Master Service Agreement

MASTER SERVICE AGREEMENT

Last updated August 31, 2021

 

This MASTER SERVICES AGREEMENT (hereinafter the “Agreement”), governs services performed by  Telemarketr, Inc., d/b/a FLEXFIG, a Georgia corporation (“FLEXFIG”) pursuant to the terms of an Additional Services Agreement. Services performed under this Agreement will be conducted in accordance with and be subject to the terms and conditions of this Agreement, the Privacy Policy, Terms of Use, and Additional Services Agreement.

1. PROJECT

1.1 Services.

The Services shall be agreed and described in detail in one or more Additional Services Agreement (individually or collectively, an AS Agreement”), each of which shall also include any extension, modification or amendment to such Services by a Change Order as defined in Section 1.5 below. An AS Agreement shall be in writing and executed by both parties, and incorporated by reference into, and governed by this Agreement. AS Agreement(s) may sometimes be referred to as a “Project” or “Project Documentation”. Each AS Agreement shall set forth, among other things: (a) a description of the Services to be performed; (b) the responsibilities of the parties; (c) an estimated timeline; (d) project milestones and enhancements to be created; and (e) a detailed budget for the Services. This Agreement does not obligate FLEXFIG to perform any Services, until both parties have signed an AS Agreement. To that end, FLEXFIG will only be obligated to perform the Services specified in the signed AS Agreement. In the event of any conflict between this Agreement and the terms of any particular AS Agreement, then the terms of this Agreement shall prevail. Notwithstanding the preceding sentence, in the event that Project Documentation expressly provides that certain provisions therein shall have control over specified provisions of this Agreement, then, to the extent that such provisions of the applicable Project Documentation conflict with or are inconsistent with the specified provisions of this Agreement, such provisions of the applicable Project Documentation shall control but only for the purposes of such AS Agreement.

1.2 Enhancements.

As part of the Project, upon the required payment to FLEXFIG under the applicable Project Documentation, and subject to all other terms and conditions contained herein, FLEXFIG shall deliver to Client those enhancements developed by FLEXFIG and set forth in the applicable Project Documentation (the “Enhancements”). FLEXFIG shall deliver the Enhancements to Client in a timely manner and in accordance with the delivery date(s) set forth in the applicable Project Documentation, subject to Client timely fulfilling its obligations under this Agreement and such applicable Project Documentation. Client will cooperate with FLEXFIG by providing such assistance as may be necessary for FLEXFIG to successfully perform the Services and provide the Enhancements agreed to, including, but not limited to not unreasonably withholding any and all information, processes, and/or efforts that could delay or hinder the Project.  The Enhancements shall be as specified in applicable Project Documentation, and shall be of a quality acceptable to Client in both form and content and as set forth in the applicable Project Documentation.  Enhancements shall be deemed accepted if not rejected within ten (10) days (or such other time period as specified in the applicable Project Documentation) of receipt of such Enhancements.

1.3 Change Orders.

For purposes of this Agreement and any AS Agreement hereunder, a “Change Order” shall mean an agreement between the parties to modify, reduce, or expand the scope of the Services and/or to modify, reduce or increase the fees and/or expenses set forth in any applicable Project Documentation pursuant to the terms of this Section 1.3 (each, a “Change”). For the avoidance of doubt, a Change Order shall not, nor is it intended to, amend the terms of this Agreement. Either party may request a Change Order by providing the other party with a documented Change Order request in the form provided in, or similar to, Exhibit A to this Agreement (a “Change Order Request”). A party having received a Change Order Request shall consider the terms of the request in good faith and within ten (10) days, but shall be under no obligation to agree to, or make a counter proposal to, such request. No Change Order shall be effective until and unless the corresponding Change Order Request document, in which the Change Order is described, is executed by both parties.

The parties acknowledges that the occurrence of certain circumstances, or impending circumstances, that result in, or will result in, a material increase in the resources, manpower, expenditures, or time devoted by FLEXFIG to the performance of Services under the Project Documentation (each an “Unexpected Event”), may result in the initiation of a Change Order request by FLEXFIG. The parties agree that if an Unexpected Event results from any of the below-mentioned circumstances, and the parties cannot within ten (10) days agree to the terms of a Change Order request initiated by FLEXFIG corresponding to any such circumstances, then FLEXFIG shall have the right to terminate the affected AS Agreement for its convenience upon written notice to Client. The aforementioned circumstances include: (a) except to the extent resulting from a force majeure event pursuant to Section 12.9, Client’s failure or refusal to timely perform any of its obligations under the terms of this Agreement or any other such obligations set forth in the applicable Project Documentation, unless such failure or refusal is cured within thirty (30) days of Client’s receipt of written notice from FLEXFIG describing such failure or refusal; or (b) the non-occurrence of any material event that was assumed to occur, or the occurrence of any material event that was assumed not to occur, in accordance with the terms set forth in the “Assumptions” section or otherwise in the applicable Project Documentation. For the avoidance of doubt, in the event that FLEXFIG elects to terminate this Agreement pursuant to Section 4, Client shall pay FLEXFIG for work completed through the effective date of termination, plus any expenses allowed hereunder that FLEXFIG incurred on or before the effective date of termination. In such circumstances, FLEXFIG shall deliver all work performed prior to effective date of termination.

1.4 Schedule.

FLEXFIG shall deliver all Enhancements, perform the services required by the Project Documentation, and complete the Project according to the deadlines and schedule pursuant to the applicable AS Agreements, and subject to Client timely fulfilling its obligations under this Agreement and applicable Project Documentation.

1.5 Delays and Extensions of Time.

If FLEXFIG is delayed at any time in the commencement or progress of the Services by any cause beyond its control, FLEXFIG shall be entitled to an equitable extension of the Term.  In addition, if FLEXFIG incurs additional costs as a result of such delay, FLEXFIG shall be entitled to an equitable adjustment in the fees to be reimbursed for such additional costs. Examples of causes beyond FLEXFIG’s control include, but are not limited to, the following:  acts or omissions of Client or other parties retained by Client; changes in the Services, performance of the Services or the sequencing of the Services ordered by Client, or arising  from decisions of Client; labor disputes not involving  FLEXFIG; concealed or unknown conditions; delay authorized by Client pending dispute resolution; and force majeure and acts of God. In the event delays to the Services are encountered for any material reason, FLEXFIG shall provide prompt written notice to Client of the cause of such delays.  Client and FLEXFIG agree to undertake reasonable steps to mitigate the effect of such delays.

1.6 Method of Performing Services.

FLEXFIG shall have the right to determine the method, details, and means of performing the services. Client shall, however, be entitled to exercise general rights of supervision of services performed by FLEXFIG to ensure satisfactory performance, including the right to inspect, stop work, make suggestions or recommendations as to the details of the work, and propose modifications to the services. Client shall however have no rights regarding FLEXFIG’s workforce selection or project management oversight.

2. COMPENSATION

2.1 Fees.

As consideration for all Services provided under any applicable Project Documentation and any Change Order thereunder, Client shall pay FLEXFIG certain fees specified in the applicable AS Agreement and/or Change Order.  The fee or rates as specified in the applicable Project Documentation shall remain in effect throughout the Term of the applicable AS Agreements unless the parties agree otherwise in writing.

2.2 Invoice and Payment.

Unless otherwise specified in the applicable AS Agreement, FLEXFIG may submit an invoice, once each month, during the Term of this Agreement for portions of the Project performed under the applicable Project Documentation and Client will pay the invoice within fifteen (15) days from date of invoice.

2.3 Late Payments.

Payments not made within 15 days when due hereunder shall accrue interest from the date due at the greater of (a) the highest rate permitted by law or (b) one and one-half percent per month. If Client fails to pay FLEXFIG within 30 days of the date payment is due, FLEXFIG may, in its sole discretion, stop work and keep the job idle until such time as payments that are due be paid in full. Any delay caused by Client‘s failure to timely pay shall extend FLEXFIG’s time in which to complete the Project, and any additional costs incurred by FLEXFIG as a result of such delay, including without limitation, demobilization and remobilization, shall be added to, and thereby increase, the applicable Project fees. If FLEXFIG chooses not to stop work after payment delay, such decision shall not be construed as a waiver of its rights to stop work if future payments are delayed. All attorney fees incurred by FLEXFIG to collect sums owed by Client shall be paid by Client, together with interest as provided above.

2.4 Taxes.

Client shall be responsible for all applicable US sales, use or value-add taxes (hereinafter “Client Obligations”) arising under this Agreement.  FLEXFIG shall be solely responsible for the payment of all other federal, state, local or income, employment, and any other applicable taxes (as further defined in Section 8) pertaining to FLEXFIG’s employees and FLEXFIG’s income.

2.5 Expenses.

If FLEXFIG incurs expenses in connection with a Project during the Term of this Agreement, Client shall promptly reimburse FLEXFIG for all expenses for which Client has provided prior written approval. If Client fails to provide timely approval of reasonable and necessary expenses, FLEXFIG shall have the right to suspend a Project pending such approval without consequence under this Agreement.

3. PROTECTION OF CLIENT TECHNOLOGY SYSTEMS

3.1 Access to Client Technology Systems.

In order to enable FLEXFIG to successfully perform the Project, Client shall provide FLEXFIG with access to software, computer networks, telephone systems, and other components comprising Client’s technology infrastructure (The “Technology Systems”).

3.2 Complying with Applicable Law.

Each Party shall comply at all times with all applicable laws, regulations, codes and standards to the extent applicable to Services.

3.3 Protection of Client Systems.

At all times, FLEXFIG shall take all commercially reasonable measures necessary to protect Client’s Technology Systems from any harm or damage excepting normal wear and tear, and shall use the same care to prevent damage to such Technology Systems as it uses with respect to its own proprietary technology systems which shall not be less than the care a reasonable person would use under similar circumstances.  FLEXFIG shall take reasonable measures to avoid all actions that may compromise the security of Client’s Technology Systems such as introducing malicious programs such as viruses, worms, Trojan horses, e-mail bombs, and backdoor access.

4. TERM & TERMINATION

4.1 Term.

This Agreement shall commence on the Effective Date and shall continue in full force and effect until the Project is either completed or this Agreement is terminated earlier pursuant to the provisions of this Section 4 (the “Term”).

4.2 Termination.

This Agreement may be terminated as follows:

  1. Immediately upon written notice by Client specifying any of the following reasons, each of which shall constitute “Cause”:
    1. Any act of fraud or dishonesty by FLEXFIG;
    2. Any failure by FLEXFIG to comply with applicable law;
    3. FLEXFIG’s breach of any of its representations hereunder and such breach is uncured thirty (30) days after Client delivers written notice of such breach;
    4. FLEXFIG’s breach of any of the terms or conditions hereunder and such breach is uncured within ten (10) business days after Client delivers written notice of such breach; or
    5. FLEXFIG’s failure to provide the Services specified in applicable AS Agreements, or any part thereof, for any reason solely attributable to FLEXFIG, where such failure is uncured within thirty (30) days after Client delivers written notice of the failure;
  2. Immediately upon written notice by FLEXFIG specifying any of the following reasons, each of which shall constitute “Cause”:
    1. Any act of fraud or dishonesty by Client;
    2. Any failure by Client to comply with applicable laws, regulations; or
    3. Client’s breach of any of its representations hereunder and such breach is uncured within thirty (30) days after FLEXFIG delivers written notice of such breach; o
    4. Client’s breach of any of the terms or conditions hereunder and such breach is uncured ten (10) business days after Client delivers written notice of such breach;
  3. Immediately upon notice by either party if the other party:
    1. Makes an assignment for the benefit of creditors;
    2. Admits in writing its inability to pay debts as they mature;
    3. A trustee or receiver is appointed for a substantial part of the other party’s assets; or
    4. To the extent termination is enforceable under the U.S. Bankruptcy Code, a proceeding in bankruptcy is instituted against the other party, which is acquiesced in, is not dismissed within 120 days, or results in an adjudication of bankruptcy; or by either party upon twenty (20) days written notice.  Termination pursuant to this provision shall be without liability to Client or FLEXFIG.  If Client terminates pursuant to this Section, Client shall pay FLEXFIG for work completed through the effective date of termination, plus any expenses allowed hereunder that FLEXFIG incurred on or before the effective date of termination. In such circumstances, FLEXFIG shall deliver all work performed prior to effective date of termination.

4.3 Effect of Termination.

Upon termination of this Agreement for any reason, FLEXFIG agrees to immediately return to Client any and all materials belonging to Client in FLEXFIG’s possession, custody or control relating to this Agreement, and to FLEXFIG’s performance hereunder.  FLEXFIG shall also either return or destroy all copies of Client Confidential Information within FLEXFIG’s possession, custody or control.

5. INTELLECTUAL PROPERTY RIGHTS

5.1 Ownership. 

Notwithstanding anything to the contrary contained herein, FLEXFIG and its suppliers have and will retain all rights, title and interest including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights in and to the Software and all copies, modifications and derivative works thereof including any changes which incorporate any of your ideas, feedback or suggestions. Client acknowledges they are obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.

5.2 Client Rights.

FLEXFIG acknowledges and agrees that, as between FLEXFIG and Client, Client owns all right, title and interest to Client’s Technology Systems, and that FLEXFIG’s work on the Project does not convey to FLEXFIG any such rights.

5.3 FLEXFIG Rights.

Client acknowledges and agrees that, as between FLEXFIG and Client, FLEXFIG owns all right, title and interest to FLEXFIG technologies, processes, documentation, hardware, and software that may be used, developed, already in possession or custody of FLEXFIG, or independently acquired by FLEXFIG during the Project.

6. CONFIDENTIALITY

6.1 Confidential Information.

Each party acknowledges and agrees that it may have access to, or become acquainted with and thereby becoming a “Recipient”, Confidential Information of the other party thereby becoming a “Discloser”.  As used herein, “Confidential Information” means any non-public information about a party, including, without limitation, the party’s business, vendors, customers, products, services, employees, finances, costs, expenses, financial or competitive condition, policies, and practices, computer systems and software programs and programming tools and their respective design, architecture, modules, interfaces, databases and database structures, non-literal elements, capabilities and functionality, source code and object code, research and development efforts, marketing and distribution efforts, licensing, cross-licensing, marketing and distribution practices; computer software programs and other information licensed or otherwise disclosed to a party in confidence by a third party, and any other non-public information that does or may have economic value by reason of not being generally known.  Confidential Information does not include information that is at any time:

  1. Already known to Recipient at the time it is disclosed by Discloser;
  2. Publicly known through no wrongful act of Recipient;
  3. Rightfully received from a third party without restriction on disclosure and without breach of this Agreement;
  4. Developed by Recipient independently and not in connection with the performance of the Project hereunder;
  5. Approved for release by written authorization of Discloser; or
  6. Furnished by Discloser to a third party without written restriction on disclosure.

6.2 Non-Disclosure.

Recipient shall: (a) Use such Confidential Information only for the purposes set forth in this Agreement.  Recipient shall treat such information as strictly confidential, and shall use the same care to prevent disclosure of such information as such party uses with respect to its own confidential and proprietary information, which shall not be less than the care a reasonable person would use under similar circumstances.  Notwithstanding the foregoing, Recipient may disclose Confidential Information to the extent necessary pursuant to applicable federal, state or local law, regulation, court order, or other legal process, provided that Recipient has given Discloser prior written notice of such required disclosure and, to the extent reasonably possible, has given Discloser an opportunity to contest such required disclosure at Discloser’s expense; and (b) Disclose such Confidential Information only to those directors, officers, employees and agents of Recipient:

  1. Whose duties justify their need to know such information; and
  2. Who have been clearly informed of their obligation to maintain the confidential, proprietary and/or trade secret status of such Confidential Information.

7. INJUNCTIVE RELIEF

7.1 Injunctive Relief.

Each party acknowledges that a violation of the provisions of Section 6 (“Confidentiality”), Section 3 (“Protection of Client Technology Systems”), Section 5 (“Intellectual Property Rights”), or Section 11.10 (“Non-Solicitation of Employees”) may cause irreparable harm to the other party not adequately compensable by monetary damages.  In addition to other relief, each party agrees that seeking preliminary and permanent injunctive relief shall be available without the necessity of posting bond to prevent any actual or threatened violation of such provisions.

8. INDEPENDENT CONTRACTOR STATUS

8.1 Independent Contractor.

Client and FLEXFIG agree that FLEXFIG is an independent legal entity.  With respect to all amounts paid or items provided to FLEXFIG pursuant to this Agreement, FLEXFIG agrees that to the extent applicable it is solely responsible for the payment of all legally required benefits, and all federal, state, or local income, employment, or other taxes and/or withholding for or on behalf of FLEXFIG, FLEXFIG’s employees, or any other persons, firms, or corporations consulted or employed by FLEXFIG in performing the Project under this Agreement, including but not limited to workers compensation, unemployment Insurance, employers’ liability, FICA, and social security withholding (hereinafter referred to as “FLEXFIG Obligations”).

8.2 Not Joint Ventures.

Nothing in this agreement shall be construed to constitute FLEXFIG a partner, joint venture, agent, or employee of Client, nor shall FLEXFIG have any authority to bind Client in any respect, and likewise that nothing in this agreement shall be construed to constitute Client a partner, joint venture, agent, or employee of FLEXFIG, nor shall Client have any authority to bind FLEXFIG in any respect, it being the intention of both Parties that Client and FLEXFIG shall remain independent with each Party responsible for its own actions.

9. REPRESENTATIONS & WARRANTIES

9.1 FLEXFIG Representations.

FLEXFIG hereby represents and warrants that:

  1. It has the full power, right, and authority to enter this Agreement and perform the Project specified hereunder;
  2. Any of the Enhancements produced by FLEXFIG in the course of performing the Project hereunder, or any part thereof, are original or properly licensed, and do not infringe on the patent, copyright, trademark other intellectual property rights of any third Party, and are not libelous, slanderous or otherwise unlawful or actionable.  With respect to Enhancements, including without limitation any and all ideas, processes, designs, methods, and know-how which FLEXFIG will disclose or use in performing the Project, FLEXFIG represents and warrants to Client that it has the right to make such disclosure and use without liability to others; and
  3. FLEXFIG will perform all Services in connection with the Project and Enhancements in a professional manner, and that the Project and Enhancements will conform to the requirements set forth in the AS Agreement.

9.2 Client Representations.

Client hereby represents and warrants that:

  1. It has the full power, right, and authority to enter this Agreement and applicable AS Agreements pertaining to the Project; and
  2. Any of the materials including without limiting Client Technology System provided by Client in the course of performing the Project hereunder, or any part thereof, are original or properly licensed, and do not infringe on the patent, copyright, trademark other intellectual property rights of any third party, and are not libelous, slanderous or otherwise unlawful or actionable.

9.3 Warranties.

Except as otherwise provided in this Agreement and the requirements of the applicable Project Documentation, FLEXFIG hereby disclaims all warranties express or implied including warranties of merchantability or fitness for a particular purpose.

9.4 Third-Party Services.

FLEXFIG may need to interact with third-party applications, software, websites and services (“Third-Party Services) in order to provide Services. These Third-Party Services may have their own terms and conditions of use and privacy policies, and your use of these Third-Party Services will be governed and subject to such terms and conditions and privacy policies. Client understands and agrees that FLEXFIG does not endorse and is not responsible or liable for the availability, performance, behavior, features, or content of any Third-Party Services, or for any transaction you may enter into with the provider of any such Third-Party Services, nor does FLEXFIG warrant the compatibility or continuing compatibility of the Third-Party Services with the Services.

10. INDEMNIFICATION; LIMITATION OF LIABILITY; INSURANCE

10.1 FLEXFIG Indemnification.

FLEXFIG will indemnify and defend Client from and against any and all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) resulting from or arising in connection with any third-Party claims, suits, actions, or proceedings alleging:

  1. That the Enhancements, or any portion thereof, infringe upon any United States patent, copyright, trademark, trade secret, or any other intellectual property; or
  2. That FLEXFIG has failed to properly report or pay FLEXFIG Obligations set forth under section 8.1 of this Agreement.

However, FLEXFIG will have no obligation for infringement of intellectual property rights of any third party to the extent that an infringement claim relating to the Enhancements solely arises as a result of:

  1. Use of the Enhancements other than in accordance with any applicable documentation provided by FLEXFIG;
  2. Modification, alteration or revision of the Enhancements not made or approved by or on behalf of FLEXFIG,
  3. Use of the Enhancements in combination with other products or services which is not reasonably anticipated in the specifications for the Enhancements, or
  4. Infringing material consists of components or materials provided to FLEXFIG by or on behalf of Client or by a third party in connection with the Enhancements.

10.2 Client Indemnification.

Client shall indemnify, defend, and hold harmless FLEXFIG, its officers, directors, employees, and representatives from and against any and all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) resulting from or arising in connection with any third-party claim, suit, action, or proceedings alleging:

  1. That Client’s Technology Systems, any hardware or software or any portion thereof, infringe upon any United States patent, copyright, trademark, trade secret, or any other intellectual property; or
  2. That Client has failed to properly report or pay Client Obligations set forth under Section 2.4 of this Agreement.

10.3 Party Indemnifications.

Each party hereto will indemnify the other from and against any and all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) that arise from its

  1. Alleged violation of any law, statute, ordinance, or regulation; or
  2. Negligent or wrongful acts or omissions.

10.4 Cooperation and Control.

In connection with any claim or action described in this Section 10, the party seeking indemnification shall:

  1. Give the indemnifying party prompt written notice of the claim;
  2. Cooperate with the indemnifying party in connection with the defense and settlement of the claim; and
  3. Permit the indemnifying party to control the defense and settlement of the claim, provided that the indemnifying party may not settle the claim without the indemnified party’s prior written consent (which will not be unreasonably withheld).  At its option, the indemnified party (at its cost) may participate in the defense and settlement of the claim.

10.5 Limitation of Liability.

Except for the breach of Section 6, Section 10.1 (a), (b) and 10.2, neither party shall be responsible or held liable to the other for consequential, incidental, punitive or special damages, including but not limiting to, loss of data/programs or lost profits, loss of goodwill, work stoppage, computer failure or any and all other commercial damages or losses whether directly or indirectly caused even if such party has been advised of the possibility of such damages. Except for payment obligations of Client for the Services satisfactorily performed and delivered, in no event will either party’s liability to other for damages, regardless of the form of the action, exceed the amount paid under the applicable AS Agreement during twelve (12) months immediately preceding the date of the incident giving rise to the action, regardless of whether an action is brought in contract or in tort, including negligence, strict liability, or otherwise.

10.6 Insurance.

Nature and Amounts. FLEXFIG shall maintain sufficient insurance coverage to enable it to meet its obligations under this Agreement and by law. Without limiting the foregoing, FLEXFIG shall maintain at its sole cost and expense at least the following insurance covering its obligations under this Agreement: (i) commercial general liability including (A) bodily injury, (B) property damage, and (C) personal injury, in an amount not less than one million dollars ($1,000,000) per occurrence; (ii) workers’ compensation at statutory limits; and (iv) professional liability insurance covering errors and omissions and wrongful acts in the performance of the Services with a limit per occurrence of not less than one million dollars ($1,000,000).

11. DISPUTE RESOLUTION

11.1 Intent.

Any dispute, controversy or claim between the parties relating to this Agreement, any AS Agreement or the Services (a “Dispute”) shall be resolved as set forth under this Section 11. The parties shall resolve their Disputes informally to the extent reasonably possible. The parties shall negotiate all disputed matters of separate and joint concern in good faith, with the intention of resolving such issues between them in a mutually satisfactory manner. Nothing in this Section 11 shall preclude the parties from exercising their termination rights granted under law or this Agreement. All written notifications issued between the parties concerning any Disputes shall be sent in accordance with Section 12.4 of this Agreement.

11.2 Informal Resolution.

If a Dispute occurs then the project managers of both parties shall confer within three (3) days after a written request by either party to resolve the Dispute. If the Dispute remains unresolved after three (3) days of the initial conference, then the party initiating the Dispute complaint shall notify the other party of the unresolved Dispute. Client and FLEXFIG shall each designate an individual representative to informally resolve the Dispute through negotiations. Additional individuals may also participate in the negotiations as agreed to by the parties. If these individual representatives cannot resolve the Dispute within five (5) business days (or any extension period as agreed to by the parties in writing) of the unresolved Dispute notice, the issue shall proceed pursuant to the process described in Section 11.3 below.

11.3 Mandatory Mediation.

If a Dispute cannot be resolved informally, the parties agree to seek to settle the Dispute by mediation under the Commercial Mediation Rules (the “Rules”) of the American Arbitration Association (“AAA”) before commencement of arbitration. Either party may initiate mediation under this Section 11.3 by giving a written notice of mediation to the other party. The notice will contain the current date and briefly state the issue(s) to be mediated. Unless the parties agree otherwise at the time, then within ten (10) business days after receipt of notice of the mediation, the parties will agree on the identity of a mediator, the site for mediation and the method of administering the mediation. If within such ten (10) days the parties are unable to agree on the foregoing matters, the AAA will administer the mediation in Atlanta, Georgia. Each party will bear its own mediation expenses, except that each party will be liable for half of any fees charged by the mediator and any applicable AAA fees.

11.4 Mandatory Arbitration.

If a Dispute cannot be resolved through mediation, the Dispute shall be arbitrated pursuant to the Delaware Rapid Arbitration Act, 10 Del. C. § 5801, et seq. (the “DRAA”). The parties agree to take all steps necessary or advisable to submit any Dispute that cannot be resolved by the parties for arbitration under the DRAA (the “Arbitration”) in accordance with this Section 11.4, and each party represents and warrants that it is not a “consumer” as such term is defined in 6 Del. C. § 2731. By executing this Agreement, (i) each party waives, and acknowledges and agrees that it shall be deemed to have waived, any objection to the application of the procedures set forth in the DRAA, (ii) consents to the procedures set forth in the DRAA, and (iii) acknowledges and agrees that it has chosen freely to waive the matters set forth in subsections (b) and (c) of Section 5803 of the DRAA. IN CONNECTION THEREWITH, EACH PARTY AGREES THAT IT WILL RAISE NO OBJECTION TO THE SUBMISSION OF THE DISPUTE TO ARBITRATION IN ACCORDANCE WITH THIS SECTION 11.4 AND UNDERSTANDS THAT IT WAIVES ANY RIGHT TO LAY CLAIM TO JURISDICTION IN ANY VENUE AND ANY AND ALL RIGHTS TO HAVE THE DISPUTE DECIDED BY A JURY.

12. MISCELLANEOUS

12.1 Entire Agreement.

This Agreement sets forth the entire understanding of the parties and supersedes all previous memoranda, agreements, and negotiations by or between the parties.

12.2 No Exclusivity.

It is understood and agreed that by entering into this Agreement, that FLEXFIG is not obligated and shall not be deemed to be engaged exclusively. During the term of this Agreement, FLEXFIG shall retain the right to perform services for other clients or potential clients that FLEXFIG may enter agreements with.

12.3 Survival.

The obligations under Section 5 (“Intellectual Property Rights”); Section 6 (“Confidentiality”); Section 7 (“Injunctive Relief”); Section 8 (“Independent FLEXFIG Status”); Section 9 (“Representations and Warranties”); Section 10 (“Indemnification; Limitation of Liability), and this Section 11 shall survive the expiration or earlier termination of this Agreement.

12.4 Notices.

All notices and other communications required or permitted to be given under this Agreement will be in writing and will be effective: (a) on the date when actually delivered by hand or by a nationally recognized courier service with tracking capability; (b) on the date when sent by any form of communication not directly involving the physical transmission of paper that creates a record that may be retained, retrieved and reviewed by a recipient thereof and that may be directly reproduced in paper form by such a recipient through an automated process, including but not limited to email, fax and other digital transmissions (“Electronic Transmission”), or (c) if placed in the US mail, three (3) days following deposit via certified service, postage prepaid, directed to the addresses provided in an AS Agreement or any updated addresses provided by such party.

12.5 Governing Law.

This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia without regard to conflicts of law principles.

12.6 Waiver; Modification.

Any failure on the part of any party to enforce at any time, or for any period of time, any of the provisions of this Agreement shall not be deemed or construed to be a waiver of such provisions or of the right of such party thereafter to enforce each and every such provision.  No waiver will be binding unless executed in writing by the party making the waiver.  No alteration of or modification to this Agreement shall be effective unless made in writing and executed by the authorized representatives of both parties.

12.7 Severability.

If one or more of the provisions, or any part of a provision, of this Agreement is for any reason held to be invalid, illegal, or unenforceable in any respect, all other terms shall remain in full force and effect, and the parties shall replace the offending provision with an enforceable provision that most nearly achieves the intent and economic effect of the unenforceable provision.

12.8 Headings.

The Parties recognize and agree that the headings and captions contained in this Agreement are for convenience only and are not to be used in the interpretation of this Agreement.

12.9 Force Majeure.

Neither party shall be liable for any failure or delay in its performance due to circumstances beyond its reasonable control, provided that it notifies the other party as soon as practicable and uses its best efforts to resume performance.

12.10 Non-Solicitation of Employees.

Neither party shall, during and for one year after the termination of this Agreement or any extension thereof, solicit, offer, employ or hire, directly or indirectly, any present or former employee, consultant or agent of the other party or its affiliates, who works or has worked within 12 months period preceding the date of such activity on a Project covered by this Agreement or in any way encourage any such person to leave the other party or such affiliate, to work for the soliciting, offering or encouraging party.

12.11 Counterparts; Electronic Signatures.

This Agreement may be executed in any number of counterparts and by different parties to this Agreement in separate counterparts. Each of these counterparts when so executed will be deemed an original of the Agreement and all counterparts taken together will constitute one and the same agreement. Executed documents delivered by Electronic Transmission are deemed valid for all purposes under this Agreement.

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