12.1. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Florida (federal and state) as applied by courts within the State of Florida to commercial contracts made and performed wholly within the State of Florida.
12.2. Jurisdiction in Case of Controversy / Venue / Waiver of Trial By Jury. The Parties consent and agree that the Courts having Jurisdiction over Palm Beach County, Florida or the United State District Court for the Southern District of Florida, West Palm Beach Division shall have exclusive jurisdiction and venue over any suit, action, proceeding, or controversy arising under or relating to this Agreement and shall be the sole and proper forum in which to adjudicate any such suit, action, proceeding or controversy. THE PARTIES HEREBY WAIVE TRIAL BY JURY.
12.3. Service of Process. Service of process shall be deemed effective if made in accordance with the rules of the court specified in paragraph 12 in which the action or proceeding is commenced. Upon such service of process, venue shall thereupon be deemed correct, proper, and non-changeable and the parties hereby waive any objection which either of them may now or hereafter have to the jurisdiction and the laying of venue in any such suit, action, proceeding, or controversy arising under or relating to this Agreement.
12.4. Return of Documents. Upon the expiration or termination of this Agreement and regardless of the reason or cause of such expiration or termination, unless otherwise directed in writing by Disclosing Party, Receiving Party shall return and ensure that all persons or entities to whom it has disclosed the Information of Disclosing Party shall return all copies of the Information (whether prepared by Disclosing Party or Receiving Party or others) to Disclosing Party, upon the earliest of: (a) the fifth (5th) business day after receipt by Disclosing Party of written notice from Receiving Party or (b) written certification by an executive officer of Receiving Party that all Information, including Information described in this Paragraph, had been destroyed and no copies retained; provided, however, that Webmaster For Hire shall deliver only all paid-for DELIVERABLES (whether or not complete), Client Data, and Client Content to Client. Other than as provided for herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
12.5. Notices. Any notice, request, demand, offer, payment or communication required or permitted to be given by any provision of this Agreement shall be deemed to have been delivered and given for all purposes if written (a) at the time such notice is delivered personally, (b) at the time of delivery by overnight courier or delivery service provided that such courier or delivery service provides proof of delivery or (c) by registered or certified United States mail, postage and charges prepaid, addressed to the intended recipient, at the address specified in this Agreement, at such time that the intended recipient or the agent thereof signs or executes the receipt or rejects delivery or (d) by electronic mail, provided such notice by electronic mail is confirmed by the use of any other method provided for in this paragraph 16. Notices shall be sent to the addresses specified in this Agreement, or such other address as the appropriate party may advise the other party in writing.
12.6. Entire Agreement. This Agreement embodies the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces all previous negotiations, understandings, representations, writings, and contract provisions and rights relating to the subject matter hereof.
12.7 No Presumption Against Drafter. The parties to this Agreement acknowledge that the Agreement has been the subject of negotiations between and among the parties. Each party has had an opportunity to be represented by an attorney. Accordingly, there shall be no presumption against the party who has drafted this Agreement.
12.8. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns; provided that this agreement may not be assigned by Client without the written consent of Webmaster For Hire, which consent shall be at the sole discretion of the Webmaster For Hire.
12.9. Invalidity. If for any reason any provision of this Agreement shall be deemed to be legally invalid or unenforceable in any jurisdiction to which it applies by a court of competent jurisdiction, the validity of the remainder of the Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law, and, in its modified form, such provision shall then be enforceable and enforced.
12.10. Attorneys’ Fees. In the event of any action, claim, proceedings, or suit between the parties to this Agreement, the party prevailing in such suit shall be entitled to recover, in addition to all other remedies or damages as herein provided or as provided by law, reasonable attorneys’, paralegals’, or expert witnesses’ fees and costs incurred in such suit at trial or on appeal or in connection with any bankruptcy, administrative, post-judgment or similar proceedings. In the event of an arbitration between the parties, the arbitrators are authorized to enter an award for attorneys’ fees to the prevailing party.
12.11. Counterparts. This Agreement may be executed in one or more counterparts, all of which shall constitute one and the same instrument. Any counterpart to this Agreement, to the extent delivered by means of a facsimile machine or by .pdf, .tiff, .gif, jpeg or similar attachment to electronic mail shall be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any Party hereto, each other Party hereto shall re-execute the original form of this Agreement and deliver such form to all other Parties.
12.12. Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Webmaster For Hire’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
12.13. Assignment. Client shall not assign or otherwise encumber or transfer by operation of law or otherwise to any third part without the express written consent of Webmaster For Hire, which consent shall be in the sole discretion of Webmaster For Hire. Webmaster For Hire shall have the right to assign, in whole or in part, this Agreement to any third party without the consent of Client.
12.14. Force Majeure Events. Neither party shall not be deemed in breach of this Agreement if a party claiming inability to perform any portion of this Agreement by reason of a Force Majeure Event. Upon occurrence of any claimed Force Majeure Event by a party to this Agreement, such party shall give written notice to the other party of such inability to perform or of delay in such performance together with such reasonable time-period in which performance shall be resumed. Notwithstanding the provision of this paragraph, neither party may claim a Force Majeure Event if performance can be conducted by electronic means, by way of example and not limitation, through the use of the internet to provide services by Webmaster For Hire or payment by Client through electronic funds transfers.
12.15. Dispute Resolution. The parties desire to resolve any dispute without first resorting to litigation. Accordingly, the following approach to resolve differences between the parties shall apply.
12.15.1. Step One-Good Faith Negotiation. The Parties agree that, before resorting to any formal dispute resolution process concerning any dispute arising from or in any way relating to this Agreement (“Dispute”), the parties shall first attempt to engage in good faith negotiations in an effort to find a solution that serves their respective and mutual interests, including their continuing business relationship. Party-principals agree to participate directly in the negotiations. Unless otherwise agreed in writing, the Parties shall have five (5) business days from the date the questioning party gives written notice to the other of the particular issue (“Notice”) and to begin negotiations within 10 business days from the Notice to complete these negotiations concerning the Dispute
12.15.2. Step Two- Mediation. If the negotiations do not take place within the time provided above, or if the negotiations do not conclude with a mutually agreed upon solution within that time frame (or its agreed upon extension) specified above, the Parties agree to mediate such dispute before 0ne mediator under the Commercial Mediation Procedures of the American Arbitration Association. Any mediation shall be held in Palm Beach County, Florida. The parties shall share equally all of the costs of the Mediation. Mediation by electronic means is shall be permitted as determined by the Mediator
The Parties shall have 45 calendar days after the appointment of the mediator(s) within which to commence the first mediation session following the conclusion of their Good Faith Negotiations or expiration of the time within which to negotiate a settlement as stated above. The Parties further confirm their motivating purpose in selecting mediation is to find a solution that serves their respective and mutual interests, including, if at all possible, their continuing business relationship.
12.15.3. Step 3-Lack of settlement in Mediation. In the event that the parties are unsuccessful in the mediation, either party may commence litigation against the other
12.15.4. Restriction on Scope of Mediation. The Mediator shall have no power or authority to diminish the parties’ trademarks, patents, copyrights, trade names, service marks, trade secrets, other intellectual property rights or the No Solicitation provision of this Agreement (collectively, “Mediation Exclusions”) or to vary the terms, conditions or payments contained in this Agreement. A party wishing to proceed through an action, suit or proceeding with respect to Mediation Exclusions may do so, including, without limitation, protecting any of same against infringement, misappropriation, theft of trade secrets and unfair competition, and recovery damages and/or obtaining injunctive relief.
12.16. Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this AGREEMENT nor shall such headings otherwise be given any legal effect.
12.17. Non-Disparagement. Each of the parties hereto and their respective agents agree that they will not engage in any disparaging communications (whether verbal, written, online or through any social media platform) regarding one another or any of its respective members, employees, officers, directors, or agents.
12.18. Effective Date. Immediately upon signing up for services or plans with Webmaster For Hire.