This PROFESSIONAL SERVICES AGREEMENT (this “Agreement”) contains the terms and conditions that govern the provision of the Program described in the applicable Program Agreement, including any exhibits, to which this Agreement is incorporated, and any extensions thereof (the “Program Agreement”) between RLO (“RLO”) and the client identified in the Program Agreement (“Client”). RLO and Client may individually be referred to as a “Party” and collectively as the “Parties.” In consideration of the mutual covenants and agreements set forth below, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Client and RLO agree as follows:
1. SERVICES; INDEPENDENT CONTRACTOR
a. Program. RLO will provide the Program, as further described in the Program Agreement.
b. Independent Contractor. RLO’s engagement and provision of the Program will be as an independent contractor to Client, and neither RLO nor any of RLO’s employees, affiliates or agents will be an employee, joint venturer or partner of Client for any reason. As an independent contractor to Client, RLO will be solely responsible for all federal, local, provincial and state employment (including self-employment), income, social security and other similar levies and taxes payable by RLO on or with respect to RLO’s receipt of amounts pursuant to this Agreement.
2. PROGRAM FEES AND PAYMENT
a. Program Fees. As compensation for the Program, Client will pay RLO the fees and rates set forth in the Program Agreement (collectively, the “Program Fees”). All amounts set forth in this Agreement and in each Program Agreement include all applicable taxes and other charges and are stated in United States dollars.
b. Invoicing and Payment. Unless another method is expressly provided for payment of Program Fees in the Program Agreement, RLO will invoice Client on a monthly basis and any reimbursable costs and expenses incurred and Client will pay each such invoice without setoff or deduction within thirty (30) days of RLO’s delivery thereof. Any amounts due hereunder that are not paid within thirty (30) days of the date of delivery of the applicable invoice will accrue interest at a rate of one and a half percent (1.5%) per month, or the maximum rate permitted by law, whichever is lower, from the date the amount was due hereunder until paid in full. Any provision in this Agreement to the contrary notwithstanding, if Client fails to pay any amounts invoiced pursuant to this Agreement, then RLO will have the right, in addition to RLO’s other remedies and rights, to suspend performance of the Program until all outstanding amounts have been paid in full.
3. COVENANTS
a. Non-Exclusivity. Client acknowledges and agrees that RLO’s provision of the Program will not be exclusive to Client.
b. Duties of Client. To support RLO’s efforts to provide the Program, Client, at its own cost and expense, will provide such assistance, information, materials or support as is reasonably requested by RLO. The Client agrees to cooperate, in good faith, with RLOin connection with the Program, including but not limited to implementing the sleep plan outlined in the Program and any other recommendations provided by RLO.
c. Intellectual Property. Except for Client’s limited right to participate in the Program, Client acknowledges and agrees that Client shall not acquire any interest in RLO’s service marks, trade dress, trademarks, trade names, intellectual property, or any other proprietary rights, including, but not limited to, schedules, visual aids, sleep plans or other materials (“IP Rights”), by virtue of this Agreement, all such IP Rights being reserved by RLO. Neither Party will make any use of the other Party’s IP Rights without prior written consent from the applicable Party.
d. Confidential Information. During the Term, each Party may become privy to confidential and proprietary information that the disclosing Party treats as confidential and the receiving Party should be reasonably expected to realize that such information is confidential. (collectively, “Confidential Information”). During the Term and for a period of two (2) years after the expiration or termination of this Agreement, no receiving Party will use, disclose, divulge, furnish, reveal or make available any of the Confidential Information of the disclosing Party in connection with any activity or business other than that of the disclosing Party without the disclosing Party’s prior written consent; provided, however, that this provision will not apply to information that (i) is at the time of disclosure a part of the public domain or thereafter becomes a part of the public domain through no violation of this Agreement, (ii) was in the possession of the receiving Party prior to its disclosure, (iii) is hereafter acquired by the receiving Party through a third party under no obligation of confidence to the disclosing Party, (iv) is independently developed by the receiving Party without the benefit or use of the disclosing Party’s information as evidenced by the receiving Party’s written records, or (v) is required to be disclosed by law, regulation or valid court or governmental order but only to the extent required thereby and only if the receiving Party first notifies the disclosing Party, to the extent permitted, of the law, regulation or order and permits the disclosing Party to seek a protective order or other relief from disclosure.
e. Enforcement. The Parties acknowledge and agree that a breach of the covenants in Section 3(c) or Section 3(d) may cause irreparable and material loss and damage to the non-breaching Party, the amount of which cannot be determined readily and as to which the non-breaching Party will not have an adequate remedy at law or in damages. In addition to any other remedy, upon adequate proof of the breach of, or threatened breach of, Section 3(c) or Section 3(d), the non-breaching Party will be entitled to seek, from any arbitrator, court or governmental authority (including any agency, board, bureau or official thereof) having jurisdiction over the claim, dispute, action, suit or any other proceeding, whether at law or in equity (“Proceeding”), immediate relief enjoining any threatened or further breach.
f. Third Party Resources. For purposes of this Agreement the term “Third Party Resources” means all resources, including software, hardware, text, images, audio and other content and material, in any format, that are obtained or derived from third-party sources outside of RLO. Client acknowledges and agrees that Client may require the use of Third Party Resources in connection with the Program. Client will be responsible for, at its own cost and expense, establishing, purchasing and maintaining any and all Third Party Resources. All ownership and intellectual property rights in and to Third Party Resources and the use thereof are not governed by this Agreement and may be governed by separate third-party terms between Client and the third party. CLIENT ACKNOWLEDGES AND AGREES THAT RLO IS NOT RESPONSIBLE FOR, AND HAS NO OBLIGATION TO CONTROL, MONITOR, OR CORRECT THIRD PARTY RESOURCES. RLO DISCLAIMS ALL LIABILITIES ARISING FROM OR RELATED TO THIRD PARTY RESOURCES. Client acknowledges and agrees that: (i) the nature, type, quality and availability of Third Party Resources may change at any time during the Term; and (ii) features of the Program that interoperate with Third Party Resources depend on the continuing availability of such Third Party Resources; and these factors shall not incur any liability to Client, including liability for a refund, credit or other type of liability. Client irrevocably waives, releases and discharges RLO from any claims arising out of or relating to Third Party Resources and Client’s use thereof.
4. TERM; TERMINATION
a. Term. Unless sooner terminated in accordance with this Agreement, this Agreement will be effective for the period outlined in the Program Agreement (the “Term”).
b. Termination.
i. Either Party may terminate this Agreement (a) upon written notice if the other Party is in breach of any of the provisions in this Agreement, which, if capable of cure, is not cured within fifteen (15) days after receiving written notice of the breach providing reasonable specificity of the grounds therefor; provided, however, that the breaching Party will not be entitled to cure any breach if the breaching Party has received a notice of breach within the immediately preceding twelve (12) months for substantially similar conduct, or (b) if the other Party is insolvent or makes any assignment for the benefit of her, his or its creditors, or initiates, consents to the initiation of, or is the subject of any Proceeding under any bankruptcy or similar laws for the relief of debtors.
ii. RLO may terminate this Agreement upon fifteen (15) days’ prior written notice to the Client.
c. Effect of Termination. Upon the expiration or earlier termination of this Agreement for any reason: (a) Client shall pay RLO in accordance with the Program Agreement; and (b) RLO shall promptly cease the Program. Except as expressly provided in this Agreement, the termination or expiration of this Agreement will not terminate or otherwise affect any Parties’ duties, liabilities, privileges, rights or obligations that existed prior to or on the effective date of such termination. Section 3(c), Section 3(d), Section 3(e), this Section 4(c), Section 5, Section 6, and Section 7 will survive the expiration or termination of this Agreement.
5. REPRESENTATIONS, WARRANTIES and DISCLAIMERS
a. Mutual Representations. Each Party represents and warrants to the other that: (i) it has all requisite power and right to execute, deliver and perform all of its duties, liabilities and obligations in this Agreement; (ii) its execution and delivery of this Agreement and its performance of its duties, liabilities and obligations contained herein, have been duly and validly authorized by all requisite action on the part of such Party; and (iii) this Agreement has been duly and validly executed and delivered by such Party and constitutes a binding and valid obligation of such Party, enforceable against it in accordance with its terms, subject to applicable bankruptcy, fraudulent conveyance, insolvency, moratorium and similar laws affecting creditors’ remedies and rights generally, and, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a Proceeding).
b. Warranties. Client acknowledges and agrees that RLO’s responsibility to Client under this Agreement (including the provision of the Program) is limited to RLO’s exercise of ordinary care.
c. LIMITATIONS TO RLO’S WARRANTIES. THE WARRANTY CONTAINED IN SECTION 5(B) IS THE SOLE WARRANTY PROVIDED BY RLO, AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTIES OF MERCHANTABILITY AND ANY WARRANTIES THAT MAY BE ALLEGED TO ARISE AS A RESULT OF CUSTOM OR TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
d. Claims. Any claim by Client with respect to the Program or the amount of Program Fees payable therefor, including any allegation or claim of defect, non-acceptance or breach of warranty, must be made in writing to RLO within thirty (30) days after RLO’s performance of the applicable portion of the Program, or such claim will be deemed waived.
6. LIMITATION OF LIABILITY AND INDEMNIFICATION
a. Indemnification. Client will indemnify and hold harmless RLO, its officers, agents and employees and associates from any Proceeding arising out of or related to this Agreement, as well as from all costs, expenses and reasonable attorneys' fees incurred therein, to the extent such Proceeding is at least proximately caused by Client’s act or omission. This Section 6(a) includes causes that are known or unknown, specifically mentioned or implied, or not mentioned nor implied, which might exist or be claimed to exist at or prior to the date of this Agreement.
b. LIMITATION OF LIABILITY. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, RLO’S LIABILITY FOR LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT (INCLUDING RLO’S OWN GROSS NEGLIGENCE), IN LAW OR EQUITY, WILL BE LIMITED TO THE LESSER OF THE ACTUAL DIRECT DAMAGES OR THE TOTAL OF THE PROGRAM FEES PAID TO RLO DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE FACTS OR CIRCUMSTANCES THAT GAVE RISE TO THE CAUSE OF ACTION FIRST OCCURRED OR WERE IN EXISTENCE. RLO WILL NOT, IN ANY EVENT, BE LIABLE TO CLIENT FOR ANY LOSS OF PROFITS, LOSS OF THE USE OF ANY REVENUE OR PROFITS OR ANY CONSEQUENTIAL, ECONOMIC, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR THIRD PARTY DAMAGES INCURRED, EVEN IF RLO HAS BEEN ADVISED OF THE LIKELIHOOD OR POSSIBILITY SUCH DAMAGES MAY BE INCURRED.
7. MISCELLANEOUS
a. Insurance. Any insurance that may be carried by either RLO or Client against any loss or damage is for the sole benefit of the Party maintaining such insurance.
b. Interpretation. The use in this Agreement of the word “including” means “including, without limitation.” The title of and the article, section and paragraph headings in this Agreement are for convenience of reference only and will not affect or govern the interpretation of this Agreement. Where specific language is used to clarify by example a general statement in this Agreement, such specific language will not be deemed to limit, modify or restrict in any manner the construction of the general statement to which it relates. This Agreement and the Program Agreement are intended to be read and construed in harmony with each other, but in the event of a conflict between any provision in this Agreement and the Program Agreement, the Program Agreement takes precedence over this Agreement.
c. Notices. All notices, payments, reports, requests, returns or other communications delivered pursuant to this Agreement and other applicable law will be in writing and will be deemed to be sufficient if delivered to the Parties using the applicable contact information in the Program Agreement.
d. Benefits; Assignment. This Agreement will be binding upon and inure solely to the benefit of the Parties and their respective successors, permitted assignees, personal representatives, heirs, estates, executors and affiliates, as applicable. This Agreement will not be assignable by any Party without the prior written consent of the other Party, except that RLO may assign this Agreement or RLO’s rights, duties and obligations hereunder to any person or entity succeeding to all or any substantial portion of RLO’s business.
e. Remedies. The pursuit of any remedy or right by a Party will not be deemed an exclusive election of the remedy or right and will not preclude the Party from exercising or pursuing any other available remedy or right. To the extent permitted by any applicable law, all remedies and rights (i) will be cumulative, (ii) will be in addition to any other remedies and rights provided by applicable law and (iii) may be exercised concurrently or separately.
f. Waiver. The failure of any Party to seek redress for a breach of or default under, or failure to insist upon the strict performance of, any provision contained in this Agreement, does not prevent a subsequent act or failure from having the effect of an original breach of or default under, or failure to satisfy, any provision contained in this Agreement. No waiver of any provision contained in this Agreement is effective unless it is contained in a written document executed by each Party. No waiver by any Party of any breach of or default will extend to any prior or subsequent breach of or default.
g. Litigation Expenses. The prevailing Party in any Proceeding brought to enforce this Agreement will be entitled to an award of all expenses and fees incurred in connection with asserting, appealing, defending or investigating any claim or dispute in a Proceeding, including all reasonable fees and disbursements to legal counsel and other professionals, including in any Proceeding to determine entitlement to and the amount of reasonable fees and disbursements of legal counsel (collectively, “Litigation Expenses”) incurred by the prevailing Party arising out of or related to the Proceeding (including any appeal), which award of Litigation Expenses will be in addition to any other remedy awarded in the Proceeding.
h. Governing Law; Waiver of Jury Trial. THIS AGREEMENT WILL BE CONSTRUED, GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF FLORIDA WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE. THE PARTIES INTENTIONALLY, KNOWINGLY AND VOLUNTARILY WAIVE ALL OF THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY PROVISIONS IN THIS AGREEMENT.
i. Jurisdiction; Venue. Each of the Parties irrevocably and unconditionally submit to the exclusive jurisdiction of any Florida state court or federal court of the United States of America sitting in or having jurisdiction over Seminole County, Florida, and any appellate court from any such Florida state court or federal court, in any Proceeding arising out of or related to this Agreement.
j. Severability. If any provision in this Agreement would be held in any jurisdiction to be illegal, invalid, prohibited or unenforceable for any reason, then such provision, as to such jurisdiction, will be ineffective without invalidating the remaining provisions in this Agreement or affecting the enforceability, legality or validity of such provision in any other jurisdiction. Anything in the immediately preceding sentence to the contrary notwithstanding, if such provision could be drawn more narrowly so as not to be illegal, invalid, prohibited or unenforceable in such jurisdiction, it will be so narrowly drawn, as to such jurisdiction, without invalidating the remaining provisions in this Agreement or affecting the enforceability, legality, or validity of such provision in any other jurisdiction.
k. Force Majeure. Neither Party shall be liable for any failure or delay in performance of its obligations under this Agreement to the extent such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of God, acts of a public enemy, fires, floods, terrorism, quarantines, pandemics, wars, civil disturbances, sabotage, accidents, insurrections, blockades, embargoes, storms, explosions, labor disputes and action or inaction of any governmental body (collectively, a “Force Majeure Event”). Each Party shall use its reasonable efforts to minimize the duration and consequences of any failure of or delay in performance resulting from a Force Majeure Event. Notwithstanding anything to the contrary in this Section, liability for a failure to pay Program Fees may not be excused by a Force Majeure Event.
l. Amendment. RLO reserves the right to modify, amend, or otherwise change the terms of this Agreement from time to time in its sole discretion. Any such modifications shall be effective immediately upon posting on the hosting location specified in the Program Agreement or as otherwise determined by RLO.
Entire Agreement. This Agreement (including the Program Agreement issued hereunder) contains all of the agreements, contracts and understandings among the Parties with respect to the subject matter hereof and supersedes all prior agreements, contracts and understandings among the Parties with respect to the subject matter hereof.
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