Z3 Digital Terms of Service
These terms of service are effective as of June.1.2020. THESE TERMS OF SERVICE (“TERMS”) GOVERN YOUR USE OF OUR SERVICES.
This agreement governs the relationship between any parties (Client) who engage Z3 Digital for any type of services or consulting and Z3 Digital (“Z3 Digital” or “Service Provider”). Client and Service Provider are sometimes collectively referred to herein as the “Parties” and individually as a “Party”.
Client wishes to retain the services of the Service Provider, and the Service Provider agrees to provide Client the services, in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties agree as follows
ARTICLE 1. SERVICES
Services. Each service (collectively, the “Services”) described below shall only be provided to Client if Client pay for that specific service and have agreed upon payment for that service to be rendered:
Complete Social Media Management. Social media follower building and social media monitoring and moderating for social media platforms. These platforms may include: Facebook, Twitter, Instagram, Pinterest and/or LinkedIn. This service shall also include regular, professional and client-brand-aligned content sourcing and posting on each of the above social media platforms a set amount of times per week on average.
Social Media Advertising. This service shall include: management of all tasks necessary for social media advertising for a management fee of 12% of all social media advertising expenditures which Service Provider manages. Advertising budgets shall be determined on an as-needed basis by Client.
Photoshoots. Unless agreed upon as a regular service this service shall include: photoshoots for Client managed and contracted through Service Provider. This service shall be rendered for a mutually agreed upon rate as requested. This rate shall be determined by both parties prior to each shoot beginning.
Regular Video Shoots. Service Provider shall complete a set number of video shoots each month for Client and shall handle all necessary editing and production of said videos shots. Client shall receive a set number of videos as a result of this video shoot each month. Each of these resulting videos shall be between 1-5 minutes long.
Video Shoots. Unless agreed upon as a regular service this service shall include: Live action video shoots and production services shall be rendered to the client on an as-needed basis. The payment for each video will be decided and agreed upon by both Client and Service Provider before each video begins shooting or production.
Animated Video. Unless agreed upon as a regular service this service shall include: Animated video production services shall be rendered to the client on an as-needed basis. The payment for each video will be decided and agreed upon by both Client and Service Provider before each video begins production.
Z3 Digital Hyper-Targeting. These services shall be provided to Client for a mutually agreed upon rate. The rate for each campaign after the first initial test campaign shall be determined by both parties prior to each campaign beginning.
Ongoing SEO services. This will include periodic updates to the website where needed, indexing of the website, ongoing monitoring of indexes, as well as the setting up and monitoring of search engine advertising campaigns and writing of monthly blog posts for Client. This service shall be rendered for the mutually agreed upon rate on a monthly basis. Search engine advertising budgets will be determined on an as-needed basis by The Client and shall be subject to a 7% advertising placement fee.
Website design, programing and bug fixes for the first 2 months of operation. This service shall be rendered for a set price. 50% of payment for this service shall be given to Service Provider at the beginning of the project and 25% once the first website draft is completed and the final 25% once the website is launched.
Service Provider shall complete at most 3 website version designs based on the 2 rounds of edits given to Service Provider by Client. If Client needs or wishes continued alternative site versions be created both parties must agree on a per alternative version rate to be paid to Service Provider.
Website hosting, security and maintenance. This service shall also include regular site checkups by Service Provider, on-call assistance for Client with website related issues, hosting management, and with ongoing bug fixes and slight adjustments to the website where needed. Service Provider does not assume any responsibility and cannot be held liable for any damages or losses that may result from website compromises or website failures.
Social media live event coverage. This service will include the following services where applicable: Facebook live video set-up and monitoring, live tweeting/posting on appropriate media, and limited photography for live posting. This service shall be rendered only when requested by Client for $200/hour. Admission to the event of Service Providers’ staff will be the responsibility of Client.
Performance reports. Quarterly performance reports shall be created for Client at no additional charge. If Client requests additional reports on a monthly or bi-monthly basis Client may be charged an addition $200 per additional report requested.
Appointment and Authorization of Service Provider.
Client retains and appoints Service Provider to represent Client in carrying out the marketing program contemplated by this Agreement, subject to the terms and conditions of this Agreement. Service Provider is authorized to enter into contracts with other persons to perform duties that do not involve the personal or professional skill of Z3 Digital personnel to effectuate the purposes of this Agreement.
Ongoing contact. Contact between Client and Service Provider shall be limited to 3 times per month after the first month of services beginning. Contact is defined as emails, texts, calls and in-person meetings requested or initiated by Client. If Client requires more calls, texts, in-person meetings or emails per month than these contacts shall be considered consulting and not covered under the services outlined above. Service Provider retains the right to bill Client for these additional contacts on an hourly basis, billed in half-hour increments, at a rate of $150/hour.
1.2 Modification of Services; Change Orders. The Parties acknowledge and agree that during the term of the Agreement the Services may be modified and/or expanded from time to time by the Parties. No changes to the Services will be authorized by Service Provider, and Service Provider shall have no obligation to perform any additional or modified Services, until a Change Order has been agreed upon and signed by an authorized representative of Service Provider.
1.3 Subcontractors. Client acknowledges and agrees that Service Provider may, at its sole discretion, use subcontractors and consultants to perform some of the Services to be provided under this Agreement. In the event Service Provider utilizes subcontractors or consultants to perform any of the Services, Service Provider shall remain responsible to Client for performance under this Agreement.
1.4 No Exclusivity. Service Provider may represent, perform services for, and contract with other additional clients, persons, or companies as Service Provider, in its sole discretion, sees fit.
1.5 Compliance with Laws; Permits and Licenses. Client agrees, at its own expense, to operate in full compliance with all governmental laws, regulations and requirements applicable to the duties conducted hereunder. It shall be the responsibility of Client to pay for any necessary licenses, permits, insurance and approvals as may be necessary for the performance of the Services under this Agreement, unless otherwise specified in writing and agreed to by the Service Provider
ARTICLE 2. FEES AND EXPENSES
2.1 Fees. As full consideration for the provision of the Services, Client shall pay Service Provider fees in the amounts set forth for each of the Services in Section 1.1 herein (the “Fees”).
2.2 Expenses. Client shall pay Service Provider for the reasonable expenses including, but not limited to, the items listed below that are incurred by Service Provider and its personnel in connection with its performance of the Services (the “Expenses”):
2.2.1 All costs incurred and expenditures made on behalf of Client for approved marketing or advertising.
2.2.2 If Client approves any planned marketing or advertising and then cancels all or any part of it: all costs incurred to the date of cancellation and any unavoidable costs incurred afterward, including any non-cancellable commitments for time or space.
2.2.3 In the event that media or other charges increase or decrease after Service Provider has submitted an estimate, Client shall pay for any increase or be given a credit for any decrease, as the case may be. If the amount of space or time or other marketing or advertising services actually used is less than that previously contracted for, Client shall pay for any increased rate charged by the media because of loss of volume discount or because of higher scheduled rates. If additional space or time or services are so used, resulting in a lower rate, Client shall make payments at the lower rate.
2.3 Billing and Payment. Service Provider shall prepare and submit invoices to Client via email for all recurring Services performed and Expenses incurred on a monthly basis. Service Provider will bill Client separately for one-time/intermittent Services performed. Client will pay invoices in U.S. dollars within 15 days of the date of Service Provider’s invoice. Payments due hereunder must be made by credit card, ACH debit, or such other method as may be agreed upon by the Service Provider. Client shall have no right of offset or withholding under this Agreement. Any amounts not paid by Client when due to Service Provider shall be subject to a late payment fee of 10% of the total unpaid and overdue account balance every 14 calendar days, compounded monthly.
If any amounts due to Service Provider from Client becomes past due for any reason, Service Provider may at its option and without further notice withhold further Services, and Service Provider may retain control of Client’s online profiles and domains until all invoices have been paid in full, and such withholding of Services and/or exercise of control shall not be considered a breach or default of any of Service Provider’s obligations under this Agreement
ARTICLE 3. WARRANTY
The Services to be performed hereunder are professional services and advice. Service Provider does not warrant in any form the results or achievements of the Services provided or the resulting work product and deliverables. Service Provider warrants that that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with the generally accepted industry standards and practices. Service Provider shall comply with all statutes, ordinances, regulations and laws of all international, federal, state, county, municipal or local governments applicable to performing the Services hereunder.
LIMITATION OF WARRANTY. THE WARRANTY SET FORTH IN THIS ARTICLE 3 IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, WORK PRODUCT OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. SERVICE PROVIDER DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PURPOSE, OR AGAINST INFRINGEMENT. SERVICE PROVIDER SHALL NOT BE LIABLE FOR ANY SERVICES OR WORK PRODUCT OR DELIVERABLES PROVIDED BY THIRD PARTY VENDORS IDENTIFIED OR REFERRED TO CLIENT BY SERVICE PROVIDER DURING THE TERM OF THIS AGREEMENT, CLIENT’S EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS REPERFORMANCE OF THE SERVICES, OR IF REPERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF AMOUNTS PAID UNDER THIS AGREEMENT FOR SUCH NON-CONFORMING SERVICES.
ARTICLE 4. OWNERSHIP OF WORK PRODUCT
4.1 Client Logos. Parties agree that Client retains all ownership and copyright laws to Client’s logos and marks and this Agreement in no way transmits any ownership of such logos and marks to Service Provider. Client grants Service Provider a limited, royalty free, non-exclusive license to use Client’s logos and marks for the express purposes designated in this Agreement. The limited license terminates upon the conclusion of this Agreement.
4.2 Service Provider Creations. All plans, preliminary outlines, sketches, copy, and all other property and materials which are produced by reason of this Agreement shall be the property of Client and the Service Provider as soon as payment for them has been made to the Service Provider. On termination of this Agreement, all such property and materials shall be the property of Service Provider unless Client pays for them in accordance with the terms of this Agreement, even if Client or another person has physical possession of them.
4.3 Service Provider Use of Materials and information. The Z3 Digital team prides itself on delivering services that are worth talking about and therefore retains the right to use all creations, plans, preliminary outlines, sketches, copy and all other property and materials which are created for the client and by signing this agreement the client gives Z3 Digital permission to mention them as proud partners. By signing this agreement, Client agrees to allow Z3 Digital the right to recognize them publicly as partners and agrees to participate in any case study requested during or after services are performed, a description of which may be included on Z3 Digital’s website and/or in marketing materials.
Client agrees to provide Z3 Digital with all possible information necessary to facilitate said case study(ies). Client also agrees to talk with new potential clients of Z3 Digital’s about the services that Z3 Digital provides if called upon, and by signing this agreement the client expressly gives Z3 Digital permission to provide their contact information to new potential clients from time to time.
ARTICLE 5. CONFIDENTIAL INFORMATION
5.1. Confidential Information. The Parties acknowledge that by reason of their relationship to the other hereunder, each may disclose or provide access (the “Disclosing Party”) to the other Party (the “Receiving Party”) certain Confidential Information. “Confidential Information” shall mean (a) information concerning the Parties’ products, business and operations including, but not limited to, information relating to business plans, financial records, customers, suppliers, vendors, products, product samples, costs, sources, strategies, inventions, trade secrets, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, procedures, distribution methods, inventories, marketing strategies and interests, data, designs, drawings, work sheets, computer programs and systems and know-how or other intellectual property, of a Party and its affiliates that may be at any time furnished, communicated or delivered by the Disclosing Party to the Receiving Party, whether in oral, tangible, electronic or other form; (b) the terms of any agreement, including this Agreement, and the discussions, negotiations and proposals related to any agreement; (c) information acquired during any tours of or while present at a Party’s facilities; and (d) all other non-public information provided by the Disclosing Party hereunder. In no event shall Service Provider’s use or disclosure of information regarding or relating to the development, improvement or use of any of Service Provider’s products be subject to any limitation or restriction. All Confidential Information shall remain the property of the Disclosing Party.
5.2. Use of Confidential Information; Standard of Care. The Receiving Party shall maintain the Confidential Information in strict confidence and disclose the Confidential Information only to its employees, subcontractors, consultants and representatives who have a need to know such Confidential Information to fulfill the business affairs and transactions between the Parties contemplated by this Agreement. The Receiving Party shall always remain responsible for breaches of this Agreement arising from the acts of its employees, subcontractors, consultants and representatives. Receiving Party shall use the same degree of care as it uses with respect to its own similar information, but no less than a reasonable degree of care, to protect the Confidential Information from any unauthorized use, disclosure, dissemination, or publication. Receiving Party shall only use the Confidential Information in furtherance of its performance of its obligations under this Agreement, and agrees not to use the Disclosing Party’s Confidential Information for any other purpose or for the benefit of any third party, without the prior written approval of the Disclosing Party. The Receiving Party shall not decompile, disassemble, or reverse engineer all or any part of the Confidential Information.
5.3. Exceptions. Confidential Information does not include information that: (a) was lawfully in Receiving Party’s possession before receipt from Disclosing Party; (b) at or after the time of disclosure, becomes generally available to the public other than through any act or omission of the Receiving Party; (c) is developed by Receiving Party independently of any Confidential Information it receives from Disclosing Party; (d) Receiving Party receives from a third party free to make such disclosure without, to the best of Receiving Party’s knowledge, breach of any legal or contractual obligation, or (e) is disclosed by Receiving Party with Disclosing Party’s prior written approval.
5.4. Required Disclosures. If the Receiving Party is confronted with legal action to disclose Confidential Information received under this Agreement, the Receiving Party shall, unless prohibited by applicable law, provide prompt written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or other relief it deems appropriate, and Receiving Party shall reasonably assist disclosing Party in such efforts. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only that portion of the Confidential Information which it is advised by its legal counsel must be disclosed.
5.5. Unauthorized Use or Disclosure of Confidential Information; Equitable Relief. In the event the Receiving Party discovers that any Confidential Information has been used, disseminated or accessed in violation of this Agreement, it will immediately notify the Disclosing Party, take all commercially reasonable actions available to minimize the impact of the use, dissemination or publication, and take all necessary steps to prevent any further breach of this Agreement. The Parties agree and acknowledge that any breach or threatened breach regarding the treatment of the Confidential Information may result in irreparable harm to the Disclosing Party for which there may be no adequate remedy at law. In such event the Disclosing Party shall be entitled to seek an injunction, without the necessity of posting a bond, to prevent any further breach of this Agreement, in addition to all other remedies available in law or at equity.
5.6. Return of Confidential Information; Survival. Receiving Party shall promptly return or, at Disclosing Party’s option, certify destruction of all copies of Confidential Information at any time upon request or within 15 days following the expiration or earlier termination of this Agreement. Notwithstanding any expiration or termination of this Agreement, Receiving Party’s obligations to protect the Confidential Information pursuant to this Section will survive for two (2) years after the expiration or earlier termination of this Agreement.
ARTICLE 6. INDEMNIFICATION
Each Party (the “Indemnifying Party”) agrees to indemnify, defend and hold the other Party and its affiliates and their respective officers, directors, employees and agents harmless from and against all third-party claims, losses, liabilities, damages, expenses and costs, including attorney’s fees and court costs, arising out of the Indemnifying Party’s (a) negligence or willful misconduct or (b) its material breach of any of the terms of this Agreement. The Indemnifying Party’s liability under this Section shall be reduced proportionally to the extent that any act or omission of the other Party, or its employees or agents, contributed to such liability. The Party seeking indemnification shall provide the Indemnifying Party with prompt written notice of any claim and give complete control of the defense and settlement of the Indemnifying Party, and shall cooperate with the Indemnifying Party, its insurance company and its legal counsel in its defense of such claim(s). This indemnity shall not cover any claim in which there is a failure to give the Indemnifying Party prompt notice to the extent such lack of notice prejudices the defense of the claim.
THIS ARTICLE 6 STATES THE ENTIRE OBLIGATION AND THE EXCLUSIVE REMEDIES WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.
ARTICLE 7. LIMITATION OF LIABILITY; ACTIONS
7.1 EXCEPT FOR THE PARTIES CONFIDENTIALITY OBLIGATIONS UNDER ARTICLE 5 OF THIS AGREEMENT AND INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 6 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BY LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. SUBJECT TO THE CLIENT’S OBLIGATION TO PAY THE FEES TO THE SERVICE PROVIDER, EACH PARTY’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE SERVICES OR THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY THE CLIENT TO THE SERVICE PROVIDER UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THIS SECTION SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.
7.2 NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT
ARTICLE 8. COOPERATION OF CLIENT
Client agrees to comply with all reasonable requests of Service Provider and shall provide Service Provider’s personnel with access to all documents and facilities as may be reasonably necessary for the performance of the Services under this Agreement
ARTICLE 9. NON-SOLICITATION
Client agrees that during the term of this Agreement and for three (3) years thereafter, it will not, directly or indirectly, solicit or induce any Service Provider employee that has interacted with Client or has been involved, directly or indirectly, in the performance, review and/or acceptance of the Services, to consider or accept employment with Client.
ARTICLE 10. TERM
This Agreement shall commence on the Effective Date and thereafter shall remain in effect until terminated by either Party as set forth in Section 11 of the Agreement
ARTICLE 11. TERMINATION
11. Termination for Breach. Either Party may terminate this Agreement at any time in the event of a breach by the other Party of a material covenant, commitment or obligation under this Agreement that remains uncured: (a) in the event of a monetary breach, 15 calendar days following written notice thereof; and (b) in the event of a non-monetary breach after 30 days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party.
11.1 Termination for Bankruptcy or Insolvency. Either Party may terminate this Agreement immediately at its option upon written notice if the other Party: (a) becomes or is declared insolvent or bankrupt; (b) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within 90 calendar days after its filing; (c) makes an assignment for the benefit of creditors. This Agreement shall terminate immediately and automatically upon any determination by a court of competent jurisdiction that either Party is excused or prohibited from performing in full all obligations hereunder, including, without limitation, rejection of this Agreement pursuant to 11 U.S.C. §365.
11.2 Termination for Convenience. Service Provider may terminate this Agreement at any time with or without cause by giving 30 days prior written notice.
11.3 Obligations upon Termination. Termination of this Agreement for any reason shall not discharge either Party’s liability for obligations incurred hereunder and amounts unpaid at the time of such termination. Client shall pay Service Provider for all Services rendered prior to the effective date of termination. Upon termination, each Party shall return the other Party’s Confidential Information that is in its possession at the time of termination.
ARTICLE 12. RELATIONSHIP OF THE PARTIES
The relationship of the Parties hereto is that of independent contractors. Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party’s employees or agents. Each of the Parties is an independent contractor and neither Party has the authority to bind or contract any obligation in the name of or on account of the other Party or to incur any liability or make any statements, representations, warranties or commitments on behalf of the other Party, or otherwise act on behalf of the other. Each Party shall be solely responsible for payment of the salaries of its employees and personnel (including withholding of income taxes and social security), workers compensation, and all other employment benefits.
ARTICLE 13. FORCE MAJEURE
Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, or other similar or different occurrences beyond the reasonable control of the Party so defaulting or delaying in the performance of this Agreement, for so long as such force majeure event is in effect. Each Party shall use reasonable efforts to notify the other Party of the occurrence of such an event within five (5) business days of its occurrence.
ARTICLE 14. GOVERNING LAW AND VENUE
This Agreement will be governed by and interpreted in accordance with the laws of the State of Colorado, without giving effect to the principles of conflicts of law of such state. The Parties hereby agree that any action arising out of this Agreement will be brought solely in any state or federal court located in Colorado. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court.
ARTICLE 15. DISPUTE RESOLUTION
Any dispute arising out of or relating to this Agreement, including the alleged breach, termination, validity, interpretation and performance thereof (“Dispute”) shall be resolved with the following procedures and shall not be shared publicly or privately either individually or via any social media or public review service with any third party prior to or after the commencement of mediation regardless of the result of said mediation. Any violation of Article 15 of this agreement may result in the Client being held liable for any all damages caused to the Provider up to but not exceeding $15,000 per violation. All Dispute Resolution shall follow the below steps:
15.1 Negotiation Upon written notice of any Dispute, the parties shall attempt to resolve it promptly by negotiation between executives who have authority to settle the Dispute and this process should be completed within 30 days (the “Negotiation”).
15.2 Mediation If the dispute has not been resolved by negotiation in accordance with paragraph A, then the parties shall proceed to mediation unless the parties at the time of the dispute agree to a different timeframe. A “Notice of Mediation” shall be served, signifying that the Negotiation was not successful and to commence the mediation process. All parties agree, by agreement to these terms to use Jan Rogers (http://www.janrodgers.com/) as their mediator. If this mediator cannot be used within 45 days of the first attempt to schedule with her then the parties must agree upon a different mediator. The mediation session shall be held within 45 days of the retention of the mediator, and last until a mutual agreement can be met. All reasonable efforts will be made to complete the mediation within 30 days of the first mediation session. During the course of the mediation, no party can assert the failure to fully comply with Section 15.1, as a reason not to proceed or to delay the mediation. The service of the Notice of Mediation shall stay the running of any applicable statute of limitations regarding the Dispute until 30 days after the parties agree that the mediation is concluded. Each side shall bear an equal share of the mediation costs unless the parties agree otherwise. All communications, both written and oral, during the dispute resolution process are confidential and shall be treated as settlement negotiations for purposes of applicable rules of evidence; however, documents generated in the ordinary course of business prior to the Dispute, that would otherwise be discoverable, do not become confidential simply because they are used in the Negotiation and/or Mediation process. The process shall be confidential based on terms acceptable to the mediator and/or mediation service provider.
ARTICLE 16. ATTORNEY’S FEES
If either Party incurs any legal fees associated with the enforcement of this Agreement or any rights under this Agreement, the prevailing Party shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation, or other litigation expenses from the other Party.
ARTICLE 17. COLLECTION EXPENSES
If Service Provider incurs any costs, expenses, or fees, including reasonable attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due it under this Agreement, Client agrees to reimburse Service Provider for all such costs, expenses and fees.
ARTICLE 18. ASSIGNMENT
The Service Provider may subcontract its obligations and rights to a third-party.
ARTICLE 19. SEVERABILITY
If any provision or portion of this Agreement shall be rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
ARTICLE 20. HEADINGS; CONSTRUCTION
The headings and captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain. This Agreement is the result of negotiations between the Parties and their counsel. Accordingly, this Agreement shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party.
ARTICLE 21. SURVIVAL
Each term and provision of this Agreement that should by its sense and context survive any termination or expiration of this Agreement, shall so survive regardless of the cause and even if resulting from the material breach of either Party to this Agreement.
ARTICLE 22. RIGHTS CUMULATIVE
The rights and remedies of the Parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
ARTICLE 23. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others. An executed signature page delivered via facsimile transmission or electronic signature shall be deemed as effective as an original executed signature page.
ARTICLE 24. NOTICES
All notices or other communications required under this Agreement shall be in writing and shall be deemed effective when received and made in writing by either (a) hand delivery, (b) registered mail, (c) certified mail, return receipt requested, or (d) overnight mail, addressed to the Party to be notified at the following address or to such other address as such Party shall specify by like notice hereunder:
ARTICLE 25. WAIVER
No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.
ARTICLE 26. ENTIRE AGREEMENT; MODIFICATION
This Agreement, and any exhibits attached hereto, is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the Parties, whether written, oral, electronic or otherwise. Each Party acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any Party, or anyone acting on behalf of any Party, which are not contained in this Agreement, and that no other agreement, statement, or promise not contained in this Agreement will be valid or binding. No change, modification, amendment, or addition of or to this Agreement or any part thereof shall be valid unless in writing and signed by authorized representatives of the Parties.