossly negligent or willful acts or omissions of Client; and
      2. Client’s breach of any representation, warranty or obligation of Client in this Agreement.
    2. Service Provider shall defend, indemnify and hold harmless Client and its officers, managers, directors, employees, agents, successors and permitted assigns from and against all Losses arising out of or resulting from:
      1.  bodily injury, death of any Person or damage to real or tangible, Personal property resulting from the grossly negligent or willful acts or omissions of Service Provider; and
      2. Service Provider’s breach of any representation, warranty or obligation of Service Provider in this Agreement;

provided, however, that the aggregate amount of all Losses for which Service Provider shall be liable pursuant this Section 11(b) shall not exceed the aggregate amount of
fees paid to Service Provider under this Agreement. The forgoing limitation
shall not apply to Losses based upon or arising out of any common law fraud or
willful misconduct by Service Provider. 

  1. Definitions.
    Capitalized terms used and not otherwise defined herein shall have the
    following meaning:

Affiliate” of a Person means any other
Person that directly or indirectly, through one or more intermediaries, controls,
is controlled by, or is under common control with, such Person. The term “control”
(including the terms “controlled by” and “under common control with”) means the
possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise

Business Day” means any day except
Saturday, Sunday or any other day on which commercial banks located in Miami,
Florida are authorized or required by applicable law to be closed for business.

Client Materials” means any documents,
data, know-how, methodologies, software and other materials provided to Service
Provider by Client, including computer programs, reports and specifications.

Deliverables” means all documents, work
product and other materials that are delivered to Client hereunder or prepared
by or on behalf of Service Provider in the course of performing the Services,
including any items identified as such in a Statement of Work.

Intellectual Property Rights” means all
(a) patents, patent disclosures and inventions (whether patentable or not), (b)
trademarks, service marks, trade dress, trade names, logos, corporate names and
domain names, together with all of the goodwill associated therewith, (c)
copyrights and copyrightable works (including computer programs), and rights in
data and databases, (d) trade secrets, know-how and other confidential
information, and (e) all other intellectual property rights, in each case
whether registered or unregistered and including all applications for, and
renewals or extensions of, such rights, and all similar or equivalent rights or
forms of protection in any part of the world.

Losses” mean all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

Pre-Existing Materials” means all documents, data, know-how, methodologies, software and other materials, including computer programs, reports and specifications, provided by or used by Service Provider in connection with performing the Services, in each case developed or acquired by the Service Provider prior to the commencement or
independently of this Agreement.

Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or
other entity.

Project” means a project as described in a Statement of Work.

Service Provider Personnel” means all employees and Subcontractors, if any, engaged by Service Provider to perform the Services.

Services” mean any professional or other services to be provided by Service Provider under this agreement, as described in more detail in a Statement of Work, and Service Provider’s obligations under this Agreement.

Statement of Work” means each Statement of Work entered into by the parties and attached to this Agreement.

Subcontractor” means any third-party contractor or vendor chosen by Service Provider to provide a specific product or service in connection with any Project. 

  1. Miscellaneous.
    1. No party shall be liable or responsible to the other
      party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from the following force majeure events (a “Force
      Majeure Event
      ”): (a) acts of G-d; (b) flood, fire, earthquake, hurricane or
      explosion; (c) war, invasion, hostilities (whether war is declared or not),
      terrorist threats or acts, riot, or other civil unrest; (d) government order or
      law; (e) actions, embargoes, or blockades in effect on or after the date of
      this Agreement; (f) action by any governmental authority; (g) national or
      regional emergency; (h) strikes, labor stoppages or slowdowns, or other
      industrial disturbances; (i) shortage of adequate power (including any downtime caused by failure of the power grid) or transportation facilities; and (j) other similar events beyond the reasonable control of the party impacted by the Force Majeure Event.
    2. All notices, requests, consents, claims, demands,
      waivers and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 13(b)).

If to Service Provider:

BrandStar Digital, LLC
3850 Powerline Road
Deerfield Beach, FL 33073
Email: seth@brandstardigital.com
Attn: Seth Rand, President 

  • For purposes of this Agreement, (i) the words “include,”
    “includes” and “including” shall be deemed to be followed by the words “without
    limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein,”
    “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a
    whole. Unless the context otherwise requires, references herein: (x) to
    Sections, Schedules, Exhibits and Statements of Work refer to the Sections of,
    and Schedules, Exhibits and Statements of Work attached to this Agreement; (y)
    to an agreement, instrument or other document means such agreement, instrument
    or other document as amended, supplemented and modified from time to time to
    the extent permitted by the provisions thereof and (z) to a statute means such
    statute as amended from time to time and includes any successor legislation
    thereto and any regulations promulgated thereunder. This Agreement shall be
    construed without regard to any presumption or rule requiring construction or
    interpretation against the party drafting an instrument or causing any
    instrument to be drafted. The Schedules, Exhibits and Statements of Work
    referred to herein shall be construed with, and as an integral part of, this
    Agreement to the same extent as if they were set forth verbatim herein.
    • This Agreement, together with all Schedules, Exhibits
      and Statements of Work and any other documents incorporated herein by
      reference, constitutes the sole and entire agreement of the parties to this
      Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Schedule, Exhibit or Statement of Work, the following order of precedence shall govern: (i) first, this Agreement, exclusive of its Exhibits and Schedules; (ii) second, the applicable Statement of Work; and (c) third, any Exhibits and Schedules to
      this Agreement.
    • Except as otherwise provided in Section 1 with respect
      to Service Provider’s ability to subcontract, neither party may assign,
      transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party; provided, that, upon prior written notice to the other party, either party may assign the Agreement to an Affiliate of such party or to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation or acquisition. 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. This Agreement shall be
      binding upon and shall inure to the benefit of the parties hereto and their
      respective successors and permitted assigns.
    • Except as provided in Section 11 (which shall be for
      the benefit of the Persons entitled to indemnification as provided therein), this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
    • The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
    • This Agreement may only be amended, modified or
      supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this 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.
    • If any term or provision of this Agreement is invalid,
      illegal or unenforceable in any jurisdiction, such invalidity, illegality or
      unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated
      to the greatest extent possible.
    • This Agreement shall be governed by and construed in
      accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Florida. Any legal suit, action or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in the city of Fort Lauderdale and County of Broward, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
    • Each party acknowledges that a breach by a party of
      Section 8 or Section 9 may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

This Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall be deemed to be one and the same
agreement. A signed copy of this Agreement delivered by facsimile, e-mail or
other means of electronic transmission shall be deemed to have the same legal
effect as delivery of an original signed copy of this Agreement.

R E
C I T A L S

            WHEREAS, Client desires to engage
Service Provider and Service Provider desires to be engaged by Client subject
to the terms and conditions provided herein.

            NOW, THEREFORE, for valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto, intending to be legally bound, agree as follows:

  1. Services.
    1. Client hereby engages Service Provider, and Service Provider hereby accepts such engagement, as an independent contractor, to provide the Services to Client as described in more detail in each Statement of Work in accordance with the terms and conditions of this Agreement. In connection with performing the Services, Service Provider is authorized to subcontract the Services to such third-party subcontractors as Service Provider may determine in its sole discretion.
    1. Each Statement of Work shall include the following information, if applicable:
      1. a detailed description of the Services to be performed pursuant to the Statement of Work;
      1. the date upon which the Services will commence and the term of such Statement of Work;
      1. the fees to be paid to Service Provider under the Statement of Work;
      1. any criteria for completion of the Services and/or Project; and
      1. any other terms and conditions agreed upon by the parties in connection with the Services to be performed pursuant to such Statement of Work.
  2. Client Obligations.
    1. Client shall appoint an individual and notify Service Provider of their selection of “Authorized Person” to receive all correspondence, whether written, oral or electronic, arising from or relating to this Agreement and the Services provided, including but not limited to all draft work product Service Provider may create on behalf of Client hereunder. The Authorized Person shall have full decision-making authority to approve all matters on behalf of Client arising from or relating to this Agreement and the Services provided and Service Provider shall be entitled to rely on the Authorized Person without the need to seek confirmation from any other Person. Client may remove and replace an Authorized Person for any reason without the consent of Service Provider. In the event Client appoints a new Authorized Person, Client shall promptly notify Service Provider in writing.
    1. Client shall (i) cooperate with Service Provider in all matters relating to the Services; (ii) respond promptly to any Service Provider request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement; and (iii) provide such information as Service Provider may request in order to carry out the Services in a timely manner and ensure that it is completed.
    1. Client hereby grants Service Provider access to its server, including FTP, Cpanel, and website admin rights, and Client’s Google Analytics, Google Ads, Google Webmaster Tools, Google My Business, Google Merchant Center, if applicable, and all other accounts needed to perform the Services. Client shall provide Service Provider with all information, including any passwords, necessary for Service Provider to access the forgoing.
    1. If Client has an open source website, or has an open source website being developed, Client agrees to promptly select a web hosting provider which allows Service Provider full FTP access to the website hosting environment.
    1. If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client, any Authorized Person or its agents, subcontractors, consultants or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
    1. With respect to any website developed by Service Provider on behalf of Client hereunder, Client acknowledges and agrees that: (i) prior to completion, Client’s access to the website shall be limited to viewing and testing the website at such times and to such extent as Service Provider reasonably determines; (ii) Service Provider shall host the site on a development / staging server prior to launch; (iii) Service Provider reserves the right to go offline for purposes of maintenance, upgrades and testing; (iv) Service Provider may recommend hosting providers to the Client; provided that Service Provider is not responsible for any issues or interruptions in service with any hosting provider; (v) upon completion, Service Provider shall provide Client with full access to the website files and databases and shall provide all files at such a time and Client hereby authorizes Service Provider to submit Client’s completed website to any internet search engine; and (vi) Service Provider is not the host or otherwise responsible for hosting such website, such website shall be hosted by a third party, and Client shall look solely to that third party (and not Service Provider) for any Losses incurred by Client as a result of such website crashing for any reason, including but not limited to a surge in Internet traffic to such website.
    1. Client shall not lock Service Provider out of its website or related accounts prior to Service Provider receiving full payment of fees and expenses as provided in this Agreement. 
    1. Client authorizes Service Provider to display Deliverables provided by Service Provider to Client hereunder as examples of Service Provider’s work product in any of Service Provider’s marketing materials, whether online or offline and in any format. 
    1. Client acknowledges and agrees that Service Provider shall not be responsible for or have any liability with respect to any Losses incurred by Client arising from or relating to any modifications made by any third party to any Deliverables provided hereunder, including but not limited to Client’s websites, digital media, and other materials once placed.
  3. Change Orders.
    1. If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other in writing. Service Provider shall, within a reasonable time after such request (and, if such request is initiated by Client, not more than 10 Business Days after receipt of Customer’s written request), provide a written estimate to Client of:
      1. the likely time required to implement the change;
      1. any necessary variations to the fees and other charges for the Services arising from the change;
      1. the likely effect of the change on the Services; and
      1. any other impact the change might have on the performance of this Agreement.
    1. Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 13(h).
  4. Term. This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the services under all Statements of Work and for a minimum term of six months as provided herein. The period beginning the Effective Date and ending the date this Agreement is terminated as provided herein is referred to herein as the “Term”. 
  5. Fees and Expenses; Payments Terms.
    1. In consideration of the provision of the Services by the Service Provider and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the applicable Statement of Work. Payment to Service Provider of such fees and the reimbursement of expenses pursuant to this Section 5 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.
    1. Where the Services are provided on a time and materials basis:
      1. the fees payable for the Services shall be calculated in accordance with Service Provider’s hourly fee rates set forth in the applicable Statement of Work; and
      1. Service Provider shall issue invoices to Client monthly in arrears for its fees for time for the immediately preceding month, calculated as provided in this Section 5(b), together with a detailed breakdown of any expenses for such month incurred in accordance with Section 5(d).
    1. Where Services are provided for a fixed price, the total fees for the Services shall be the amount set out in the applicable Statement of Work. The total price shall be paid to Service Provider in installments, as set out in the Statement of Work. Service Provider shall issue invoices to Client for the fees that are then payable, together with a detailed breakdown of any expenses incurred in accordance with Section 5(d).
    1. Client agrees to reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services that have been approved in advance in writing by Customer.
    1. Service Provider shall issue invoices to Client only in accordance with the terms of this Section, and Customer shall pay all properly invoiced amounts due to Service Provider within thirty (30) calendar days after Customer’s receipt of such invoice. In the event Client does not object to any invoice issued by Service Provider within ten (10) calendar days after issuance, Client shall be deemed to have accepted such invoice as complete and accurate as stated and Client waives the right to later object to the accuracy or reasonableness. In the event Client fails to pay such amount when due, Client shall pay to Service Provider, in addition to the amount due,  a late fee equal to 5.00% of the amount due (the “Late Fee”) plus interest on the aggregate amount due plus Late Fee at the highest maximum legal rate beginning the applicable due date until paid, compounded monthly.  In addition, in the event a check, draft, order, payment debit card order or electronic funds transfer (each a “Payment Instrument”) is refused by the drawee because of lack of funds, lack of credit, or lack of an account, Client shall have 15 days from the date Service Provider notifies Client of same to tender payment in the full amount of the Payment Instrument plus a service charge equal to the greater of (i) $25.00 if the face value does not exceed $50.00; $30.00 if the face value is more than $50.00 but does not exceed $300.00; $40.00 if the face value is more than $300.00; or (ii) 5% of the of the face amount of the Payment Instrument. This policy is pursuant to Florida Statutes s. 68.065. All payments hereunder shall be in US dollars.
    1. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or 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.
  6. Relationship of the Parties. Service Provider is an independent contractor of the Client and this Agreement shall not be construed to create any association, partnership, joint venture or agency relationship between Client and Service Provider for any purpose.
  7. Termination; Effect of Termination.
    1. Either party, in its sole discretion, may terminate this Agreement or any Statement of Work, in whole or in part, after the initial six month term, without cause, by providing at least thirty (30) calendar days’ prior written notice to the other party. If this Agreement is canceled by Client without cause within six months of the Effective Date, Client still owes the contract value.
    1. Upon expiration of this Agreement for any reason:
      1. Client shall promptly pay Service Provider for all costs incurred by Service Provider (including outstanding invoices due to Subcontractors and any advance payments made by Service Provider to Subcontractors) on or prior to the date Client notifies Service Provider of such termination, to the extent not previously paid by Client.
      1. Upon payment of all applicable fees and other expenses to be paid hereunder by Client, Service Provider shall deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid and all Customer Materials.
  8. Intellectual Property.
    1. Effective immediately upon payment of all applicable fees and other expenses to be paid hereunder by Client to Service Provider for any applicable Deliverables and except as set forth in Section 8(c), Service Provider hereby grants to Client all right, title and interest in and to such Deliverables, including all Intellectual Property Rights therein. Service Provider agrees and will cause its Service Provider Personnel to agree (to the extent reasonably feasible), that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. §101, such Deliverables are hereby deemed a “work made for hire” for Client. To the extent that any of the Deliverables 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 (to the extent reasonably feasible), in each case without additional consideration, all right, title and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. The Service Provider shall cause, to the extent reasonably feasible, 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 Deliverable.
    1. Upon the reasonable request of Client, Service Provider shall, and shall to the extent reasonably feasible 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.
    1. Notwithstanding anything in this Agreement to the contrary, Service Provider and its licensors are, and shall remain, the sole and exclusive owners of all right, title and interest in and to the Pre-Existing Materials, including all Intellectual Property Rights therein. Service Provider hereby grants Client a limited, irrevocable, perpetual, fully paid-up, royalty-free, non-transferable (except in accordance with Section 18.7), non-sublicenseable, worldwide license to any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables solely to the extent reasonably required in connection with Client’s receipt or use of the Services and Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Service Provider.
  9. Negative Covenants.
    1. Client agrees and covenants that, during the Term and for a period of two (2) years thereafter beginning the date this Agreement is terminated for any reason, it shall not, directly or indirectly, solicit, hire, recruit, or attempt to solicit, hire, or recruit, or otherwise engage in any business relationship of any kind with any of Service Provider’s Service Provider Personnel, in each case, without the prior written consent of Service Provider, which may be given or withheld in Service Provider’s sole and absolute discretion.
    1. Client agrees and covenants that it shall not, directly or indirectly, at any time make, publish or communicate to any Person or entity or in any public forum any defamatory, maliciously false, or disparaging remarks, comments, or statements concerning Service Provider or its business or any of its employees, officers, or managers and its existing and prospective customers, suppliers, investors and other associated third parties, no or in the future.  
  10. Representations and Warranties.
    1. Client represents and warrants that:
      1. Client is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws of its jurisdiction of formation. Client has full power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by Client of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action on the part of Client. This Agreement has been duly executed and delivered by Client, and (assuming due authorization, execution and delivery by Service Provider) this Agreement constitutes legal, valid and binding obligations of Client, enforceable against Client in accordance with their respective terms.
      1. No consent, approval, waiver or authorization is required to be obtained by Client from any Person or entity (including any governmental authority) in connection with the execution, delivery and performance by Client of this Agreement and the consummation of the transactions contemplated hereby.
      1. Client shall be responsible for all fees and costs of any Subcontractor incurred by Service Provider in connection with any Project, including any additional fees and costs incurred in excess of amounts previously quoted or included in a Statement of Work, provided that Client previously consented to or otherwise requested such additional fees and costs.
      1. Client owns or has an adequate, valid and enforceable rights to use all Intellectual Property provided to Service Provider for use by Service Provider in connection with providing the Services and any products delivered hereunder (such Intellectual Property, the “Client IP”). The use by Service Provider of any Client IP in accordance with this Agreement will not infringe or otherwise conflict with the rights of any other Person or entity. There is no settled, pending, or threatened litigation, opposition, or other claim or proceeding challenging the validity, enforceability, ownership, registration, or use of any Client IP.
    1. Service Provider represents and warrants that:
      1. Service Provider is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws of its jurisdiction of formation. Service Provider has full power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by Service Provider of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action on the part of Service Provider. This Agreement has been duly executed and delivered by Service Provider, and (assuming due authorization, execution and delivery by Client) this Agreement constitutes legal, valid and binding obligations of Service Provider, enforceable against Service Provider in accordance with their respective terms.
      1. No consent, approval, waiver or authorization is required to be obtained by Service Provider from any Person or entity (including any governmental authority) in connection with the execution, delivery and performance by Client of this Agreement and the consummation of the transactions contemplated hereby.
    1.  EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 10, (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
  11. Indemnification.
    1. Client shall defend, indemnify and hold harmless Service Provider and its officers, managers, directors, employees, agents, successors and permitted assigns from and against all Losses arising out of or resulting from:
      1. bodily injury, death of any Person or damage to real or tangible, Personal property resulting from the grossly negligent or willful acts or omissions of Client; and
      1. Client’s breach of any representation, warranty or obligation of Client in this Agreement.
    1. Service Provider shall defend, indemnify and hold harmless Client and its officers, managers, directors, employees, agents, successors and permitted assigns from and against all Losses arising out of or resulting from:
      1.  bodily injury, death of any Person or damage to real or tangible, Personal property resulting from the grossly negligent or willful acts or omissions of Service Provider; and
      1. Service Provider’s breach of any representation, warranty or obligation of Service Provider in this Agreement;

provided, however,
that the aggregate amount of all Losses for which Service Provider shall be
liable pursuant this Section 11(b) shall not exceed the aggregate amount of
fees paid to Service Provider under this Agreement. The forgoing limitation
shall not apply to Losses based upon or arising out of any common law fraud or
willful misconduct by Service Provider. 

  1. Definitions.
    Capitalized terms used and not otherwise defined herein shall have the
    following meaning:

Affiliate” of a Person means any other
Person that directly or indirectly, through one or more intermediaries, controls,
is controlled by, or is under common control with, such Person. The term “control”
(including the terms “controlled by” and “under common control with”) means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise

Business Day” means any day except
Saturday, Sunday or any other day on which commercial banks located in Miami,
Florida are authorized or required by applicable law to be closed for business.

Client Materials” means any documents,
data, know-how, methodologies, software and other materials provided to Service
Provider by Client, including computer programs, reports and specifications.

Deliverables” means all documents, work
product and other materials that are delivered to Client hereunder or prepared
by or on behalf of Service Provider in the course of performing the Services,
including any items identified as such in a Statement of Work.

Intellectual Property Rights” means all
(a) patents, patent disclosures and inventions (whether patentable or not), (b)
trademarks, service marks, trade dress, trade names, logos, corporate names and
domain names, together with all of the goodwill associated therewith, (c)
copyrights and copyrightable works (including computer programs), and rights in
data and databases, (d) trade secrets, know-how and other confidential
information, and (e) all other intellectual property rights, in each case
whether registered or unregistered and including all applications for, and
renewals or extensions of, such rights, and all similar or equivalent rights or
forms of protection in any part of the world.

Losses” mean all losses, damages,
liabilities, deficiencies, actions, judgments, interest, awards, penalties,
fines, costs or expenses of whatever kind, including reasonable attorneys’ fees
and the cost of enforcing any right to indemnification hereunder and the cost
of pursuing any insurance providers.

Pre-Existing Materials” means all
documents, data, know-how, methodologies, software and other materials,
including computer programs, reports and specifications, provided by or used by
Service Provider in connection with performing the Services, in each case
developed or acquired by the Service Provider prior to the commencement or
independently of this Agreement.

Person” means an individual,
corporation, partnership, joint venture, limited liability company,
governmental authority, unincorporated organization, trust, association or
other entity.

Project” means a project as described
in a Statement of Work.

Service Provider Personnel” means all
employees and Subcontractors, if any, engaged by Service Provider to perform
the Services.

Services” mean any professional or
other services to be provided by Service Provider under this agreement, as
described in more detail in a Statement of Work, and Service Provider’s
obligations under this Agreement.

Statement of Work” means each Statement
of Work entered into by the parties and attached to this Agreement.

Subcontractor” means any third-party
contractor or vendor chosen by Service Provider to provide a specific product
or service in connection with any Project. 

  1. Miscellaneous.
    1. No party shall be liable or responsible to the other
      party, nor be deemed to have defaulted under or breached this Agreement, for
      any failure or delay in fulfilling or performing any term of this Agreement
      (except for any obligations to make payments to the other party hereunder),
      when and to the extent such failure or delay is caused by or results from the
      following force majeure events (a “Force
      Majeure Event
      ”): (a) acts of G-d; (b) flood, fire, earthquake, hurricane or
      explosion; (c) war, invasion, hostilities (whether war is declared or not),
      terrorist threats or acts, riot, or other civil unrest; (d) government order or
      law; (e) actions, embargoes, or blockades in effect on or after the date of
      this Agreement; (f) action by any governmental authority; (g) national or
      regional emergency; (h) strikes, labor stoppages or slowdowns, or other
      industrial disturbances; (i) shortage of adequate power (including any downtime
      caused by failure of the power grid) or transportation facilities; and (j)
      other similar events beyond the reasonable control of the party impacted by the
      Force Majeure Event.
    1. All notices, requests, consents, claims, demands,
      waivers and other communications hereunder shall be in writing and shall be
      deemed to have been given (i) when delivered by hand (with written confirmation
      of receipt); (ii) when received by the addressee if sent by a nationally
      recognized overnight courier (receipt requested); (iii) on the date sent by
      facsimile (with confirmation of transmission) if sent during normal business hours
      of the recipient, and on the next Business Day if sent after normal business
      hours of the recipient or (iv) on the third day after the date mailed, by
      certified or registered mail, return receipt requested, postage prepaid. Such
      communications must be sent to the respective parties at the addresses
      indicated below (or at such other address for a party as shall be specified in
      a notice given in accordance with this Section 13(b)).

If to Service Provider: Brandstar Digital Marketing
2765 W. Cypress Creek Road, Suite B
Fort Lauderdale, FL 33309
Email: seth@wizarddigital.com
Attn: Seth Rand, CEO  
   
   

  • For purposes of this Agreement, (i) the words “include,”
    “includes” and “including” shall be deemed to be followed by the words “without
    limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein,”
    “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a
    whole. Unless the context otherwise requires, references herein: (x) to
    Sections, Schedules, Exhibits and Statements of Work refer to the Sections of,
    and Schedules, Exhibits and Statements of Work attached to this Agreement; (y)
    to an agreement, instrument or other document means such agreement, instrument
    or other document as amended, supplemented and modified from time to time to
    the extent permitted by the provisions thereof and (z) to a statute means such
    statute as amended from time to time and includes any successor legislation
    thereto and any regulations promulgated thereunder. This Agreement shall be
    construed without regard to any presumption or rule requiring construction or
    interpretation against the party drafting an instrument or causing any
    instrument to be drafted. The Schedules, Exhibits and Statements of Work
    referred to herein shall be construed with, and as an integral part of, this
    Agreement to the same extent as if they were set forth verbatim herein.

     

    • This Agreement, together with all Schedules, Exhibits
      and Statements of Work and any other documents incorporated herein by
      reference, constitutes the sole and entire agreement of the parties to this
      Agreement with respect to the subject matter contained herein, and supersedes
      all prior and contemporaneous understandings and agreements, both written and
      oral, with respect to such subject matter. In the event of any conflict between
      the terms and provisions of this Agreement and those of any Schedule, Exhibit
      or Statement of Work, the following order of precedence shall govern: (i)
      first, this Agreement, exclusive of its Exhibits and Schedules; (ii) second,
      the applicable Statement of Work; and (c) third, any Exhibits and Schedules to
      this Agreement.
    • Except as otherwise provided in Section 1 with respect
      to Service Provider’s ability to subcontract, neither party may assign,
      transfer or delegate any or all of its rights or obligations under this Agreement,
      without the prior written consent of the other party; provided, that, upon
      prior written notice to the other party, either party may assign the Agreement
      to an Affiliate of such party or to a successor of all or substantially all of
      the assets of such party through merger, reorganization, consolidation or
      acquisition. 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. This Agreement shall be
      binding upon and shall inure to the benefit of the parties hereto and their
      respective successors and permitted assigns.
    • Except as provided in Section 11 (which shall be for
      the benefit of the Persons entitled to indemnification as provided therein), this
      Agreement is for the sole benefit of the parties hereto and their respective
      successors and permitted assigns and nothing herein, express or implied, is
      intended to or shall confer upon any other Person any legal or equitable right,
      benefit or remedy of any nature whatsoever, under or by reason of this
      Agreement.
    • The headings in this Agreement are for reference only
      and shall not affect the interpretation of this Agreement.
    • This Agreement may only be amended, modified or
      supplemented by an agreement in writing signed by each party hereto. No waiver
      by any party of any of the provisions hereof shall be effective unless
      explicitly set forth in writing and signed by the party so waiving. Except as
      otherwise set forth in this Agreement, no failure to exercise, or delay in
      exercising, any rights, remedy, power or privilege arising from this 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.
    • If any term or provision of this Agreement is invalid,
      illegal or unenforceable in any jurisdiction, such invalidity, illegality or
      unenforceability shall not affect any other term or provision of this Agreement
      or invalidate or render unenforceable such term or provision in any other
      jurisdiction. Upon such determination that any term or other provision is
      invalid, illegal or unenforceable, the parties hereto shall negotiate in good
      faith to modify this Agreement so as to affect the original intent of the
      parties as closely as possible in a mutually acceptable manner in order that
      the transactions contemplated hereby be consummated as originally contemplated
      to the greatest extent possible.
    • This Agreement shall be governed by and construed in
      accordance with the internal laws of the State of Florida without giving effect
      to any choice or conflict of law provision or rule (whether of the State of Florida
      or any other jurisdiction) that would cause the application of laws of any
      jurisdiction other than those of the State of Florida. Any legal suit, action
      or proceeding arising out of or related to this Agreement or the Services
      provided hereunder shall be instituted exclusively in the federal courts of the
      United States or the courts of the State of Florida in each case located in the
      city of Fort Lauderdale and County of Broward, and each party irrevocably
      submits to the exclusive jurisdiction of such courts in any such suit, action
      or proceeding. Service of process, summons, notice or other document by mail to
      such party’s address set forth herein shall be effective service of process for
      any suit, action or other proceeding brought in any such court. Each party irrevocably and unconditionally
      waives any right it may have to a trial by jury in respect of any legal action
      arising out of or relating to this Agreement or the transactions contemplated
      hereby.
    • Each party acknowledges that a breach by a party of
      Section 8 or Section 9 may cause the non-breaching party irreparable damages,
      for which an award of damages would not be adequate compensation and agrees
      that, in the event of such breach or threatened breach, the non-breaching party
      will be entitled to seek equitable relief, including a restraining order,
      injunctive relief, specific performance and any other relief that may be
      available from any court, in addition to any other remedy to which the
      non-breaching party may be entitled at law or in equity. Such remedies shall
      not be deemed to be exclusive but shall be in addition to all other remedies
      available at law or in equity, subject to any express exclusions or limitations
      in this Agreement to the contrary.

This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall be deemed to be one and the same
agreement. A signed copy of this Agreement delivered by facsimile, e-mail or
other means of electronic transmission shall be deemed to have the same legal
effect as delivery of an original signed copy of this Agreement

Master Services Agreement Terms and Conditions

Master Services Agreement Terms and Conditions

RECITALS

            WHEREAS, Client desires to engage Service Provider and Service Provider desires to be engaged by Client subject to the terms and conditions provided herein.

            NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:

  1. Services.
    1. Client hereby engages Service Provider, and Service Provider hereby accepts such engagement, as an independent contractor, to provide the Services to Client as described in more detail in each Statement of Work in accordance with the terms and conditions of this Agreement. In connection with performing the Services, Service Provider is authorized to subcontract the Services to such third-party subcontractors as Service Provider may determine in its sole discretion.
    2. Each Statement of Work shall include the following information, if applicable:

a)    a detailed description of the Services to be performed pursuant to the Statement of Work;

b)   the date upon which the Services will commence and the term of such Statement of Work;

c)    the fees to be paid to Service Provider under the Statement of Work;

d)   any criteria for completion of the Services and/or Project; and

e)    any other terms and conditions agreed upon by the parties in connection with the Services to be performed pursuant to such Statement of Work.

  1. Client Obligations.
    1. Client shall appoint an individual and notify Service Provider of their selection of “Authorized Person” to receive all correspondence, whether written, oral or electronic, arising from or relating to this Agreement and the Services provided, including but not limited to all draft work product Service Provider may create on behalf of Client hereunder. The Authorized Person shall have full decision-making authority to approve all matters on behalf of Client arising from or relating to this Agreement and the Services provided and Service Provider shall be entitled to rely on the Authorized Person without the need to seek confirmation from any other Person. Client may remove and replace an Authorized Person for any reason without the consent of Service Provider. In the event Client appoints a new Authorized Person, Client shall promptly notify Service Provider in writing.
    2. Client shall (i) cooperate with Service Provider in all matters relating to the Services; (ii) respond promptly to any Service Provider request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement; and (iii) provide such information as Service Provider may request in order to carry out the Services in a timely manner and ensure that it is completed.
    3. Client hereby grants Service Provider access to its server, including FTP, Cpanel, and website admin rights, and Client’s Google Analytics, Google Ads, Google Webmaster Tools, Google My Business, Google Merchant Center, if applicable, and all other accounts needed to perform the Services. Client shall provide Service Provider with all information, including any passwords, necessary for Service Provider to access the forgoing.
    4. If Client has an open source website, or has an open source website being developed, Client agrees to promptly select a web hosting provider which allows Service Provider full FTP access to the website hosting environment.
    5. If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client, any Authorized Person or its agents, subcontractors, consultants or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
    6. With respect to any website developed by Service Provider on behalf of Client hereunder, Client acknowledges and agrees that: (i) prior to completion, Client’s access to the website shall be limited to viewing and testing the website at such times and to such extent as Service Provider reasonably determines; (ii) Service Provider shall host the site on a development / staging server prior to launch; (iii) Service Provider reserves the right to go offline for purposes of maintenance, upgrades and testing; (iv) Service Provider may recommend hosting providers to the Client; provided that Service Provider is not responsible for any issues or interruptions in service with any hosting provider; (v) upon completion, Service Provider shall provide Client with full access to the website files and databases and shall provide all files at such a time and Client hereby authorizes Service Provider to submit Client’s completed website to any internet search engine; and (vi) Service Provider is not the host or otherwise responsible for hosting such website, such website shall be hosted by a third party, and Client shall look solely to that third party (and not Service Provider) for any Losses incurred by Client as a result of such website crashing for any reason, including but not limited to a surge in Internet traffic to such website.
    7. Client shall not lock Service Provider out of its website or related accounts prior to Service Provider receiving full payment of fees and expenses as provided in this Agreement. 
    8. Client authorizes Service Provider to display Deliverables provided by Service Provider to Client hereunder as examples of Service Provider’s work product in any of Service Provider’s marketing materials, whether online or offline and in any format. 
    9. Client acknowledges and agrees that Service Provider shall not be responsible for or have any liability with respect to any Losses incurred by Client arising from or relating to any modifications made by any third party to any Deliverables provided hereunder, including but not limited to Client’s websites, digital media, and other materials once placed.
  2. Change Orders.
    1. If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other in writing. Service Provider shall, within a reasonable time after such request (and, if such request is initiated by Client, not more than 10 Business Days after receipt of Customer’s written request), provide a written estimate to Client of:

a)    the likely time required to implement the change;

b)   any necessary variations to the fees and other charges for the Services arising from the change;

c)    the likely effect of the change on the Services; and

d)   any other impact the change might have on the performance of this Agreement.

    1. Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 13(h).
  1. Term. This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the services under all Statements of Work and for a minimum term of twelve months as provided herein. The period beginning the Effective Date and ending the date this Agreement is terminated as provided herein is referred to herein as the “Term”. 
  2. Fees and Expenses; Payments Terms.
    1. In consideration of the provision of the Services by the Service Provider and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the applicable Statement of Work. Payment to Service Provider of such fees and the reimbursement of expenses pursuant to this Section 5 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.
    2. Where the Services are provided on a time and materials basis:

a)    the fees payable for the Services shall be calculated in accordance with Service Provider’s hourly fee rates set forth in the applicable Statement of Work; and

b)   Service Provider shall issue invoices to Client monthly in arrears for its fees for time for the immediately preceding month, calculated as provided in this Section 5(b), together with a detailed breakdown of any expenses for such month incurred in accordance with Section 5(d).

    1. Where Services are provided for a fixed price, the total fees for the Services shall be the amount set out in the applicable Statement of Work. The total price shall be paid to Service Provider in installments, as set out in the Statement of Work. Service Provider shall issue invoices to Client for the fees that are then payable, together with a detailed breakdown of any expenses incurred in accordance with Section 5(d).
    2. Client agrees to reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services that have been approved in advance in writing by Customer.
    3. Service Provider shall issue invoices to Client only in accordance with the terms of this Section, and Customer shall pay all properly invoiced amounts due to Service Provider upon Customer’s receipt of such invoice. In the event Client does not object to any invoice issued by Service Provider within ten (10) calendar days after issuance, Client shall be deemed to have accepted such invoice as complete and accurate as stated and Client waives the right to later object to the accuracy or reasonableness. In the event Client fails to pay such amount when due, Client shall pay to Service Provider, in addition to the amount due,  a late fee equal to 5.00% of the amount due (the “Late Fee”) plus interest on the aggregate amount due plus Late Fee at the highest maximum legal rate beginning the applicable due date until paid, compounded monthly.  In addition, in the event a check, draft, order, payment debit card order or electronic funds transfer (each a “Payment Instrument”) is refused by the drawee because of lack of funds, lack of credit, or lack of an account, All payments hereunder shall be in US dollars.
    4. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or 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.
  1. Relationship of the Parties. Service Provider is an independent contractor of the Client and this Agreement shall not be construed to create any association, partnership, joint venture or agency relationship between Client and Service Provider for any purpose.
  2. Termination; Effect of Termination.
    1. Either party, in its sole discretion, may terminate this Agreement or any Statement of Work, in whole or in part, after the initial twelve month term, without cause, by providing at least thirty (30) calendar days’ prior written notice to the other party. If this Agreement is canceled by Client without cause within twelve months of the Effective Date, Client still owes the contract value.
    2. Upon expiration of this Agreement for any reason:

a)    Client shall promptly pay Service Provider for all costs incurred by Service Provider (including outstanding invoices due to Subcontractors and any advance payments made by Service Provider to Subcontractors) on or prior to the date Client notifies Service Provider of such termination, to the extent not previously paid by Client.

b)   Upon payment of all applicable fees and other expenses to be paid hereunder by Client, Service Provider shall deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid and all Customer Materials.

  1. Intellectual Property.
    1. Effective immediately upon payment of all applicable fees and other expenses to be paid hereunder by Client to Service Provider for any applicable Deliverables and except as set forth in Section 8(c), Service Provider hereby grants to Client all right, title and interest in and to such Deliverables, including all Intellectual Property Rights therein. Service Provider agrees and will cause its Service Provider Personnel to agree (to the extent reasonably feasible), that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. §101, such Deliverables are hereby deemed a “work made for hire” for Client. To the extent that any of the Deliverables 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 (to the extent reasonably feasible), in each case without additional consideration, all right, title and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. The Service Provider shall cause, to the extent reasonably feasible, 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 Deliverable.
    2. Upon the reasonable request of Client, Service Provider shall, and shall to the extent reasonably feasible 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.
    3. Notwithstanding anything in this Agreement to the contrary, Service Provider and its licensors are, and shall remain, the sole and exclusive owners of all right, title and interest in and to the Pre-Existing Materials, including all Intellectual Property Rights therein. Service Provider hereby grants Client a limited, irrevocable, perpetual, fully paid-up, royalty-free, non-transferable (except in accordance with Section 18.7), non-sublicenseable, worldwide license to any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables solely to the extent reasonably required in connection with Client’s receipt or use of the Services and Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Service Provider.
  2. Negative Covenants.
    1. Client agrees and covenants that, during the Term and for a period of two (2) years thereafter beginning the date this Agreement is terminated for any reason, it shall not, directly or indirectly, solicit, hire, recruit, or attempt to solicit, hire, or recruit, or otherwise engage in any business relationship of any kind with any of Service Provider’s Service Provider Personnel, in each case, without the prior written consent of Service Provider, which may be given or withheld in Service Provider’s sole and absolute discretion.
    2. Client agrees and covenants that it shall not, directly or indirectly, at any time make, publish or communicate to any Person or entity or in any public forum any defamatory, maliciously false, or disparaging remarks, comments, or statements concerning Service Provider or its business or any of its employees, officers, or managers and its existing and prospective customers, suppliers, investors and other associated third parties, no or in the future.  
  1. Representations and Warranties.
    1. Client represents and warrants that:

a)    Client is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws of its jurisdiction of formation. Client has full power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by Client of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action on the part of Client. This Agreement has been duly executed and delivered by Client, and (assuming due authorization, execution and delivery by Service Provider) this Agreement constitutes legal, valid and binding obligations of Client, enforceable against Client in accordance with their respective terms.

b)   No consent, approval, waiver or authorization is required to be obtained by Client from any Person or entity (including any governmental authority) in connection with the execution, delivery and performance by Client of this Agreement and the consummation of the transactions contemplated hereby.

c)    Client shall be responsible for all fees and costs of any Subcontractor incurred by Service Provider in connection with any Project, including any additional fees and costs incurred in excess of amounts previously quoted or included in a Statement of Work, provided that Client previously consented to or otherwise requested such additional fees and costs.

d)   Client owns or has an adequate, valid and enforceable rights to use all Intellectual Property provided to Service Provider for use by Service Provider in connection with providing the Services and any products delivered hereunder (such Intellectual Property, the “Client IP”). The use by Service Provider of any Client IP in accordance with this Agreement will not infringe or otherwise conflict with the rights of any other Person or entity. There is no settled, pending, or threatened litigation, opposition, or other claim or proceeding challenging the validity, enforceability, ownership, registration, or use of any Client IP.

    1. Service Provider represents and warrants that:

a)    Service Provider is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws of its jurisdiction of formation. Service Provider has full power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by Service Provider of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action on the part of Service Provider. This Agreement has been duly executed and delivered by Service Provider, and (assuming due authorization, execution and delivery by Client) this Agreement constitutes legal, valid and binding obligations of Service Provider, enforceable against Service Provider in accordance with their respective terms.

b)   No consent, approval, waiver or authorization is required to be obtained by Service Provider from any Person or entity (including any governmental authority) in connection with the execution, delivery and performance by Client of this Agreement and the consummation of the transactions contemplated hereby.

    1.  EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 10, (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
  1. Indemnification.
    1. Client shall defend, indemnify and hold harmless Service Provider and its officers, managers, directors, employees, agents, successors and permitted assigns from and against all Losses arising out of or resulting from:

a)    bodily injury, death of any Person or damage to real or tangible, Personal property resulting from the grossly negligent or willful acts or omissions of Client; and

b)   Client’s breach of any representation, warranty or obligation of Client in this Agreement.

    1. Service Provider shall defend, indemnify and hold harmless Client and its officers, managers, directors, employees, agents, successors and permitted assigns from and against all Losses arising out of or resulting from:

a)     bodily injury, death of any Person or damage to real or tangible, Personal property resulting from the grossly negligent or willful acts or omissions of Service Provider; and

b)   Service Provider’s breach of any representation, warranty or obligation of Service Provider in this Agreement;

provided, however, that the aggregate amount of all Losses for which Service Provider shall be liable pursuant this Section 11(b) shall not exceed the aggregate amount of
fees paid to Service Provider under this Agreement. The forgoing limitation
shall not apply to Losses based upon or arising out of any common law fraud or
willful misconduct by Service Provider. 

Definitions.
Capitalized terms used and not otherwise defined herein shall have the
following meaning:

Affiliate” of a Person means any other
Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise

Business Day” means any day except Saturday, Sunday or any other day on which commercial banks located in Miami, Florida are authorized or required by applicable law to be closed for business.

Client Materials” means any documents, data, know-how, methodologies, software and other materials provided to Service Provider by Client, including computer programs, reports and specifications.

Deliverables” means all documents, work product and other materials that are delivered to Client hereunder or prepared by or on behalf of Service Provider in the course of performing the Services, including any items identified as such in a Statement of Work.

Intellectual Property Rights” means all
(a) patents, patent disclosures and inventions (whether patentable or not), (b)
trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c)
copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Losses” mean all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

Pre-Existing Materials” means all documents, data, know-how, methodologies, software and other materials, including computer programs, reports and specifications, provided by or used by Service Provider in connection with performing the Services, in each case developed or acquired by the Service Provider prior to the commencement or
independently of this Agreement.

Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or
other entity.

Project” means a project as described in a Statement of Work.

Service Provider Personnel” means all employees and Subcontractors, if any, engaged by Service Provider to perform the Services.

Services” mean any professional or other services to be provided by Service Provider under this agreement, as described in more detail in a Statement of Work, and Service Provider’s obligations under this Agreement.

Statement of Work” means each Statement of Work entered into by the parties and attached to this Agreement.

Subcontractor” means any third-party contractor or vendor chosen by Service Provider to provide a specific product or service in connection with any Project. 

 

Miscellaneous.

    1. No party shall be liable or responsible to the other
      party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from the following force majeure events (a “Force
      Majeure Event
      ”): (a) acts of G-d; (b) flood, fire, earthquake, hurricane or
      explosion; (c) war, invasion, hostilities (whether war is declared or not),
      terrorist threats or acts, riot, or other civil unrest; (d) government order or
      law; (e) actions, embargoes, or blockades in effect on or after the date of
      this Agreement; (f) action by any governmental authority; (g) national or
      regional emergency; (h) strikes, labor stoppages or slowdowns, or other
      industrial disturbances; (i) shortage of adequate power (including any downtime caused by failure of the power grid) or transportation facilities; and (j) other similar events beyond the reasonable control of the party impacted by the Force Majeure Event.
    2. All notices, requests, consents, claims, demands,
      waivers and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 13(b)).

If to Service Provider:

BrandStar Digital, LLC
3850 Powerline Road
Deerfield Beach, FL 33073
Email: seth@brandstardigital.com
Attn: Seth Rand, President 

  • For purposes of this Agreement, (i) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to
    Sections, Schedules, Exhibits and Statements of Work refer to the Sections of, and Schedules, Exhibits and Statements of Work attached to this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to
    the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Schedules, Exhibits and Statements of Work referred to herein shall be construed with, and as an integral part of, this
    Agreement to the same extent as if they were set forth verbatim herein.
    • This Agreement, together with all Schedules, Exhibits
      and Statements of Work and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Schedule, Exhibit or Statement of Work, the following order of precedence shall govern: (i) first, this Agreement, exclusive of its Exhibits and Schedules; (ii) second, the applicable Statement of Work; and (c) third, any Exhibits and Schedules to
      this Agreement.
    • Except as otherwise provided in Section 1 with respect
      to Service Provider’s ability to subcontract, neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party; provided, that, upon prior written notice to the other party, either party may assign the Agreement to an Affiliate of such party or to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation or acquisition. 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. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
    • Except as provided in Section 11 (which shall be for the benefit of the Persons entitled to indemnification as provided therein), this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
    • The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
    • This Agreement may only be amended, modified or
      supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this 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.
    • If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or
      unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    • This Agreement shall be governed by and construed in
      accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Florida. Any legal suit, action or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in the city of Fort Lauderdale and County of Broward, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
    • Each party acknowledges that a breach by a party of
      Section 8 or Section 9 may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.