Consulting Terms and Conditions

These are the general terms and conditions applicable to the Statement of Work entered into by and between eMarket Design, LLC. and Customer (each, a “Party”, and collectively, the “Parties”). The Parties agree as follows:

1. Definitions. All capitalized terms used but not defined herein, shall have the meaning ascribed to such terms in the Statement of Work. The following terms are defined for the purposes of the Agreement as follows:

1.1. “Acceptance” shall have the meaning given to such term in Section 3.2;

1.2. “Agreement” means these eMarket Design Consulting Group Terms and Conditions, together with each SOW and its Exhibits;

1.3. “Change” means any change (including any addition or deletion) in the Services, the Deliverables, or the systems used to provide the Services, that would alter the manner in which such Services are provided, the composition of the Services or Deliverables or the cost thereof;

1.4. “Deliverables” means those ideas, concepts, inventions, data, formulae, developments, and software codes, extensions, or other programs provided by eMarket Design to Customer, and as may be described in each Statement of Work;

1.5. “Intellectual Property Rights” means all patents, inventions, trade secrets, know-how, formulae and processes, software programs, data, copyrights, trademarks, service marks, moral rights, trade names and all other similar proprietary intellectual property rights of any type, whether registered or unregistered, including any rights created therefrom, all proceeds thereof, and the right to sue for past, present and future infringements;

1.6. “Law” means any declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule, or other binding restriction of or by any federal, state, municipal, local, territorial or other governmental department, regulatory authority, judicial, or administrative body;

1.7. “Proprietary Material” means the Deliverables, related documentation, and all parts, copies and modifications thereof, and any other information, in whatever form, disclosed by a Party to the other Party under the Agreement, which is identified as being proprietary or confidential, or such other information which the other Party should reasonably conclude, based on the contents of information and manner of disclosure, constitutes confidential information of the disclosing Party, provided, however, that such information shall not be deemed Proprietary Material if it (a) is or becomes a part of the public domain through no act or omission of the other Party; or (b) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party from the disclosing party; or (c) is lawfully disclosed to the other Party by a third party without restriction on disclosure; or (d) is independently developed by a Party without reference to or use of the other party’s Proprietary Material;

1.8. “Services” means certain expert consulting group services provided by eMarket Design to Customer, as described in each signed Statement of Work;

1.9. “Statement of Work” or “SOW” means an individual project description agreed to from time to time by the Parties, with each such SOW being attached to and made a part of the Agreement;

1.10. “Specifications” means the specifications agreed upon by the Parties with respect to any Deliverable to be provided by eMarket Design to Customer under a Statement of Work.

2. THE SERVICES

2.1. Statement of Works. Each time Customer wishes to have eMarket Design perform Services and deliver Deliverables, the Parties will execute a Statement of Work. All such Statement of Works shall be in writing, and shall be effective only when signed by both Parties.

2.2. Changes. Either Party may propose Changes pursuant to Section 2.3; provided that no Change shall be implemented until the Parties have executed a Change Order (as defined below). Once agreed upon by the Parties, Changes shall be implemented in accordance with the terms agreed upon in writing by the Parties in a Change Order, including reasonable pricing adjustments.

2.3. Change Orders. To request a Change, a Party will deliver a written request (“Change Order Request”) to the other Party specifying (a) the proposed Change and the requested implementation schedule; (b) the objective or purpose of such Change; (c) the requirements and Specifications of any Deliverables to be delivered pursuant to such Change; and (d) the requested prioritization and schedule for such Change. If the Parties agree to proceed with the proposed Change, the Parties must execute a written approval of the proposed Change (“Change Order”). Executed Change Orders shall become part of the Agreement and the applicable Statement of Work, both of which shall be amended thereby.

2.4. Changes in Law. In the event of any change in Law that requires Changes, the Parties shall negotiate in good faith a reasonable and equitable adjustment to the extent required by the applicable Law, and shall, if the Parties so agree, confirm such Changes in a Change Order. In the event that no such agreement is reached within a reasonable period, but not to exceed fifteen (15) days, from a Party’s delivery to the other Party of a Charge Order Request in connection with or pursuant to the change in Law, eMarket Design shall be entitled to terminate the Agreement with respect to the Statement of Work affected by the change in Law.

2.5. Service Locations; Equipment. Unless otherwise agreed, eMarket Design shall provide the Services on its premises. When Services are provided on Customer’s premises, Customer shall provide reasonable workspace and other facilities consistent with the requirements of the Services. Customer shall be responsible for supplying the equipment and other material required to complete the Services in a timely manner (“Customer Material”).

3. DELIVERABLES

3.1. Delivery of Deliverables. Upon completion of a Deliverable, eMarket Design shall deliver such Deliverable, in the manner and using a method set out in the applicable Statement of Work, to Customer. A Customer may determine whether a software Deliverable substantially conforms to the applicable Specifications using the acceptance testing procedure set forth below unless other acceptance testing criteria are agreed in the applicable Statement of Work.

3.2. Acceptance Testing for Software Deliverables. Acceptance by Customer of a software Deliverable shall occur no later than three (3) business days from the date of delivery of the software Deliverable to Customer (“Acceptance Period”) upon the earlier of: (i) Customer notifying of its acceptance at any time during the Acceptance Period; (ii) Customer failing to notify of its acceptance or to provide eMarket Design with a list of Non-conformities (as defined below) prior to expiration of the Acceptance Period; (iii) successful Acceptance Testing (as described below); or (iv) use by Customer of the software Deliverable other than for Acceptance Testing (collectively, “Acceptance”). If Acceptance is not confirmed earlier, Customer shall be entitled, during the Acceptance period, to test the Deliverable to determine whether it substantially conforms to the applicable Specifications in all material respects (“Acceptance Testing”). If the Deliverable successfully passes an Acceptance Test, then Customer shall promptly notify eMarket Design of its Acceptance. If promptly after Acceptance Testing and within the applicable Acceptance Period, Customer notifies eMarket Design in writing of any material non-conformities in a Deliverable as evaluated against the applicable Specifications (each, a “Non-conformity”), Customer shall cooperate with eMarket Design in identifying in what respect the Deliverable has failed to conform to the Specifications, and grant eMarket Design a reasonable time to correct any such Non-conformity. Customer shall have the right to re-test the corrected Deliverable, upon the initial completion of such Deliverable. For removal of doubt, this Section 3.2 shall not apply to a non-software Deliverable.

3.3. Delays not attributable to eMarket Design. Failure to achieve Acceptance according to the Acceptance Testing procedure set out above, due to any reason not attributable to eMarket Design shall not delay Acceptance.

3.4. Minor Deficiencies. The Parties shall mutually agree on a list of any Minor Deficiencies, which shall not affect Acceptance and a fixed time within which such Deficiencies should be remedied. “Minor Deficiencies” refers to issues that do not substantially affect the commercial operation of any Deliverable.

4. PAYMENT OF FEES

4.1. Fees. Customer shall pay eMarket Design, for the Services and Deliverables provided by eMarket Design, the fees as specified in each applicable Statement of Work. The Services may be performed by eMarket Design on either a time and materials basis or on a fixed price basis, or a combination thereof, as set forth in the applicable Statement of Work.

4.2. Payment Terms. Customer shall pay eMarket Design within fourteen (14) days of the date of invoice and prior to delivery of the Deliverable, and overdue payments shall bear interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate allowed under applicable Law. All payments to eMarket Design under the Agreement are exclusive of all current and future taxes, including without limitation, sales, use, value-added, withholding or other taxes or levies on transactions made under the Agreement, excluding taxes based on eMarket Design’s income. eMarket Design shall deliver or otherwise make available the Deliverable to Licensee within two (2) business days from the receipt of payment of the applicable fees.

4.3. Expenses. In addition to the fees, Customer shall reimburse eMarket Design for out-of-pocket travel and other expenses actually incurred by eMarket Design in connection with its performance of the Services, provided prior approval to incur such expenses is obtained from Customer. eMarket Design will not be responsible for any delay caused by or due to the time required for Customer to provide such approval.

5. PROPIETARY RIGHTS

5.1. Proprietary Materials. Customer agrees that the Deliverables, related documentation, manuals and other Proprietary Material provided to Customer hereunder are proprietary information of eMarket Design (or its third party providers) and that eMarket Design (or its third party providers) shall retain sole and exclusive ownership in and to the Deliverables and all of its other Proprietary Material and to all copies thereof, including, without limitation, all Intellectual Property Rights therein. Except as otherwise set forth in the Agreement, Customer shall not acquire any Intellectual Property Rights, including any rights to create derivative works of any eMarket Design Proprietary Materials, under the Agreement, except the limited right to use such Proprietary Materials in accordance with the Agreement.

5.2.  Confidentiality of Proprietary Materials. The Parties acknowledge that each Party’s Proprietary Material constitutes a valuable asset of such Party. Each Party shall hold the Proprietary Material of the other Party strictly confidential and shall utilize it only in accordance with the terms of the Agreement. Except as expressly permitted by the Agreement, each Party shall limit the use of, and access to, the Proprietary Material to its employees or agents under written nondisclosure obligations at least as restrictive as those contained in the Agreement, whose use of or access to the Proprietary Material is necessary for purposes consistent with the Agreement. A disclosing Party shall be responsible for the compliance of such employees or consultants. Each Party shall, by all appropriate means, use best efforts to prevent unauthorized disclosure, publication, display or use of any Proprietary Material. Each Party shall affix, to each full or partial copy of the other Party’s Proprietary Material, all copyright and proprietary information notices as were affixed to the original. Upon written request by a disclosing Party at any time, the other Party shall: (a) turn over to the disclosing Party all Proprietary Material, all documents or media containing the Proprietary Material, and any and all copies or extracts thereof, or (b) destroy the Proprietary Material, and all copies or extracts thereof, and provide the disclosing Party with written certification of such destruction signed by an authorized representative of the other Party. The obligations set forth in this Section shall survive termination of this Agreement.

5.3. Open Source. Customer acknowledges that a Deliverable may include certain open source software, which is governed by the applicable license terms thereof. A list of such open source software, as amended from time to time, including the links applicable to such open source software is specified in the product release notes for each software version.

5.4. If a software Deliverable is provided to a unit or agency of the U.S. Government (“Government”), the Government agrees that such software Deliverable is “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the Government’s rights with respect to such software Deliverable are limited by the terms of this Agreement, pursuant to applicable FAR and/or DFARS and successor regulations.

6. LICENSE

6.1. Subject to Customer’s payment of the applicable fees and expenses, and to Customer’s compliance with other terms and conditions of the Agreement, eMarket Design grants Customer a non-exclusive, non-transferable, non-assignable, non-sublicensable, worldwide license to use, modify and create derivative works with respect to the Deliverables, solely for internal purposes, in accordance with a Deliverable’s technical or other related documentation, and solely to service the licensee identified in an SOW. eMarket Design also grants Customer the right to contribute any derivative works with respect to the Deliverable back to eMarket Design. Customer may contact eMarket Design for more information.

6.2. Subject to Section 6.1 above, Customer is authorized to make a reasonable number of copies of a software Deliverable as it requires for the purpose of exercising its rights under the Agreement for purposes of development, testing, and production.

6.3. Customer Material. Customer grants to eMarket Design a non-exclusive, royalty-free worldwide license to use, modify and create derivative works with respect to Customer Material for internal purposes for the purpose of performing the Services. Customer shall retain sole and exclusive ownership in and to Customer Material, and shall clearly mark the Customer Material as being proprietary.

7. LICENSE EXCLUSIONS

7.1.  Except as expressly authorized herein, Customer shall not:

a. distribute, sublicense, disclose, market, rent, lease, or offer remote computing services, networking, batch processing or transfer to any third party a software Deliverable or permit any person or entity to have access to a software Deliverable by means of a time sharing, remote computing services, networking, batch processing, service bureau or time sharing arrangement;

b. export Deliverables in violation of U.S. Department of Commerce export administration regulations;

c.  reverse-compile, disassemble, or otherwise reverse-engineer any software Deliverable in order to recreate its source code.

7.2. No license, right or interest in any eMarket Design trademark, trade name or service mark is granted hereunder.

7.3. No Obligation to Maintain. eMarket Design is not obligated to continue to maintain or support any particular software Deliverable indefinitely or even for any specific period.

8. DEFAULT AND TERMINATION

8.1. Term. The term of the Agreement shall commence as of the date of the SOW and shall continue until terminated hereunder (“Term”).

8.2. Default. An event of default shall be deemed to occur if: (i) Customer fails to perform any of its obligations under the Sections entitled “License Exclusions” or “Proprietary Rights”; (ii) either Party fails to perform any other material obligation under the Agreement or under the End User License Agreement between the Parties and such failure remains uncured for more than twenty one (21) days after receipt of written notice thereof; (iii) either Party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency Law, whether domestic or foreign, or is wound-up, dissolved or liquidated, voluntarily or otherwise; or (iv) the direct or indirect ownership or control of Customer, as of the Effective Date, changes in a manner that, in eMarket Design’s judgment, may adversely affect eMarket Design’s rights or business interests.

8.3. If an event of default occurs, the non-defaulting Party, in addition to any other rights available to it under the Law, may terminate the Agreement or any Statement of Work, or any part thereof and all licenses granted hereunder by written notice to the defaulting Party. Remedies shall be cumulative and there shall be no obligation to exercise a particular remedy.

8.4. Upon Termination. Within thirty (30) days after termination of a license or expiration of a license term specified in the Statement of Work, Customer shall certify in writing to eMarket Design that Customer has ceased use of the Deliverables and that all copies of the Deliverables in any form, including partial copies within modified versions, have been destroyed.

8.5. Survival. Sections which by their nature should survive termination of the Agreement, including but not limited to, Sections 1 (Definitions), 4 (Payment of Fees), 5 (Proprietary Rights), 7 (License Exclusions), 8.5 (Survival), 9 (Warranties), 10 (Indemnity and Limitation of Liability), 11 (General) of the Agreement shall so survive.

9. WARRANTIES

9.1. General. Each Party hereto represents and warrants that: (a) it has the full right and power to enter into and fully perform the Agreement in accordance with its terms; and (b) the execution, delivery and performance of the Agreement will not knowingly breach rights granted by such Party to any third party or breach the provisions of any agreement to which it is a party or breach any applicable Law.

9.2. Warranty. eMarket Design warrants to Customer that it shall provide the Services and the Deliverables to Customer in a workmanlike manner.

9.3. eMarket Design does not warrant that the Deliverables will meet Customer’s requirements, that the Deliverables will operate in the combinations, which Customer may select for use, that the Services and operation of the Deliverables will be uninterrupted, timely, secure or error-free, or that all error conditions will be corrected. EXCEPT AS PROVIDED IN THIS SECTION ALL SERVICES AND DELIVERABLES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE” BASIS.

9.4. DISCLAIMER. THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 9 ARE THE ONLY WARRANTIES MADE BY eMarket Design WITH RESPECT TO THE SERVICES AND DELIVERABLES PROVIDED BY eMarket Design. eMarket Design MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE AND NON-INFRINGEMENT. eMarket Design’S EXPRESS WARRANTIES SHALL NOT BE ENLARGED, DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY SHALL ARISE OUT OF, eMarket Design RENDERING TECHNICAL OR OTHER ADVICE OR SERVICES IN CONNECTION WITH THE DELIVERABLES.

10. INDEMNITY AND LIMITATION OF LIABILITY

10.1. Indemnification  Customer agrees to indemnify and hold eMarket Design and its parent company(ies), subsidiaries, affiliates, successors, officers, directors, shareholders, representatives, employees, agents, sponsors and licensees harmless from any and all third party claims, actions, causes of action, claims, costs, losses and liabilities, expenses, obligations, demands, judgments, deficiencies, penalties, suits,  damages, loss of profits, loss of use, business interruption, loss of data, and cost of replacement services  (including attorneys’ fees) (“Losses”), arising out of or in connection with any claim, which taking the claimant’s allegations to be true, would result from, or relate in any way to:  (i) any breach or alleged breach of any of the warranties, representations or agreements of Customer hereunder; (ii)  Customer’s use of the Deliverables and any other results of Customer’s Services or other recommendations provided by eMarket Design as contemplated herein; (iii) any Services or conduct by any subcontractor or third party engaged by Customer in connection with this Agreement; (iv) any actual or alleged damage or injury to any person or property that arises out of or is related in any way, directly or indirectly, to Customer’s Services or (v) Customer’s actual or alleged illegal, unauthorized or improper use of Deliverables.  Customer will pay all costs, damages and expenses, including, without limitation, reasonable attorneys’ fees, expenses and costs awarded against or otherwise incurred by eMarket Design in connection with or arising from any such Losses.  In the event that eMarket Design seeks indemnification under this Paragraph, eMarket Design will promptly notify Customer in writing of the losses for which eMarket Design seeks indemnification.  Customer will not settle any such Losses without eMarket Design’s prior written consent.

10.2. Security  Customer may decide to provide eMarket Design with files or information to review its site’s performance and to troubleshoot problems.  Customer shall ensure that it has backed up and removed all confidential business and customer data from files it provides to eMarket Design.  Although eMarket Design takes technical, physical and administrative measures to protect data in the platform, eMarket Design will not take any responsibility for safeguarding sensitive data Customer has provided to eMarket Design; it is Customer’s responsibility to remove this data from files Customer provides to eMarket Design.  eMarket Design is not responsible for any security breaches affecting servers or accounts under Customer’s sole control.  If Customer’s server is responsible for or involved in an attack on or unauthorized access into another server or system, then Customer will notify eMarket Design immediately, and eMarket Design will have the right to respond accordingly, including, without limitation, the right to identify, isolate, and block the source of the attack. In addition, Customer agrees to indemnify and hold eMarket Design harmless for any liability associated with unauthorized access to files Customer provides to eMarket Design.  

10.3.  Monitoring User Activity  eMarket Design exercises no control over and expressly disclaims any obligation to monitor Customer’s customers and other users with respect to breaches of this Agreement or any content of the information made available for distribution via the Services, including, without limitation, any information passing through eMarket Design’s host computers, network hubs and points of presence, or the Internet.  In no event will eMarket Design, its parent company, and their affiliates and subsidiaries have any liability to Customer or any third party for unauthorized access to, or alteration, theft, or destruction of information distributed or made available for distribution via the Services through accident, or fraudulent means or devices.

10.4. Interruption of Service  eMarket Design will not be liable for any temporary delay, outages, or interruptions of the Services. Further, eMarket Design is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications, or third-party supplier failure). eMarket Design cannot guarantee that (a) access to the Services will be uninterrupted or error-free, (b) defects will be corrected, or (c) the Services will be secure.

10.5. Third Party Products  For your convenience, eMarket Design may provide you access to third party products (“Third Party Products”) through certain third party vendors (“Third Party Vendor(s)”).  Neither eMarket Design nor any Third Party Vendor makes any representations or warranties of any kind, express or implied, regarding any Third Party Products.  Customer agrees not to do the following: (a) copy any license keys or otherwise decrypt or circumvent any license key, (b) run Third Party Products on a second system, (c) remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that appear on or during use of any Third Party Product, or (d) reverse engineer, decompile, or disassemble any Third Party Product, except to the extent that such activity is expressly permitted by the Third Party Vendor or applicable Law.  Customer agrees to observe the terms of any license or applicable end user subscriber agreement for Third Party Products and eMarket Design will not have any liability for Customer’s use of any Third Party Products or any violation of any license agreements or end user subscriber agreements that govern such Third Party Products.  Customer will be solely responsible for any additional software of products that Customer installs or uses in conjunction with the Services.

10.6.  LIABILITY EXCLUSIONS. NOTHING IN THIS AGREEMENT SHALL EXCLUDE EITHER PARTY’S LIABILITY FOR (i) BREACH OF THE LICENSES OR RELATED RESTRICTIONS CONTAINED HEREIN; (ii) BREACH OF CUSTOMER’S OBLIGATIONS UNDER SECTION 5; OR (iii) ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW. SAVE FOR THE FOREGOING, NEITHER PARTY ACCEPTS AND EACH PARTY HEREBY EXCLUDES ANY LIABILITY FOR LOSS OF OR DAMAGE TO TANGIBLE PROPERTY OTHER THAN THAT CAUSED BY ITS NEGLIGENCE AND HEREBY EXCLUDES ANY OTHER LIABILITY FOR NEGLIGENCE ARISING PURSUANT TO THE TERMS OF THE AGREEMENT. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR: LOSS OF REVENUE UNRELATED TO AMOUNTS PAYABLE FOR SERVICES, DELIVERABLES AND ASSOCIATED LICENSES; LOSS OF ACTUAL OR ANTICIPATED PROFITS; LOSS OF CONTRACTS; LOSS OF THE USE OF MONEY; INTERRUPTION OF BUSINESS, LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO OR CORRUPTION OF DATA; OR CONSEQUENTIAL OR INDIRECT LOSS OR SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING, FOR THE AVOIDANCE OF DOUBT, WHERE SUCH LOSS OR DAMAGE IS ALSO OF A CATEGORY OF LOSS OR DAMAGE ALREADY LISTED), WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF CUSTOMER, eMarket Design OR ANY THIRD PARTY ARISING OUT OF ANY BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY CONDITIONS OR OTHER TERM, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, OTHER LIABILITY IN TORT, FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.7. LIABILITY CAP. NOTWITHSTANDING THE FORM (E.G., CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, IN NO EVENT WILL eMarket Design, ITS OFFICERS, EMPLOYEES OR SUPPLIERS BE LIABLE FOR DAMAGES, RESTITUTION OR LOSSES, THAT EXCEED, IN THE AGGREGATE, FOR EACH RESPECTIVE BREACH OR SERIES OF RELATED BREACHES, THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE SERVICES AND DELIVERABLES IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH DAMAGES OR LOSSES OCCURRED.

11. GENERAL

11.1. Independent Contractors. eMarket Design and Customer are independent contractors under the Agreement. Nothing herein will be construed to create a partnership, joint venture, or agency relationship between the Parties and neither Party shall have any authority to act for or to bind the other Party in any respect.

11.2. Assignment and No Third Party Beneficiary. Customer may not assign the Agreement without the prior written consent of eMarket Design, which consent shall not be unreasonably withheld. Except as expressly set forth herein, nothing in the Agreement shall confer any rights upon any person or entity other than the Parties hereto and their respective successors and permitted assigns.

11.3. Governing Law. The Agreement is made in and shall be governed by the Laws of the State of Florida, excluding choice of law principles. All proceedings shall be conducted in English. Venue for all proceedings shall be Miami Dade County, Florida, provided that eMarket Design may seek injunctive relief in any court of competent jurisdiction. The United Nations Convention for the International Sale of Goods shall not apply.

11.4.  Headings. The Section headings herein are provided for convenience only and have no substantive effect on the construction of the Agreement.

11.5. Force Majeure. Except for Customer’s obligation to pay eMarket Design, neither Party shall be liable for any failure to perform due to causes beyond its reasonable control.

11.6. No Solicitation. Neither Party shall, during the Term of the Agreement nor for a period of 12 (twelve) months after its termination, solicit or induce or attempt to solicit or induce to terminate, reduce or modify the scope of engagement with the other Party of any of such other Party’s employee, consultant, agent, customers, suppliers or other representative, without such Party’s prior written consent.

11.7. Severability and Waiver. If any provision of the Agreement is held to be unenforceable, such unenforceability or invalidity shall not render the Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable Law. The failure by a Party to exercise any right hereunder shall not operate as a waiver of such Party’s right to exercise such right or any other right in the future.

11.8. Modifications. The Agreement may be amended only by a written document executed by a duly authorized representative of each of the Parties.

11.9. Notices. All notices shall be in writing and sent by first class or overnight mail (or courier), or transmitted by fax (if confirmed by such mailing), to the addresses indicated on the first page of the Agreement, or such other address as either Party may indicate by at least ten (10) days’ prior written notice to the other Party. Notices to eMarket Design shall be sent to the Contracts Administration Department.

11.10. Entire Agreement. Except for the End User License Agreement and related support services between the Parties, the Agreement together with all of its Exhibits, is the complete and exclusive Agreement between the Parties, which supersedes all proposals or prior agreements, oral or written, and all other communications between the Parties relating to the subject matter hereof. No purchase order, other ordering document or any hand written or typewritten text, which purports to modify or supplement the printed text hereof or any Exhibit or Statement of Work shall add to or vary the terms thereof. Except as contained in a writing signed by the Parties, all such proposed variations or additions are objected to and shall have no force or effect.

11.11. Counterparts. The Agreement and its Exhibits may be executed in one or more counterparts, all of which shall constitute a single Agreement. The Agreement and its Exhibits may be executed by fax.

11.12. Construction. The Agreement shall be deemed to have been drafted by the Parties and, in the event of a dispute, neither Party hereto shall be entitled to claim that any provision should be construed against the other Party by reason of the fact that it was drafted or revised by such other Party.

Effective as of June 25, 2015. Copyright © 2015 eMarket Design, LLC. All rights reserved.