Master Agreement

 

This Master Business Agreement, aka Business Agreement (“Agreement”) into between Allunna, Inc (dba 3degreeZ Marketing)., a Florida corporation, with offices located at 401 East Las Olas Blvd, Suite 130-457, Fort Lauderdale, Florida  33301 (“3DEGREEZ”) a Florida Corporation the “Client” and together with 3DEGREEZ the “Parties” and individually a “Party”).

This Agreement shall apply to the Products and Services (as described herein or more specifically in the Engagement Scope Document or Quote, (“ESD”), as such term is described herein) provided by 3DEGREEZ to the Client under this Agreement. The Client may place orders under this Agreement by signing the ESD. The terms and conditions set forth in this Agreement and in any ESD shall control in the event that there are different or additional terms set forth in any other purchase order submitted by the Client or acceptance form or invoice issued by 3DEGREEZ. The terms and conditions of any ESD shall incorporate the terms and conditions of this Agreement, and this Agreement shall control over any conflicting terms and conditions contained therein.

  1. Definitions

ESD” shall mean a document provided by 3DEGREEZ to the Client describing the Services and which is executed 3DEGREEZ.  Each ESD shall incorporate this Agreement by reference.

“Client” shall mean any existing or future subsidiaries of the Client that are operating during the time periods described herein and any other entities that directly or indirectly, through one or more intermediaries, control, are controlled by or are under common control with the Client during the periods described herein. The provisions of this Section shall survive any termination or expiration of this Agreement.

 “Confidential Information” shall mean the Developed Software, the Custom Software, the 3DEGREEZ Software, the Third Party Software (all as hereinafter defined), any other commercial or technical information disclosed or made available by either Party to the other, and any other items that are marked or identified as “confidential” or “proprietary” or with other similar words. Without limiting the foregoing, Confidential Information shall include any and all technical and business information disclosed in any manner or form including, but not limited to, business strategies, methodologies, trade secrets, pricing, software programs, relationships with third parties, client lists and information regarding clients, vendors, employees and affiliates.

“Expenses” shall mean any amounts for airfare, other transportation (such as taxi cabs), meals, lodging, travel time, overnight delivery or priority delivery service, long distance telephone calls, facsimile support, electronic mail or other support, any on-site training and other such reasonable amounts incurred by 3DEGREEZ in providing any service to the Client.

 “Fee” shall mean any and all amount due and payable by Client to 3DEGREEZ for Services and Products provided to Client pursuant to and in accordance with the terms of this Agreement. Fee shall include but not be limited to (i) Fees for Services and Products provided; (ii) all Expenses; (iii) all Surcharges; (iv) all Interest and (v) any and all amounts expended by 3DEGREEZ in the collections of any delinquent outstanding accounts.

“Retainer Amount” shall mean an amount equal to 100% of the monthly Fee for Services payable by Client to 3DEGREEZ before the commencement of any Services or delivery of any Products.

“Services” shall mean all services provided by 3DEGREEZ under this Agreement.

“Products” shall mean all products purchased by 3DEGREEZ for the Client as approved by Client in writing or through a signed ESD provided by 3DEGREEZ under this Agreement.

  1. Independent Contractor

The relationship of 3DEGREEZ and the Client established pursuant to the terms of this Agreement is that of an independent contractor. Nothing herein shall be construed so as to constitute 3DEGREEZ as an employee or agent of the Client. Accordingly, 3DEGREEZ, by way of illustration and not limitation, shall be solely responsible for all federal, state and local income (excluding withholding taxes) and unemployment taxes, social security contributions, workers’ compensation premiums and all similar taxes and payments concerning 3DEGREEZ, its employees, representatives and agents. 3DEGREEZ shall not be eligible to participate in any of the Client’s employee or fringe benefits, profit sharing, Social Security benefits, Workman’s Compensation benefits, disability or unemployment benefits, group health, major medical or disability insurance coverage or benefits. The Client shall not be required to withhold any of such taxes or payments from sums to be paid hereunder to 3DEGREEZ or be liable for the payment of same to any federal, state or municipal government or agency.

  1. Compensation
  • Prior to 3DEGREEZ providing any Services and/or Products to Client, Client will pay to 3DEGREEZ the Retainer Amount. 3DEGREEZ will have the right, in its sole discretion, to apply the Retainer Amount, or such portion thereof as 3DEGREEZ determines in its sole discretion, to any payments, whenever accrued, that are past due. All Retainer Amounts are non-refundable.
  • Fees. Client agrees to make all payments to 3DEGREEZ in accordance with the terms herein or terms defined in the ESD. The Client shall pay for Services at the rates that are current as of the date such Services are requested. As of the date of this Agreement, 3DEGREEZ’s rates are as follows:
  • Unless otherwise indicated in the ESD, Invoices for Services will be rendered 15 days in advance of the to be performed monthly services and in for any incurred. All charges incurred for Services performed and/or Products provided under this Agreement are due and payable within five (5) days of the date of the invoice without demand or set off by Client. All charges set forth in this Agreement are stated in U.S. dollars and do not include any sales, use or similar taxes, which amounts are the responsibility of the Client. In the event the Client fails to timely pay all amounts when due under the terms of this Agreement, 3DEGREEZ may at its option, suspend its performance hereunder, and such suspension by 3DEGREEZ will not constitute a breach of this Agreement by 3DEGREEZ. The exercise of such right by 3DEGREEZ will not preclude 3DEGREEZ’s exercise or enforcement of any other right or remedy hereunder.
  • All past due payments will bear interest at a rate of one and one-half percent (1½%) per month from the past due date until the date of receipt of payment by 3DEGREEZ or at the highest rate of interest allowed by the laws of the State of Florida, whichever is lower.
  1. Ownership (Works); Grant of Security
  • “Developed Works” means any material created or owned by 3degreeZ prior and during the term of this agreement used for the benefit of the client.  Developed Works shall include all ideas, campaign themes, creative materials in any format, digital or otherwise, concepts, processes, developed software, software configurations, software customizations or any other communications from 3DEGREEZ to the client during the term of this agreement.
  • ii) “3DEGREEZ Software” means pre-existing software owned by 3DEGREEZ incorporated into the Developed Software. 3DEGREEZ retains all rights to 3DEGREEZ Software. 3DEGREEZ will grant to Client at no additional cost a worldwide, non-exclusive, non-transferable license to use and modify 3DEGREEZ Software in connection with the Developed Software for a period of one (1) year.
  • “Third Party Software” means software owned by a third party used to create the Developed Software. In most instances, 3DEGREEZ sublicenses Third Party Software directly to Client. Client hereby expressly agrees that any such sublicensing granted by 3DEGREEZ shall be subject the terms, limitations and obligations set forth in the Third Party Software license. 3DEGREEZ makes no representations or warranties as to any Third Party Software licensing.
  • All Developed Works, unless otherwise specified in ESD/SOW, is deemed to be non-perpetual and shall be licensed for use only. Further in the event of any breach of this or any other agreements by the Client, 3degreeZ at its sole discretion, may suspend use, maintenance, or any related services, for any and all licenses provided by 3DEGREEZ.
  • In order to secure the prompt and complete payment, performance and observance of all of Client’s obligations hereunder and/or any SOW/ESD, the Client hereby assigns and pledges to 3DEGREEZ, and hereby grants to 3DEGREEZ, a first priority security interest in and to all of the Developed Works, whether now owned or existing or hereafter arising or acquired and wherever located, together, in each instance, with all accessions and additions thereto, substitutions therefore, and replacements, Proceeds (as such term is defined in the Uniform Commercial Code as in effect in the State of Florida) and products thereof. The Client hereby authorizes 3DEGREEZ to file one or more financing or continuation statements and amendments thereto, disclosing the security interest granted to 3DEGREEZ under this Agreement.
  1. Confidentiality

Disclosure.  The Parties acknowledge that in the performance of their obligations under this Agreement, each may be required from time to time to disclose to the other Confidential Information. In view thereof, the Parties agree as follows:

  • neither Party will divulge to others nor authorize any of its employees, agents, consultants or representatives to divulge to others any Confidential Information which has been provided to it by the other Party to this Agreement, unless compelled by a court of competent jurisdiction;
  • each Party will use the Confidential Information disclosed to it solely for the purpose of carrying out its respective responsibilities and obligations under the terms of this Agreement; and
  • each Party will take the same measures to protect the confidential nature of the Confidential Information disclosed to it as it takes to protect its own trade secrets and other Confidential Information, including, but not limited to, restricting disclosure of the Confidential Information to the minimum number of its employees who have a need to know such Confidential Information in order to carry out the responsibilities and obligations required under this Agreement, and requiring that all such employees understand and acknowledge in writing, if required by the other Party, their obligation and willingness to preserve and hold such Confidential Information in the strictest confidence.
  • No license to either Party’s Confidential Information is either granted or implied by the disclosure of such Confidential Information.
  • Within fourteen (14) days of a request by the disclosing party, the receiving party will return all property including, but not limited to, documents, records, tapes and any other media as well as all copies thereof in its possession or under its control that contains Confidential Information of disclosing party.

Copying. Neither Party will copy, in whole or in part, any Confidential Information disclosed to it by the other Party without first receiving written consent from the Party from whom such Confidential Information was received, except as specifically provided by this Agreement. Any copyright, confidentiality or other proprietary notices will be reproduced and included on all copies of Software or portions thereof, made by Client accordance with this Agreement.

Limitations. Neither Party’s obligation of confidentiality hereunder will extend to any of the following:

  1. Information which the receiving Party can show was previously known by the receiving Party, prior to any disclosure from the other, as evidenced in written documentation or other tangible forms dated prior to such disclosure;
  2. Information which the receiving Party can show is generally available to or known by the trade;
  3. Information which the receiving Party can show was received from any person, firm or entity without restriction and not in violation of any duty of non-disclosure on the part of such person, firm or entity; or
  4. Information which the receiving Party can show was developed independently by itself, or information which the receiving Party can show was disclosed pursuant to judicial process.

Injunctive Relief. The Parties acknowledge and agree that due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this Section 5 hereunder, and that any such breach would cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief, in addition to whatever additional remedies it might have at law, in equity or under this Agreement

  1. Survival of Provisions

The provision of Sections 4, 6, 7, 10, 11, 14 and 17 will survive termination of this Agreement and will continue for a period of three years after completion of the last ESD, and will be applicable to the successors of interest or permitted assignees of each Party. In the event of termination hereof, both Parties agree to return to the other Party any of the other Party’s Confidential Information and copies thereof which each may have in its possession

  1. Warranty Disclaimer and Limitation on Liability

THIS IS AN AGREEMENT FOR THE PROVISION OF SERVICES. 3DEGREEZ DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, WITH REGARD TO THE SERVICES AND MATERIALS PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT OR ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF ANY THIRD PARTY SOFTWARE. THE CLIENT’S SOLE REMEDY FOR ANY 3DEGREEZ BREACH OF WARRANTY OR REPRESENTATION WILL BE THAT 3DEGREEZ CORRECT THE FAILURE GIVING RISE TO THE BREACH.

Limitation on Liability

3DEGREEZ WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN CONNECTION WITH, THE PERFORMANCE OF THIS AGREEMENT OR ARISING OUT OF OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE BY ANY THIRD PARTY SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY LOST DATA OR INFORMATION OF ANY KIND, LOST REVENUE OR LOST PROFITS. CLIENT SPECIFICALLY AGREES THAT 3DEGREEZ SHALL NOT BE LIABLE FOR ANY PRICE CHANGES SET BY 3DEGREEZ’S PRODUCT VENDORS AND MANUFACTURERS. AT 3DEGREEZ’S SOLE DISCRETION, THE CLIENT’S SOLE REMEDY WILL BY LIMITED TO 3DEGREEZ CORRECTING ANY DEFECTS CAUSED BY 3DEGREEZ’S INTENTIONAL MISCONDUCT.

  1. Assignment

This Agreement, and each and every covenant, term and condition hereof, is binding upon and inures to the benefit of the Parties hereto and their respective successors and assigns, but neither this Agreement nor any rights hereunder may be assigned by the Client directly, indirectly, voluntarily or by operation of law, without first receiving the prior written consent of 3DEGREEZ. In the event of a sale or transfer of all or substantially all of the stock or assets of 3DEGREEZ, 3DEGREEZ shall have the right to assign its rights and obligations under this Agreement to the purchaser of such stock or assets.

  1. Waiver

No delay on the part of either Party in exercising any right or remedy under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy under this Agreement preclude any other or further exercise of such right or remedy. Failure of either 3DEGREEZ or the Client to enforce any term or condition of this Agreement will not constitute a waiver of such term or condition, and shall not constitute a precedent.

  1. Client’s Responsibilities

Good Faith Cooperation. At its expense, Client shall cooperate with 3DEGREEZ in good faith, and furnish information requested by 3DEGREEZ that is reasonably necessary for 3DEGREEZ to fulfill its responsibilities under this Agreement. In particular, Client will (i) provide documentation regarding Client’s technology base; (ii) documentation describing Client’s existing business and operational procedures and processes and (iii) provide a qualified Project Manager.

Access; Workspace. Client shall provide adequate workspace, access to systems, telecommunications connections, servers, network connections, high-speed error-free Internet access, adequate power availability, adequate environmental control and venting.

Participation. The Client will participate in all status meetings, complete assigned tasks on time.

  1. Non-disparagement

Each Party agrees that any and all of its officers, directors, employees, and contractors will refrain from any disparagement, criticism, defamation, or slander of the other Party and any of its employees, contractors, vendors, or affiliates, for any reason, to any party arising from the Parties’ agreement and/or relationship. Each Party further agrees to refrain from tortuous interference, for any reason, with the other Party’s relationship or future relationships with any of their respective clients, prospects, or vendors.

  1. Authorized Use of Client Name

Client expressly acknowledges and authorizes 3DEGREEZ to use Client’s name and logo in 3DEGREEZ promotional advertising or other materials regarding the Services and/or Products provided by 3DEGREEZ.

  1. Force Majeure

If the performance of any part of this Agreement is prevented, hindered or delayed, or otherwise rendered impracticable by reason of any strike, medical emergencies, the order of any civil or military authority, embargo, flood, riot, hurricane, strikes or other labor disputes, fire, explosion, war, unavailability of materials and/or supplies, failure or inability of public utilities to provide equipment or service, acts of God, acts of government, the failure of 3DEGREEZ’s suppliers to meet their contractual obligations, or any other casualty or any other cause of any nature that is beyond the control of 3DEGREEZ, 3DEGREEZ shall be excused from performance during the continuance of any such happening or event.

  1. Remedies

In the event of a “Client Default”, 3DEGREEZ may, upon 30 calendar days written notice to Client (in addition to such other rights or remedies as 3DEGREEZ may have under this Agreement, at law or in equity): (i) suspend Services to Client until such time as such default is remedied (provided 3DEGREEZ shall not be prohibited from terminating this Agreement after suspending Services); (ii) obtain an injunction prohibiting Client from using any of the Developed Work; and/or (iii) terminate this Agreement. “Client Default” shall mean Client: (i) breaches any material provision of this Agreement, including, but not limited to, the provisions regarding payment, and does not cure such breach within fifteen (15) days (five days with respect to the first three payment breaches and no notice period with respect to any further payment breach) of notice thereof by 3DEGREEZ; or (ii) files or initiates proceedings or has proceedings filed or initiated against it, relating to its liquidation, insolvency, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or other official) under any bankruptcy, insolvency or other similar law or makes an assignment for the benefit of its creditors or enters into an agreement for the composition, extension or readjustment of its obligation in connection with the foregoing.

Should 3DEGREEZ terminate this Agreement as a result of any Client Default, the Client, shall within 15 calendar days following the date the “Termination Date” pay to 3DEGREEZ such a Termination Fee. The “Termination Fee” shall be the sum of: (i) all unpaid invoices and (ii) remainder of all amounts of any contractual obligations per the corresponding ESD/SOW and (iii) all outstanding Expenses.

  1. Solicitation of Employees

Unless otherwise approved in writing, for the term of any ESD and a period of one year thereafter, the Client will not offer employment or contract work to any employee(s) and contractor(s) of 3DEGREEZ who are currently employed, or have been employed by 3DEGREEZ within the past year, either individually or through a third party.

  1. Taxes

Fees and expenses under this Agreement are exclusive of all taxes including state and local use, sales, property and similar taxes. Client agrees to pay any such taxes.

  1. Waiver

Either party’s failure to insist the strict performance of any term of this Agreement or failure to take advantage of any of its rights hereunder will not operate to excuse performance or waive any such right at any future time

  1. Indemnification

The Client shall indemnify, defend and hold harmless 3DEGREEZ, its subsidiaries, affiliates and their directors, officers, employees, agents, successors and assigns from and against any and all claims relating to this Agreement arising out of acts or omissions of the Client or any breach of any representations, warranties, or obligations of this Agreement by Client, including, but not limited to, any financial obligations incurred by 3DEGREEZ on behalf of the Client, attorneys’ fees required to defend 3DEGREEZ, or any liabilities of any kind or nature whatsoever arising out of or in connection with this Agreement. The Client is responsible for reviewing all creative materials and advertisements to ensure compliance with all federal, state/provincial and local laws and regulations. The provisions of this Section shall survive any termination or expiration of this Agreement.  If Client directs 3DEGREEZ to cancel or terminate any previously authorized agreements, 3DEGREEZ shall promptly take all appropriate action, provided that Client will hold Agency harmless with respect to any costs incurred as a result thereof.  3DEGREEZ agrees to indemnify the Client for any claim, including, but not limited to, attorneys’ fees and expenses of investigation, by any such third party that such third party may now have or may hereafter come to have against 3DEGREEZ based upon or arising out of any restriction or non-competition agreement or invention and secrecy agreement between the Agency and such third party. The provisions of this Section shall survive any termination or expiration of this Agreement.

  1. Severability of Terms

If any provision of this Agreement or any ESD is held invalid or unenforceable, the remaining provisions will not be affected. In such event, the invalid or unenforceable provision will be replaced by a mutually acceptable provision that comes closest to the original intent of the parties.

  1. Governing Law

The validity, interpretation, enforceability and performance of this Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida, without regard to the conflicts of law principles thereof. Each of the parties submits to the jurisdiction of any state or federal court sitting in Dade County, Florida in any action or proceeding arising out of or relating to this Agreement, agrees that all claims in such court, and agrees not to bring any action or proceeding arising out of or relating to this Agreement in other court. Each of the parties waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety, or other security that might be required of any other party with respect thereto.

  1. Termination

Either Party may terminate this Agreement with respect to future Statements of Work at any time upon 30 day written notice to the other Party. In the event of such termination, Client shall fulfill all of its financial and any other obligations under any outstanding Statements of Work

  1. Entire Agreement

This Agreement along with that certain ESD signed between 3DEGREEZ and the Client, constitute the entire agreement between the Parties concerning the subject matter hereof and may not be amended nor modified, except by written instrument signed and authorized by both Parties hereto. This Agreement supersedes all prior discussion, negotiation, and agreements, whether oral or written, regarding the subject matter herein.

  1. Arbitration

In the event of a dispute arising from this Agreement, you agree to submit to non-binding mediation within 30 days notice given by 3DEGREEZ to mediate. The parties may agree to use a mediator suggested by either party and certified within the State of Florida, or should the parties be unable to agree on a mediator, they will avail themselves of the Dade County, Florida Bar Association to suggest a mediator without prejudice. Should non-binding mediation not succeed in resolving the dispute within 15 days, both parties agree to submit to binding arbitration, within 15 days following termination of mediation, in Dade County, Florida at our request before a single counsel-arbitrator having at least ten (10) years of experience in similar matters and who is mutually acceptable to you and us, or if we cannot agree then as selected by the American Arbitration Association, arbitrator to be selected without prejudice by the American Arbitration Association. The prevailing party shall be reimbursed for all legal fees, costs and other related expenses.

  1. Attorneys’ Fees

In the event a dispute arises regarding this Agreement, the prevailing party shall be entitled to its reasonable attorney’s fees and expenses incurred in addition to any other relief to which it is entitled.

  1. Counterparts

This Agreement may be executed by the parties on any number of separate counterparts, and by each party on separate counterparts; each counterpart shall be deemed an original instrument, and all of the counterparts taken together shall be deemed to constitute one and the same instrument. A confirmed facsimile transmission of an executed signature page shall be effective as an original.

  1. Waiver of Jury Trial

3DEGREEZ AND CLIENT HEREBY KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON THIS AGREEMENT, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED IN CONNECTION HEREWITH OR RELATED HERETO, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR 3DEGREEZ TO ENTER INTO THIS AGREEMENT.