CLIENT TERMS AND CONDITIONS

PLEASE READ THIS ENTIRE DOCUMENT CAREFULLY. BY SIGNING THE SUMMARY SHEET, YOU EXPRESSLY AGREE TO AND UNCONDITIONALLY ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT FULLY AGREE TO THESE TERMS, PLEASE DO NOT SIGN THE SUMMARY SHEET.

Definitions:

“Agreement” or “Client Services Agreement” refers to and means: (a) these Terms; (b) the Summary Sheet, Proposal, Work Order, or similar document/agreement into which these Terms are incorporated by reference (a “Summary Sheet”); and (c) any subsequent modifications to the foregoing which are permitted herein. The Agreement is made and entered into between Provider and Client, but subject to Guarantor’s obligations set forth herein. There are no intended third-party beneficiaries under this Agreement.
“Client” refers to and means the person or entity named as “Client” herein or in the Summary Sheet. For purposes of Provider’s obligations to Client, it shall be liable only to the person or entity so named therein. However, for purposes of Client’s obligations to Provider, Client shall be jointly and severally liable to Provider along with the Guarantor.
“Client Fee” refers to and means the total fee set forth in the Summary Sheet to be paid by Client to Provider pursuant to the “Payment Schedule” set forth therein (if any).
“Deliverables” refers to and means any work product, code, systems, or other thing which is produced or provided to the Client as part of the Services.
“Effective Date” refers to and means the earlier of (a). the date upon which the Client signs the Summary Sheet, or (b). the date upon which the Provider grants access to the Deliverables to the Client.
“Equipment” refers to hardware or software provided by Provider to Client on a temporary basis as part of the Services.
“Guarantor” refers to and means the person signing the Summary Sheet on behalf of the Client, if the Client is a non-natural person (i.e., an LLC, corporation, or partnership).
“Party”, whether capitalized or not, refers to and means either Client or Provider.
“Parties”, whether capitalized or not, refers to and means both the Client and Provider collectively.
“Provider” refers to and means exclusively BrickTech, Inc., a Florida corporation.
“Services” refers to the information technology infrastructure support services described in Addendum “A” and any additional services agreed in writing.
“Support Services” refers to and means the technical troubleshooting of hardware and software problems, excluding any work on hardware or software that (a) is past the manufacturer’s end of life or end of support date, (b) is not fully supported by the manufacturer, or (c) does not have an active manufacturer’s warranty and support contract.
“Summary Sheet” refers to and means the Summary Sheet into which these Terms are incorporated by reference. “Summary Sheet” also refers to and means those future documents or emails which may be signed or accepted by Client from time-to-time memorializing additional Services to be performed by Provider and the fees to be paid by Client in consideration therefor, regardless of whether such documents are entitled as a ‘Summary Sheet’. However, in the event of any conflict or inconsistency between the provisions of any additional Summary Sheet and the Terms, the provisions granting the greater of rights to Provider, or imposing the greater of obligations upon Client, as the case may be, as determined by Provider, shall control and govern.
“Term” and “Term of the Agreement” refers to and means the length of our initial contractual relationship, as set forth in the Summary Sheet, and subject to the provisions hereof regarding termination and notice.
“Terms” refers to these Client Terms and Conditions.
“We” “Us” and “Our”, as used in the Summary Sheet, and whether capitalized or not, refers to and means Provider.
“You” and “Your”, as used in the Summary Sheet, and whether capitalized or not, refers to and means the Client.

Entire Agreement:

The Agreement shall constitute the entire, final, and exclusive agreement and understanding between the Provider, Client, and Guarantor with regards to the subject matter hereof. The provisions of these Terms hereby supersede any prior understanding, representation, or agreement between the parties, whether written or oral, express or implied, which is inconsistent with or contrary to the provisions hereof. In the event of a conflict or inconsistency between the provisions of these Terms and the provisions of the Summary Sheet, the provisions granting the greater of rights to Provider, or imposing the greater of obligations upon Client (as the case may be, and as determined solely by Provider) shall control and govern.

Service Level Agreement Goals:

The Client understands, acknowledges, and agrees that the Provider makes absolutely no representation, warranty, or guarantee regarding uptime, downtime, support ticket acceptance, support response time, or any other related matter regarding the provision of the Services. As a general guideline of the Provider’s goals for reasonable response times, the following shall govern:

Standard Support Requests: 90% of standard support requests typically have a first response within one (1) business day, and a resolution time of three (3) business days (unless waiting on a third party).
Emergency Support Requests: 90% of emergency support requests typically have a first response within four (4) business hours, and a resolution time of one (1) business day (unless waiting on a third party). Emergency priority must be declared upon creation of support request.

1. PROVIDER’S SERVICES

1.1 During the Term of this Agreement, and provided that Client is not in default hereunder, Provider will use reasonable efforts to render the Services, subject to all downtime, response, availability, and other service-level standards as promulgated by Provider from time to time or as may be set forth in an addendum attached hereto or incorporated herein.

1.2 Unless otherwise specifically agreed to by Provider in writing, Support Services are provided during the business hours of 8:00 am – 5:00 pm, Monday through Friday, excluding national holidays. After-hours support is provided only for system-down emergencies. On-site support is provided only after all remote support options are exhausted.

1.3 Support Services are provided only for devices that are compatible with the Provider's current software and support capabilities. The Provider reserves the right to determine which devices are supported and to update the list of supported devices as necessary. Certain devices, including but not limited to Chromebooks, are not supported under this Agreement. Support for other devices, such as Apple devices, may be limited or unavailable due to compatibility issues, manufacturer restrictions, or other factors beyond the Provider's control. The Client acknowledges that the Provider's software is subject to regular updates, which may affect the support provided for certain devices. Additionally, updates to device operating systems or other software by third-party manufacturers may impact the functionality of the Provider's software and the support services. The Provider is not responsible for any loss of functionality or support issues arising from such updates.

1.4 Client shall be considered to have, during the term, a limited, revocable, non-exclusive, non-transferrable, non-sublicensable, local, non-assignable license to access and use any Deliverables provided by Provider, but solely for the purposes prescribed by Provider. Such license is terminable at will by the Provider in the event of a breach or threatened breach of this Agreement by Client or Guarantor (if different).

1.5 Client understands and agrees that Client does not own or obtain any rights in and to any of the Deliverables or Services, except the limited usage license granted herein during the Term. In the event of default by Client, or termination of Services for any reason, the foregoing license shall automatically terminate. For purposes of clarity, the termination of this Agreement shall be synonymous with, and shall serve as the simultaneous termination of the foregoing license.

1.6 Client acknowledges that there are security risks inherent in accessing the Deliverables and rendering the Services, as well as the Client’s transmittal and sharing of data with Provider. Accordingly, Client releases, waives, and discharges all claims, demands, and causes of action, whether at law or in equity, against all of the Provider Parties (as defined below) from any and all liability for any security breach, theft, conversion, loss, misuse, unavailability, downtime, or hacking of or related to the Services, the Deliverables, and any of the platforms used by Provider to deliver, promote, host, store, or market Deliverables or perform the Services. Furthermore, Client understands, acknowledges, and agrees that the Client is solely responsible for strictly complying with all data privacy and restriction laws, rules, or regulations to which it is subject, and shall defend, indemnify, and hold harmless the Provider from and against any breach or violation thereof—even if such violation or breach occurs as part of the Services or Deliverables.

1.7 Client expressly releases Provider and hereby waives all claims and causes of action against Provider, whether at law or in equity, now or hereafter acquired, for lost profits or for consequential, incidental, punitive, or any other form of damages arising from or relating to: (i). use, transmittal, or access of Services or Deliverables (whether authorized or unauthorized), as well as any of the Client’s content, data, or information; (ii). delays in or inability of Provider to provide or render the Services or Deliverables to Client or any third parties designated by Client—regardless of whether such delay or inability is due to foreseeable or unforeseeable circumstances; or (iii). any security breach, theft, conversion, or hacking related to the Services, the Deliverables, any of Client’s hosted or stored information, or any of the platforms used by Provider to deliver, promote, host, store, or market Deliverables.

2. RESTRICTIONS & RESPONSIBILITIES

2.1 Section 1 (and its subparts) sets forth the sole and exclusive obligation of Provider to Client with regards to the performance of the Services and provision of Deliverables.

2.2 Provider is not responsible for any wrongful use of or misuse of Equipment by Client or third parties. Client shall return all Equipment provided by Provider within seven (7) days of termination of this Agreement. Failure to return Equipment will result in Client being charged the full replacement value of the Equipment, payable within ten (10) days of receipt of the invoice.

2.3 Client shall not, either directly or indirectly, at any time during or after the Term of the Agreement or any subsequent renewal term thereof, nor shall Client permit any of Client’s agents, employees, companies, partners, affiliates or subsidiaries, nor the agents, employees, officers, or contractors of any of them, notwithstanding any other provision of the Agreement to the contrary, to do or attempt to do any of the following: (i). Make any use of the Services or Deliverables other than solely for the purposes intended and prescribed by Provider; (ii). reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how or algorithms relevant to the platforms, tools, or software used by Provider to deliver the Services or Deliverables; or (iii). modify, translate, or create derivative works based upon any of the foregoing. Client agrees that only the Client will use the Deliverables and Services. Client shall not permit or enable any third party to engage with or make use of the Services or Deliverables without the prior written consent of the Provider.

2.4 Provider is the exclusive owner of all Deliverables, Services, and all software, applications, inventions, methods, techniques, practices, content, know-how, functions, or other technology arising from or relating to any derivative work created by Provider based on Deliverables. Provider shall under no circumstances be held liable for any data loss relating to, interruption in use of, or theft, hacking, corruption, or infringement of any Deliverables.

2.5 Client hereby expressly covenants to defend, indemnify, and hold harmless Provider and its agents, employees, officers, successors, subsidiaries, parents, affiliates, and assigns (collectively, “Provider Parties”) from and against all claims, causes of action, costs, fees, fines, expenses, losses, and liabilities of any and every kind whatsoever, including attorney’s fees and court costs, which are brought against, sought from, alleged to be the responsibility or fault of, or are incurred by any of the Provider Parties, and which arise from, or in any way relate to: (i). any negligence or intentional wrongful acts by or on behalf of Client or its employees, agents, customers, contractors, officers, subsidiaries, affiliates, or assigns; (ii). the use, non-use, or misuse of the Services or Deliverables by Client or any third party for whose actions Client is responsible; (iii). the breach or threatened breach of any provision of the Agreement by Client; (iv). any act or thing for which any of the Provider Parties are released under this Agreement; or (v). any use, misuse, reproduction, or alteration of any Deliverables or Services by any person or entity, regardless of whether any of the foregoing was foreseeable or known to any of the Provider Parties. Without limiting the generality of the foregoing, the Client specifically covenants to defend, indemnify, save, and hold harmless the Provider Parties from and against any and all claims, demands, and causes of action by any third party (expressly including, but not limited to customers of Client) which arise from or relate in any way to the Services or the Provider’s relationship with Client.

2.6 During the Term of this Agreement and for a period of twenty-four (24) months after the date of termination of this Agreement, Client will not in any way, directly or indirectly: (i) induce or attempt to induce any employee, independent contractor, agent, consultant, customer or client of Provider to terminate its relationship with Provider; (ii) otherwise interfere with or disrupt Provider’s relationship with its employees, independent contractors, agents, consultants and/or customers/clients; (iii) solicit, entice, or hire away any employee, independent contractor, agent, consultant, customer, or client of Provider; or (iv) hire or engage any employee, independent contractor, agent, consultant, customer, or client of Provider or any former employee, independent contractor, agent, consultant, customer or client of Provider whose work or agreement with Provider ceased less than one (1) year before the date of such hiring or engagement. Client acknowledges that any attempt on the part of Client to induce others to leave Provider, or any effort by Client to interfere with Provider’s relationship with its employees, independent contractors, agents, consultants, or customers would be harmful and damaging to Provider; provided, however, that any such persons who did business with Client prior to the date of this Agreement or whom Provider agrees in writing may have a business relationship with Client are not subject to this provision. If Client hires any employee of Provider during the Term or within twenty-four (24) months thereafter, Client shall pay Provider upon demand the sum of Seventy-Five Thousand Dollars ($75,000.00 USD) as liquidated damages, and not as a penalty.

2.7 Client acknowledges that their strict compliance with the terms of section 2.5 above and 3.1 below is necessary to protect the Provider’s legitimate business interests. In addition, the Client specifically agrees that the restrictions contained in section 2.5 and section 3.1 are necessary, reasonable, and material to this Agreement. The Client covenants to refrain from raising any defense or objection to the enforcement of this Agreement. Furthermore, Client understands and agrees that a breach of section 2.5 above or section 3.1 below will damage the Provider in an amount which is difficult, if not impossible, to calculate. Accordingly, and in the event the Client threatens to or actually takes action which constitutes a breach of section 2.5 or section 3.1, then Provider shall be entitled to both temporary and permanent injunctions, as well as an accounting for lost profits and damages. If a bond is required for any legal action against the Client hereunder, the parties hereby stipulate and agree that the sum of $1,000.00 is reasonable and appropriate.

3. CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1 Through the Client’s use of the Deliverables and Services, the Client may obtain access to certain business, technical, or financial information relating to Provider’s business, software, systems, products, or processes (hereinafter referred to as “Proprietary Information”). In addition, the Deliverables and Services themselves are considered “Proprietary Information”. Proprietary Information of Provider also includes all non-public information regarding features, functionality, and performance of its services, design process, and Deliverables. Accordingly, Client hereby covenants: (i). to hold all Proprietary Information in strictest confidence, but at a minimum to employ at least the same or better methods for safeguarding the Proprietary Information as the Provider employs for its own Proprietary Information; and (ii). not to use, disclose, divulge, or reveal, or permit to be disclosed, divulged, or revealed any Proprietary Information of the Provider. During the Term of the Agreement, and always thereafter, Client shall never disclose, copy, share, disseminate, transfer, convey, sell, or discuss, directly or indirectly, to any person or entity other than the parties to this Agreement, the Provider’s Proprietary Information, or any trade secrets or other intellectual property of Provider, except by express prior written consent of a duly authorized officer or director of Provider. Client will not make copies, videotape, record, photograph, or use any other form of transcription method to copy in any way, in whole or in part, any Proprietary Information or marked original copies of Proprietary Information, copyright information, or trade secrets of Provider. Further, Client shall use Client’s best efforts and shall take all reasonable precautions to prevent the disclosure of Provider’s copyright information, trade secrets or other Proprietary Information. A breach of this provision includes, but is not limited to, each disclosure, sharing, dissemination, transfer, conveyance, selling, or discussion of any singular piece of Confidential, trade secret, copyright, and/or proprietary information. Upon termination of this Agreement for any reason, Client shall return all Proprietary Information to Provider within seven (7) days.

3.2 Notwithstanding anything in the Agreement to the contrary, Provider shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and Deliverables and its delivery, use of, and marketing to Client. The Provider shall be permitted (both during and after the Term) to do any of the following: (i). use such information and data to improve and enhance its business operations and for other development, diagnostic, and corrective purposes in connection with the Services and other Provider offerings; and (ii). disclose to third parties such data in connection with its business.

4. PAYMENT OF CLIENT FEE

4.1 Client shall pay to Provider the Client Fee as set forth in the initial Summary Sheet and pursuant to the Payment Schedule included therein. Any fee estimates provided for work to be billed on an hourly or daily basis are for informational purposes only. Client agrees to pay for the actual services provided by Provider at the specified rate. In addition, Client shall pay to Provider when due the sum owed for any additional Services which may be requested by Client and performed by Provider from time to time after the date of the initial Summary Sheet, which additional Services are made subject to these Terms and which expressly incorporate this Agreement by reference. Time is of the essence with regards to all of Client’s payment obligations hereunder. If a particular Payment Schedule or due date is not specified in the initial Summary Sheet or subsequent written document memorializing additional Services to be performed, then the due date shall be considered the Effective Date, and must be paid in advance prior to beginning such Services.

4.2 Unless otherwise specifically agreed to by Provider in writing, the minimum fee for Workstation Support and Server Support combined is Five Hundred Dollars ($500.00) per month for the Foundation package; Six Hundred Dollars ($600.00) per month for the Fortification package and Seven Hundred Dollars ($700.00) per month for the Optimization package. Support services for any devices outside the scope of this Agreement will be billed at Provider’s then-current standard hourly rates, adjusted for normal business hours and/or after-hours (which the Client understands and acknowledges is at a higher rate), rounded up to the nearest 15-minute increment. Client will be billed for one-way travel.

4.3 Client agrees to pay all invoices via auto-pay, unless otherwise agreed to by Provider in writing. Late payments will incur a fee equal to the greater of five percent (5%) of the outstanding balance or Thirty-Five Dollars ($35.00), and shall accrue interest at the highest rate permitted by Florida law. Client agrees that all deposits paid are non-refundable. In the event that any payment by Client is returned or dishonored for lack of sufficient funds, Client shall promptly reimburse Provider upon demand the greater of: (i). any NSF fee charged to Provider as a result thereof; or (ii). Thirty-Five Dollars ($35.00). If Client chooses to make payment by debit card, credit card, or ACH bank withdrawal, Client shall ensure that a current card/bank account information is kept on file with Provider at all times. Provider is entitled to charge any of the debit card(s), credit card(s), or bank account(s) on file which have been given to Provider as payments become due, and without advance notice to Client. If more than one debit card, credit card, or bank account has been provided to Provider, and one of the foregoing is canceled or a charge thereon is declined, Provider may charge any other debit card, credit card, or bank account on file without advance notice to Client. The foregoing constitutes formal payment authorization, and no further or separate instrument shall be required.

4.4 Client agrees not to request, advise, file a claim, or seek Client’s bank or credit card company for a chargeback for consideration paid under this Agreement. Client agrees to waive any rights Client may have under applicable state and federal truth in lending laws or otherwise (including, but not limited to, under Client’s credit card issuer’s procedures for resolving such disputes). Client agrees that any disputes that Client may have with respect to consideration paid hereunder must be addressed directly between Client and Provider. If a chargeback occurs, Client shall have materially breached the Agreement and shall forfeit all remaining services that have not yet been performed under the Agreement. Further, the amount of the chargeback shall be subject to a finance charge in the amount of one and one-half percent (1.5%) per month until paid in full by Client. Further, Provider shall be entitled to recover from Client all damages, and reasonable and necessary attorneys’ fees, and costs associated with pursuing collection and/or recovery of the amount of the chargeback. Client agrees to pay all applicable credit card processing fees (up to 4%) and taxes. Client agrees that their card on file will be charged on the agreed upon dates provided in the Summary Sheet. In addition, Client also agrees that Provider may withdraw smaller charges to the card on file for the purpose of recovering unpaid amounts owed by Client under the Agreement.

4.5 Provider reserves the right, in its sole and absolute discretion, and at any time, to require that future payments be made by Client via wire transfer, ACH transfer, or certified check; provided that Client shall be solely responsible for payment of all fees (including, but not limited to merchant and transfer fees or certified check fees) related thereto. Provider shall in no way be liable for theft, hacking, misappropriation, or security breaches of Client’s payment, bank account, debit card, or credit card information.

4.6 Client understands and acknowledges that the Client Fee is a flat fee which is due to Provider regardless of the performance or non-performance of, payment or non-payment for, or termination of Services or access to Deliverables. All portions of the Client Fee and other fees and costs paid hereunder are non-refundable unless otherwise expressly and separately agreed to in writing by Provider.

4.7 In addition to, and not to the exclusion of any other remedy Provider may have, in the event of nonpayment by Client of any amount owed when due, Provider may suspend performance of the Services, and/or hosting and access to Deliverables.

4.8 The Client acknowledges that, due to periodic increases in the costs incurred by Provider associated with the Services, Provider may, without advance written consent from or notice to Client, increase the Client Fee up to twice per calendar year in an amount equal to the greater of (i). Five Percent (5%), or (ii). the rate of increase in the Consumer Price Index for All Urban Consumers (CPI-U); U.S. City Average; All items, not seasonally adjusted, with a reference base determined by Provider.

5. TERM AND TERMINATION

5.1 The Agreement shall begin as of the date upon which the initial Summary Sheet is signed by Client and shall continue for the entire Term, unless terminated by either party as expressly permitted herein. Unless otherwise set forth in the Summary Sheet, the minimum Term is twelve (12) months. At the end of the initial Term, the Agreement shall automatically renew for successive twelve (12) month periods unless either party provides written notice of termination at least thirty (30) days prior to the end of the then-current Term. No reductions, cancellations, refunds, or prorations are allowed. Notwithstanding anything to the contrary contained herein, and whether occurring during the initial Term or thereafter, the Provider may terminate this Agreement at any time upon written notice to the Client in the event of a breach or threatened breach hereof by Client, or if the Client takes any action that the Provider believes to be unlawful, unethical, or improper.

5.2 In addition, and in the event of the dissolution, bankruptcy, or winding up of Provider, Provider may terminate this Agreement immediately upon notice to Client. For purposes of clarity, Client’s continued performance of all its obligations stated herein shall be considered material to the Agreement, and the default therein shall entitle the Provider to terminate this Agreement upon notice to Client. Termination of this Agreement for any reason will not relieve Client of its payment obligations hereunder. At the time of termination, Provider will advise Client of any outstanding balance, and Client shall remit/authorize payment for the same within three (3) days therefrom. If Client fails to remit/authorize payment for any outstanding balance within the foregoing timeframe, then Provider shall automatically be authorized and entitled to, without further notice or demand, charge any debit card, credit card, or bank account on file with Provider.

5.3 Despite any termination of this Agreement during the Term, the entirety of the Client Fee shall remain due and payable. Additionally, and if the Client attempts to terminate prior to payment of the entire Client Fee, then the Client shall also be responsible for all costs, fees, and expenses incurred by Provider up to and including the date of termination, as calculated by Provider in its sole and absolute discretion. Payment by Client of the foregoing shall not relieve Client of any other payment obligations hereunder, nor shall demand for such payment be considered Provider’s exclusive remedy hereunder.

5.4 All sections of the Agreement which by their nature should survive termination will survive termination, including, without limitation, waivers of and limitations on Provider’s liability, releases by Client, indemnity agreements, venue and choice of law provisions, waivers and disclaimers of warranties and guarantees, and confidentiality provisions. The foregoing list is not exhaustive.

6. WARRANTY DISCLAIMER

Notwithstanding any provision of the Agreement to the contrary, Provider does not warrant, and expressly disclaims all warranties, express or implied, as to: (i) the performance or effectiveness of the Deliverables or Services; (ii) the non-infringement of the Deliverables or Services; and (iii) the Client’s ability to access the Deliverables, including any downtime of the delivery platforms. The Services are provided "as is," and Provider expressly disclaims all warranties, including but not limited to implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Client hereby releases and waives all rights, claims, and actions against Provider, its vendors, officers, affiliates, representatives, assigns, subsidiaries, contractors, and employees (collectively, "Provider Parties") for any indirect, exemplary, incidental, special, or consequential damages, including loss of use, revenue, or profits, or for any matter beyond Provider’s reasonable control, such as acts of God, civil strife, hacking, or security breaches. Client acknowledges that testimonials, case studies, or examples provided by Provider are for illustrative purposes only and do not constitute guarantees or expected results.

7. LIMITATION OF LIABILITY; FORCE MAJEURE

7.1 The sole and exclusive remedy available to Client in any action authorized under this Agreement against Provider shall be limited to the total amount paid by Client to Provider for the Services in the three (3) months immediately preceding the event giving rise to the claim, regardless of whether Provider has been advised of the possibility of additional damages. Client expressly waives the right to seek recovery of any other measure of damages or any other remedy at law or in equity. In no event shall Provider’s total aggregate liability under this Agreement, whether in contract, tort, or otherwise, exceed the aforementioned amount, and this limitation applies to all causes of action, including but not limited to breach of contract, breach of warranty, negligence, and strict liability. Client acknowledges that any remedies explicitly provided in an applicable Service Level Agreement (SLA) referenced in this Agreement do not expand this liability cap. The foregoing shall not operate to expand Client’s rights or to establish damages where they have not otherwise been proved.

7.2 Provider shall not be liable for any failure or delay in performing its obligations under this Agreement if such failure or delay is caused by circumstances beyond Provider’s actual and exclusive control, including but not limited to acts of God, natural disasters, pandemics, war, terrorism, labor disputes, government actions, power failures, internet outages, or third-party service interruptions. In such events, Provider’s obligations shall be suspended for the duration of the force majeure event, and Provider shall use reasonable efforts to mitigate the impact and resume performance as soon as practicable. Client acknowledges that the accessibility and performance of the Services may depend on Client’s compliance with its obligations under this Agreement, including maintaining compatible systems, providing necessary access to personnel and information, and ensuring that Client’s hardware and software meet the requirements specified by Provider. Provider shall not be liable for any interruptions, delays, or failures resulting from Client’s failure to meet these responsibilities.

7.3 Client agrees that any claim, dispute, or cause of action arising out of or relating to this Agreement, the Services, or the Deliverables, including but not limited to any alleged failure to perform or deficiency in performance, shall be limited exclusively to a claim for breach of contract under the terms of this Agreement. To the fullest extent permitted by applicable law, Client hereby expressly waives and releases any and all rights to assert claims against Provider or the Provider Parties (as defined herein) under tort law, including but not limited to claims for negligence, gross negligence, misrepresentation, strict liability, or any other tort-based theory of recovery, whether arising independently or in connection with the Services or Deliverables. Client acknowledges and agrees that the remedies set forth in this Agreement, including but not limited to those in Section 7.1, constitute Client’s sole and exclusive remedies for any alleged breach or failure by Provider, and that this limitation is a material inducement for Provider to enter into this Agreement. This provision shall not apply to claims for injunctive relief or liquidated damages expressly permitted under this Agreement (e.g., breaches of confidentiality under Section 3 or restrictive covenants under Section 2.6), which Provider may pursue in its sole discretion.

8. MISCELLANEOUS

8.1 The Agreement is not assignable, transferable, or sublicensable by Client except with Provider’s prior written consent, which may be withheld in its sole and absolute discretion. Provider may assign the Agreement without the consent of or prior notice to Client.

8.2 Except as otherwise provided herein, no waiver or modification of the Services shall be valid unless made in the form of a writing signed by Provider. However, changes to these Terms may be made unilaterally by Provider from time to time upon written notice to Client (which writing may take the form of an e-mail or series of e-mails by Provider).

8.3 No agency, partnership, joint venture, or employment relationship is created between the parties or their respective personnel by virtue of the Agreement and Client does not have any authority of any kind to bind Provider in any respect whatsoever to any obligation not expressly stated in the Agreement. Provider is an independent contractor of Client. Provider has no control over or responsibility for the business decisions of Client, and therefore Provider shall not be held liable for any action or inaction of Client which is based upon Client’s interaction or relationship with Provider.

8.4 In the event that legal action is taken by either party against the other (or against Guarantor) to enforce the provisions of this Agreement, the prevailing party from such dispute shall be entitled to recover its attorney’s fees and court costs arising from such dispute, together with any fees or costs incurred in determining the amount of fees to be recovered. As used in this subsection the term “prevailing party” means the party prevailing on the substantial matters of law in such legal action.

8.5 All notices under the Agreement must be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next-day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested. Client’s contact information for purposes of legal notices is as set forth in the initial Summary Sheet. Either party may update its contact information for purposes of notice by giving notice of the same to the other party as provided for herein.

8.6 The Agreement shall be governed by the laws of the State of Florida without regard to its conflict or choice of law principles. Venue for any legal action or other proceeding arising from or relating to the Agreement shall be proper, convenient, and exclusive in the county wherein Provider’s principal place of business is located, and both parties hereby expressly and irrevocably consent to the personal jurisdiction of the courts thereof over each party. The parties expressly agree that the Agreement shall be considered to have been made and entered into in such county.

8.7 CLIENT HEREBY EXPRESSLY AND IRREVOCABLY WAIVES CLIENT’S RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION ARISING FROM OR RELATING TO THIS AGREEMENT. CLIENT FURTHER AGREES THAT, EXCEPT FOR BREACHES OF ANY RESTRICTIVE COVENANTS CONTAINED HEREIN (LIQUIDATED DAMAGES FOR HIRING EMPLOYEES, INJUNCTIVE RELIEF, CONFIDENTIALITY, ETC.), WHERE PROVIDER MAY ELECT LITIGATION, ALL DISPUTES SHALL BE RESOLVED EXCLUSIVELY THROUGH BINDING ARBITRATION CONDUCTED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES, WITH A SINGLE ARBITRATOR, IN SEMINOLE COUNTY, FLORIDA, GOVERNED BY THE FEDERAL ARBITRATION ACT AND FLORIDA LAW, EXCLUDING CONFLICT OF LAWS RULES. CLIENT ALSO WAIVES ANY RIGHT TO BRING OR PARTICIPATE IN A CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST PROVIDER OR PROVIDER PARTIES. ARBITRATION AWARDS SHALL BE FINAL AND BINDING.

8.8 Client hereby expressly, absolutely, and irrevocably waives all defenses, whether arising in equity or at law, which may now or hereafter be available to Client, as to the validity and enforcement of this Agreement, including, but not limited to duress, estoppel, failure or lack of consideration, fraud, misrepresentation, lack of capacity, unconscionability, unclean hands, or undue influence. Client and Guarantor expressly agree that all provisions of this Agreement are necessary and reasonable.

8.9 Notwithstanding anything to the contrary in this Agreement, the following process shall govern disputes between the parties: (i) For disputes subject to arbitration under Section 8.7, the parties shall proceed directly to arbitration in accordance with Section 8.7 without any requirement for prior mediation. (ii) For disputes not subject to arbitration, except for an action by Provider against Client or Guarantor arising from or related to nonpayment of sums owed to Provider hereunder, neither party may commence litigation against the other without first providing written notice and demand to the other party setting forth the matters and amounts (if applicable) in dispute, and attempting in good faith to mediate the dispute before a certified mediator in Seminole County, Florida. All defined terms herein shall have the meanings ascribed to them in this Agreement.

8.10 Should any provision of this Agreement be held by a court of competent jurisdiction to be enforceable only if modified, or if any portion of this Agreement shall be held as unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the parties with any such modification to become a part hereof and treated as though originally set forth in this Agreement. The parties further agree that any such court is expressly authorized to modify any such unenforceable provision of this Agreement in lieu of severing such unenforceable provision from this Agreement in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, adding additional language to this Agreement or by making such other modifications as it deems warranted to carry out the intent and agreement of the parties as embodied herein to the maximum extent permitted by applicable law. The parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable against each of them. In any event, should one or more of the provisions of this Agreement be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof, and if such provision or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had not been set forth herein.

8.11 This Agreement shall be binding upon and inure to the benefit of each party’s respective heirs, successors, and assigns.

8.12 The language used in this Agreement will be deemed the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against either party.

8.13 The Guarantor shall be considered to have obligated themselves to Provider to the same and equal extent as Client for all obligations stated herein. Specifically, and without limitation, Guarantor hereby expressly and unconditionally guarantees all obligations of Client as set forth in this Agreement. Furthermore, Guarantor’s liability to Provider is joint and several with Client; accordingly, in any legal action to enforce the provisions of this Agreement, it shall not be necessary for Provider to bring such action against Client first in order to proceed against Guarantor individually.

8.14 This does not create exclusivity on behalf of the Provider as it relates to provision of the Services to Client. Accordingly, nothing contained in this Agreement shall be deemed or construed as a limitation on Provider’s right to work with and perform services similar or identical to the Services for other persons and entities, including competitors of Client.

8.15 Nothing in this Agreement shall be construed so as to reduce, restrict, limit, negate, or abridge Provider’s right to collaborate with, share information related to the Services and Deliverables with, and subcontract all or part of the Services to its preferred vendors and contractors, which right is expressly affirmed and acknowledged by Client.

8.16 Provider does not offer any legal, tax, or financial advice. Client acknowledges that Client is responsible for Client's own actions and hereby releases and holds harmless Provider and Provider Parties from liability for any of Client's actions, inaction, errors, omissions, or negligence.

8.17 Client acknowledges and agrees that this Agreement may be stored in an electronic record keeping system in the regular course of business and that a printed copy of the imaged document may be used and introduced in any arbitration, litigation, or other proceeding, and shall have the same force and effect as the original, which may be destroyed.

8.18 This Agreement may be executed in counterparts, each of which shall be deemed an original, and will become effective and binding upon the parties as of the Effective Date.

8.19 Client hereby expressly consents to and authorizes Provider, as well as any and all of its agents, employees, and contractors, to do all of the following on behalf of the Client: (1) create and open accounts for the provision of services to Client which are necessary or incidental to the Services rendered by Provider to Client; (2) cancel, modify, or suspend such accounts as is necessary based upon the Services and stated goals of the Client; and (3) agree and consent to, and otherwise bind Client to any and all agreements, terms and conditions, end user license agreements, or similar documents or agreements which are necessary to accept, install, or make use of any software, hardware, or other portion of the Services. THE CLIENT HAS FULLY READ AND UNDERSTANDS THE PROVISIONS OF THIS SECTION AND AGREES TO IRREVOCABLY WAIVE AND DISCHARGE ALL CLAIMS AGAINST THE PROVIDER PARTIES. CLIENT ACKNOWLEDGES AND AGREES THAT PROVIDER SHALL NOT BE HELD LIABLE FOR, AND HEREBY COVENANTS TO DEFEND AND INDEMNIFY ALL OF THE PROVIDER PARTIES FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, COSTS, FEES, FINES, EXPENSES, LOSSES, DAMAGES, OR LIABILITIES OF ANY KIND, WHETHER AT LAW OR IN EQUITY, WHICH ARISE FROM OR RELATE IN ANY WAY TO THIS SECTION OR PROVIDER’S ACTIONS (OR INACTIONS) TAKEN BASED ON, IN FURTHERANCE OF, OR IN RELIANCE UPON THE PROVISIONS OF THIS SECTION.

8.20 The Client acknowledges and agrees that, unless the Provider has specifically and expressly agreed to be responsible in writing for backing up the data of Client, then the Client is solely responsible therefor and Provider expressly disclaims and denies any responsibility for data backup, protection, restoration, or reconstruction. The Client understands and accepts the risk that their data may be irretrievably lost, corrupted, or damaged, and that none of the Provider Parties shall be responsible in any way for the same.