10.1 Independent Contractor. The Parties agree that the relationship of SI to the Client created by this Agreement is that of an independent contractor. Nothing in this Agreement shall create a relationship of employer/employee, joint venture or principal/agent.
10.2 Entire Agreement; Amendment and Waiver. This Agreement and each Statement of Work incorporated herein by reference collectively contain the entire understanding between the Parties hereto with respect to the subject matter of this Agreement and supersede all prior and contemporaneous agreements and understandings, inducements or conditions, express or implied, oral or written, with respect to the subject matter of this Agreement. The express terms of this Agreement control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof. This Agreement may not be modified or amended other than by an agreement in writing signed by both Parties.
10.3 Section Headings. The section headings in this Agreement are for convenience only; they form no part of this Agreement and will not affect its interpretation.
10.4 Force Majeure. Any delay or failure by any Party to perform any of its obligations hereunder (except for financial or confidentiality and nondisclosure obligations) will be excused if and to the extent caused by occurrences beyond that Party’s reasonable control, including acts of God, strikes or other labor disturbances, war (whether declared or undeclared), sabotage, terrorism, civil strife or commotion, acts by governmental authorities and any other cause or causes, whether or not similar to those specified herein, which cannot reasonably be controlled by such Party. If any such delay or failure continues for a period in excess of thirty (30) days, then, notwithstanding the termination provisions set forth above, any Party has the right to terminate this Agreement upon written notice to the other Party
10.5 Governing Law; Venue and Jurisdiction. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA, without giving effect to principles of conflicts of Law that would result in the application of the Laws of any other jurisdiction. EACH PARTY CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF COMPETENT STATE AND FEDERAL COURTS IN THE STATE OF FLORIDA FOR ANY LITIGATION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, AND TO THE VENUE OF SUCH LITIGATION OR PROCEEDING IN THE STATE OR FEDERAL COURTS LOCATED IN DUVAL COUNTY, FLORIDA. THE PARTIES HAVE AGREED TO ARBITRATE ANY AND ALL DISPUTES HEREUNDER, PLEASE SEE PARAGRAPH 10.12.
10.6 Severability. In the event that any provision of this Agreement shall be held to be illegal, or otherwise unenforceable, such provision shall be severed and the entire Agreement shall not fail on account thereof and the balance of the Agreement shall continue in full force and effect; provided, however, that if the severing of such provision results in a material alteration of this Agreement, the remaining provisions of this Agreement shall be adjusted equitably so that no Party benefits disproportionately.
10.7 Succession and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. No Party may assign either this Agreement or any of its rights, interests or obligations hereunder without the prior written approval of the other Party; provided, however, that SI may, without the prior consent of Client, (i) assign any or all of its rights and interests hereunder to one or more of its affiliates or any successor-in-interest, provided such assignee has agreed to be bound by the terms and conditions of this Agreement and (ii) designate one or more of its qualified independent contractors to perform its obligations hereunder (in any or all of which cases SI nonetheless shall remain responsible for the performance of all of its obligations hereunder). Notwithstanding the foregoing, SI may, without the written consent of Client, assign or transfer this Agreement and SI’s obligations hereunder to any third-party as part of a sale or exchange of all or substantially all of the assets of SI; provided, further, that (i) the third-party to which this Agreement is assigned or transferred under this sentence must agree to be bound by the terms and conditions of this Agreement for such assignment or transfer to be effective and (ii) upon such assignment and such acceptance, the obligations and duties of SI under this Agreement shall terminate and have no further force or effect.
10.8 No Third-Party Beneficiaries. This Agreement shall not confer any rights or remedies upon anyone other than the Parties and their respective successors and permitted transferees or assigns.
10.9 Notices. All notices, reports, requests, approvals and other communications required or permitted under this Agreement must be in writing and will be deemed given when: (i) sent by commercial overnight courier with written verification of receipt, or (ii) sent by registered or certified mail, postage prepaid, with return receipt requested. All communications must be sent to the receiving Party’s address (as provided on page 1 of this Agreement) or to any other address that the receiving Party may have, by proper notice, provided for the purpose of revising its notice address. Notices to SI shall be directed to its President at the address set forth on the first page of this Agreement. Notices to Client shall be directed to Client at its address set forth on the signature page of this Agreement (or as separately provided on an SOW).
10.10 Survival. The provisions of Sections 4.3, 6, 7, 8, 10.1-10.9, 10.12 and this Section shall survive the termination or expiration of this Agreement.
10.11 Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or portable document format (PDF)), all of which shall be considered an original copy of one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the Parties hereto and delivered to the other Parties.
10.12 Individual Arbitration of Covered Disputes and Related Provisions. Applicability; Exceptions; Court and Jury Trial Waiver. Under this Section 10.12 of the Agreement, the parties, mutually agree that any and all disputes arising out of or related to this Agreement (“covered disputes”) shall be subject to final and binding arbitration under the arbitration provisions set forth below and not decided by a court or a jury. This means that SI and Client (collectively, the “Arbitration Parties”) have selected arbitration as the sole and exclusive forum for the Arbitration Parties to sue or be sued for all covered disputes, regardless of when the dispute first arose and irrespective of the time period(s) involved in the dispute (subject to the applicable statute of limitations), and that none of the Arbitration Parties shall have any right to bring or litigate any covered disputes in court or before a jury.
The Arbitration Parties intend to require arbitration of all covered disputes that can lawfully be arbitrated. It is understood by the parties that “covered disputes” shall include any and all such disputes not only against the Arbitration Parties but also their owners’ heirs, executors, personal representatives, officers, agents, employees, members, shareholders, directors, managers, attorneys, successors and assigns and affiliates; the parties further agree that all of those described in this sentence (other than the Arbitration Parties themselves) are third- party beneficiaries of this Section 10.12. The terms of this Section 10.12 shall and will continue to apply to the Arbitration Parties regardless of the date that SI first or last provided services under this Agreement and regardless of when any covered dispute arose, subject to the applicable statute of limitations. Because the term “covered disputes'' only covers disputes or claims that either party has the legal right to sue for in court or before a jury, it is understood that nothing in this Section 10.12 limits or forecloses any legal rights that either party may have to commence, participate in, or assist others in any proceeding or investigation of any nature before or related to an administrative, regulatory, or law enforcement agency.
THE ARBITRATION PARTIES WAIVE ANY RIGHT TO A TRIAL BY A JURY OF A COVERED DISPUTE OR TO HAVE A COVERED DISPUTE BE DECIDED BY A COURT OR A JURY. ANY VENUE SELECTION CONTAINED IN THIS AGREEMENT SHALL NOT BE DEEMED A WAIVER OF THIS ARBITRATION AGREEMENT BUT RATHER IN THE EVENT A COURT SHOULD SET IT ASIDE.
Usage of JAMS Streamlined or Comprehensive Arbitration Rules and Procedures; Arbitrator to Decide All Issues; Arbitrator’s Decisions Are Final and Binding. Any of the Arbitration Parties shall initiate arbitration under either the Streamlined or Comprehensive Arbitration Rules and Procedures of JAMS, the largest private alternative dispute resolution provider in the world. Those Rules and Procedures are currently available for review at www.jamsadr.com (under the Rules/Clauses tab). The arbitrator (and not a court or jury) shall decide all issues in any covered dispute including but not limited to issues regarding the non-availability of class arbitration, timeliness, scope of arbitrator’s authority, arbitration procedures, statute of limitations, and all other issues regarding the application, interpretation, enforceability, coverage, and implementation of this Section 10.12. The arbitrator’s decisions shall be final and binding. The Arbitration Parties agree that a court of competent jurisdiction shall have the authority to enter a judgment upon the award made by the arbitrator or to confirm an arbitration award, and any such proceeding shall not itself be deemed a covered dispute.
Location of Arbitration Shall Be Closest to SI; Selection and Authority of Arbitrator; Full Remedies Available; Choice of Law; Statute of Limitations; Enforceability. The Arbitration Parties agree that any such arbitration shall be held in Jacksonville, FL, or such other location as SI may designate in its sole and absolute discretion. It is further agreed between the Arbitration Parties that a single arbitrator shall be selected by the parties to any such arbitration consistent with the applicable JAMS Rules and Procedures. To the fullest extent permitted by law, the Arbitrator shall have the power and authority to award any remedy or relief available under applicable law and shall be the sole authority to interpret and apply the provisions in this Section 10.12 of the Agreement. This Agreement and this paragraph 10.12 including but not limited to the resolution of all covered disputes are governed by federal and state arbitration laws, except for any such arbitration law that would otherwise prohibit or bar the arbitration of covered disputes. The Arbitrator shall have the authority to apply any federal, state, or municipal law, or executive order, or any common law that the Arbitrator deems applicable to the covered dispute. In the case of state law, the Arbitration Parties authorize the Arbitrator to apply the law of the state of Florida. Any and all issues arising out of this Agreement or a covered dispute, including but not limited to issues regarding this Section 10.12 governing arbitration and its application, coverage, scope, enforceability, validity, irrevocability, remedies, location, limitations, fees (see below), awards (see below), attorneys’ fees (see below), opt-out provisions (see below), class action waiver (see below), and choice of law, shall be decided by the Arbitrator and not by a court or jury. Likewise, any questions, issues, matters, or disputes arising under this Section 10.12 regarding arbitration, including but not limited to whether any such question, issue, matter, or dispute should be decided by an arbitrator or a court or jury, shall be decided by the Arbitrator and not by a court or jury. The statute of limitations for any covered dispute shall be consistent with the applicable statutory and common law statutes of limitations. If there are any ambiguities in the terms or conditions of this Section 10.12 (or, for the sake of clarity, any provisions that are inconsistent), it is the Arbitration Parties’ intent that all ambiguities or inconsistencies be resolved in favor of arbitration. If any provision of this Section 10.12 is unenforceable, the remainder of this Section 10.12 shall remain in full force and effect.
Individual Arbitrations; No Consolidated or Joint Actions; Class and Collective Action Waiver. The Arbitration Parties agree that all covered disputes brought against each other by another Arbitration Party will be arbitrated on an “individual basis” only (which, for purposes of this Agreement, means only between the applicable Arbitration Parties) and not in a class action arbitration, a collective action arbitration, or on a group, representative, consolidated or joint basis with any parties other than the Arbitration Parties. The Arbitrator shall have no authority to consider or resolve any claim or issue in a covered dispute on any basis other than on an individual basis and may not consolidate or join one or more covered disputes. The provisions in this Section 10.12 mean that both parties waive their right to commence, become a party to, or in any way participate as a representative or member in any class action, collective action, or group or representative action, proceeding, or claim against the other party or in any such action or claim consolidated or joined with another person or entity, with respect to any covered dispute, and each Arbitration Party agrees to opt-out of or be severed from any such action, proceeding or claim. For the sake of clarity, it is understood that nothing in this paragraph 10.12 limits or forecloses any Arbitration Party’s right to give testimony or assist another private or a governmental party in any proceeding of any nature.
Fees; Award. Consistent with the applicable JAMS Arbitration Rules and Procedures, the parties to an arbitration covered by this Section 10.12 agree that they shall share equally (each side shall pay one-half) of the fees and costs of the Arbitrator and the fees and costs of arbitration charged by JAMS; except that: (i) in all cases where required by law, SI will pay the full amount of the Arbitrator's and JAMS arbitration fees and costs; and (ii) where the Arbitrator determines that it is appropriate or necessary based on the financial resources of the parties, one party shall pay more than one-half, in an amount to be determined by the Arbitrator as fair and equitable. For sake of clarity, it is understood that if any applicable law or court decision limits the amount of filing and other fees that a party shall pay as the fees to any arbitration panel such as JAMS or to an arbitrator, then such party shall not be obligated to pay any fees in excess of such limits. Each of the parties to any arbitration covered by this Section 10.12 shall bear the cost of its own legal fees and costs, including but not limited to attorneys' fees and expert witness fees, subject to any right to recover such fees and costs under applicable law, which the Arbitrator shall apply where applicable. In rendering an arbitration award, the Arbitrator shall apply applicable and appropriate law and shall award all statutory remedies and penalties, including attorneys' fees and costs to the extent authorized by and consistent with law. The award shall be in writing and the arbitrator shall set forth the essential findings of fact and law.