STANDARD TERMS AND CONDITIONS
THIS MASTER PRODUCTS AND SERVICES AGREEMENT (“Agreement”) is made and entered into by Customer “Customer”, and I.D. PLANS, INC., a Florida Corporation (“Company”), through the RPM Blanket Agreement and/or Space Profile Blanket Agreement entered into by Customer and Company. Each of Customer and Company are a “Party” and collectively, (The “Parties”).
IMPORTANT- READ CAREFULLY: THESE STANDARD TERMS AND CONDITIONS (“STC”) ARE MADE A PART OF AND ARE FULLY INCORPORATED BY REFERENCE INTO ALL COMPANY PROPOSALS. USE OF ID PLANS’ (“COMPANY”) REMOTE PROPERTY MANAGER PRODUCT, SPACE PROFILE PRODUCT AND THE USE OF ITS SOFTWARE (COLLECTIVELY THE “PRODUCTS AND SERVICES”) IS CONDITIONED UPON THE COMPLIANCE AND ACCEPTANCE OF ALL COMPANY PROPOSALS AND THIS STC BY ITS CUSTOMERS. COMPANY AND CUSTOMER WILL EACH BE REFERRED TO AS A “PARTY” AND WILL COLLECTIVELY BE REFERRED TO AS THE “PARTIES.” IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE TERMS OF ANY COMPANY PROPOSAL AND THIS STC, THE TERMS OF THIS STC SHALL CONTROL.
1.1 “Affiliate” shall mean a business entity effectively controlling or controlled by another or associated with others under common ownership or control.
1.2 “Customer Personnel” shall mean Customer’s managers, owners, officers, employees, agents, representatives and subcontractors.
1.3 “Company Personnel” shall mean Company’s managers, owners, officers, employees, agents, representatives and subcontractors.
1.4 “Proposal” shall mean the document executed by Company and Customer which sets forth additional commercial terms upon which Company will provide its Products and Services to Customer.
1.5 “Surveyed Property(ies)” shall mean Customer’s property or properties to be subject to a Proposal, which Proposal may be amended from time-to-time to add additional Surveyed Properties upon mutual agreement between the Parties, and the delivered products resulting therefrom.
1.6 “Work Product” shall mean all data, documentation, software, information, and other items, in whatever form, first produced or created by or for Company as a result of or related to the performance of work or the creation of Products.
2.0 Parties to STC.
This STC is entered into by and between Customer and Company. However, any Affiliate of Customer that is ultimately owned or controlled by Customer may contract for Products and Services with Company under this STC, and in such event the term “Customer,” as used in this STC, shall be deemed to apply to such Affiliate.
3.0 Products and Services.
Company shall provide the Products and Services in accordance with its Proposal.
Fees for Products and Services shall be as set forth in the applicable Proposal. Company may, at any point and in its sole discretion, make modifications to its fees as set forth within any Proposal upon written notice to Customer.
Unless otherwise set forth within a Proposal, Company will submit an invoice to Customer each month. Payment of invoices is due within thirty (30) days of the invoice date. Customer will incur a late fee of $100 plus 1.5% per month for payments that are received later than ten (10) days past due.
6.1 Company Personnel may perform work at Customer’s facilities pursuant to a Proposal. Accordingly, Customer shall provide access to such facilities as may be reasonably required to perform the work.
6.2 Company Personnel may be given access to Customer’s computer system(s). Company Personnel shall use such Customer’s computer system(s) only for the purpose of providing products required under an applicable Proposal and shall not use such Customer’s computer system(s) for any other purpose whatsoever, including, but not limited to, any recreational purposes, and will not attempt to access information for which Company has no authorization.
7.0 Dispute Resolution.
The Parties will attempt to resolve any dispute out of or relating to this STC and any Proposal through expeditious and friendly negotiations. If the dispute is not resolved by negotiation, the Parties will resolve the dispute using the below Alternative Dispute Resolution procedure. The dispute shall first be submitted to non-binding mediation in Hillsborough County, Florida. The Parties agree that the Party who initiates the dispute by this procedure shall provide to the non-initiating Party notice of the commenced proceedings and three (3) proposed mediators, whereby the non-initiating Party shall select one (1) mediator of the proposed mediators to conduct the mediation. The Parties further agree to share the expenses of the dispute resolution equally. Any controversies or disputes arising out of or relating to this STC will be submitted to mediation in accordance with any statutory rules of mediation. If mediation is not successful in resolving the entire dispute or is unavailable, any outstanding issues will be submitted to final and binding arbitration under the rules of the American Arbitration Association with the same process of selection of a single arbitrator within Hillsborough County, Florida. The arbitrator’s award will be final, and judgment may be entered upon it by any court of competent jurisdiction. The Parties agree to share the expenses of mediation and arbitration proceedings equally but shall be responsible for the expenses of their own legal counsel. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS STC OR ANY PROPOSAL IS LIKELY TO INVOLVE COMPLICATED AND TECHNICAL ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS STC OR ANY PROPOSAL. FURTHER, THIS STC IS SUBJECT TO MANDATORY MEDIATION AND ARBITRATION, AS SET FORTH IN THIS SECTION.
8.0 Mutual Confidentiality; Data Ownership and Non-Solicitation.
8.1 Mutual Confidentiality. Pursuant to this STC or any Proposal, one Party may receive confidential and/or proprietary information (“Confidential Information”) from the other Party, including information or materials with regard to which a Party may be under an obligation of confidentiality to third-parties. The Parties shall use such Confidential Information only in connection with the purpose of this STC and any Proposals, and shall safeguard such Confidential Information against disclosure to all third-parties who are not necessary to fulfill the Parties’ respective obligations to each other, both during and after the Term of this STC, unless express written permission is obtained from the disclosing Party or until such information becomes publicly available through a properly authorized source. Each Party shall exercise at least the same level of care to preserve the confidentiality of the other Party as it exercises to protect its own Confidential Information, but in no event less than a reasonable level of care.
8.2 Data Ownership. The Parties agree that notwithstanding anything in this STC or any Proposal, all Customer data pertaining to its physical locations, as well as any other data that Company collects while providing current and future Products and Services, including performing the work necessary to create and deliver Products and Services for Customer, shall be owned exclusively by Company.
8.3 Mutual Non-Solicitation. During the Term of this STC and for one (1) year after the last to occur of: (i) the termination of this STC; or (ii) the termination of the last remaining Proposal hereunder, neither Party shall, without the prior, written consent of the other Party, directly or indirectly, contact, solicit, attempt to solicit, divert or hire any employee of the other Party who was involved in the performance or receipt of work required to create or deliver the Products or Services hereunder. For purposes of this Section, a person is deemed to be an employee of a Party during the term of employment and for a period of six (6) months thereafter. The placement of a general employment advertisement shall not be deemed to be indirect or direct solicitation.
8.4 The Parties agree that violations of this Section 8 will cause the other Party irreparable and immediate harm and that the aggrieved Party is entitled to seek immediate injunctive relief from a court of competent jurisdiction to prevent such violation.
This STC shall become effective as of the Effective Date of the Proposal. This STC shall continue in full force and effect, on a month-to-month basis, until either Party terminates, as set forth below.
10.1 Individual Proposal. The Parties may not terminate a Proposal except in conformance with the terms set forth in the Proposal, or as permitted herein if there is no conflicting language in the Proposal.
10.2 Termination with No Default. Either Party may terminate this STC in its entirety or any individual Proposal at any time and for any reason or no reason without liability to the other Party upon providing the other Party no less than ten (10) days prior written notice of such termination; provided, however, that notwithstanding the termination of this STC pursuant to this Section, the terms and conditions of this STC shall continue to apply to all outstanding Proposals until such time as all outstanding amounts due for services rendered by Company through the date of termination have been paid by Customer. Further, the Parties can terminate this STC and any Proposal at any time by mutual written consent.
10.3 Termination for Default. Except as otherwise provided in this STC, if either Party shall default in the observation or performance of any covenant or agreement contained in this STC and such default continues for more than ten (10) days subsequent to receipt of the other Party’s notice (unless such default is not such that it can be cured with the exercise of reasonable efforts within such ten (10) day period and the defaulting Party commences to cure such default within such ten (10) day period and thereafter continues to use its diligent efforts to complete such cure), then the non-defaulting Party may, in addition to any of its other remedies and in its sole and absolute discretion, terminate this STC effective immediately upon providing written notice of such termination to the defaulting Party. Notice of Default shall specify: (i) the nature of such default; (ii) the particular numbered Section of this STC and/or Proposal setting forth the covenant or agreement purportedly not observed or performed; and (iii) the specific act or acts which the non-defaulting Party contends would, if undertaken, correct such default. Furthermore, either Party may terminate this STC effective immediately upon providing written notice of such termination to the other Party at any time upon the occurrence of any of the following events: (a) the other is adjudicated as bankrupt or files a proposal, voluntary petition, or similar proceeding, or otherwise seeks relief, under or pursuant to any bankruptcy, insolvency, or reorganization act, statute, or proceeding; (b) the other passes a resolution providing for the dissolution, liquidation, or winding up of such party; (c) the other has filed against it any involuntary petition or similar proceeding under any bankruptcy, insolvency, or reorganization act, statute, or proceeding, has instituted against it any involuntary proceeding in any court to declare it insolvent or unable to meet debts, or has a receiver appointed for any of its property, and the same is not dismissed, vacated, set aside, or released within thirty (30) days thereafter; or (d) the other becomes insolvent or unable to meet debts, institutes any voluntary proceeding in any court to declare it insolvent or unable to meet debts, makes an assignment for the benefit of creditors, or consents to the appointment of a receiver for any of its property. Upon any such Termination for Default, all outstanding Proposals subject to any or all of the terms and conditions of this STC shall be terminated simultaneously with this STC. Upon Termination for Default by Company, Customer shall only be responsible to pay for Products and Services created prior to termination and for expenses Customer has agreed in writing to pay.
11.0 Limitations of Liability and Disclaimers.
11.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION NEGLIGENCE AND STRICT LIABILITY) FOR ANY LOST PROFITS OR REVENUE, LOSS OR INTERRUPTION OF USE, LOST OR DAMAGED DATA, OR SIMILAR ECONOMIC LOSS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SIMILAR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS STC, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 Liability Limitation. Company and Company Personnel shall not be liable for any loss incurred by Customer as a result of any Products and Services created and the necessary work performed to create them, or Products and Services not created and work not performed, in good faith in performance of their duties hereunder and shall only be responsible for willful or intentional wrongdoing, provided, further that in no event will Company’s aggregate liability for all claims, damages, or losses under this STC and any Proposals (whether based in contract, tort, or other legal or equitable grounds and including defense and indemnification obligations) exceed the greater of: (a) the amount of compensation paid by Customer to Company under the Proposal giving rise to the claim over the prior twelve (12) month period preceding written notice to Company by Customer of the occurrence of the initial event that gives rise to a claim against Company; or (b) the maximum coverage provided under Company’s insurance required by Section 12 of this STC for those claims which are covered by insurance.
11.3 Disclaimers. Company is not an architectural or engineering firm and shall not render opinions on structural components and design, provide conceptual drawings of the Surveyed Property(ies), or provide a gross leasable square footage. The lease lines drawn in any space profiles or surveys, as may be defined in a Proposal provided by Company to Customer may be inexact despite Company’s efforts to strive for maximum accuracy because Company relies on the information provided to it by Customer. Further, inexact measurements may be attributed to inherent challenges, foreseen and unforeseen, to obtaining accurate and proper dimensions for square footage. Accordingly, Customer acknowledges and agrees that inexact measurements shall not be attributed to any fault of Company.
11.4 Force Majeure. Neither Party shall be liable for any failure or delay in the performance of its obligations under this STC or any Proposal to the extent such failure or delay is caused by factors beyond the reasonable control of that Party, including but not limited to, acts of nature, acts of outside third-parties, strikes, lockouts, acts of war, terrorism, civil riots or rebellions, quarantines, embargoes and other similar unusual governmental action, epidemics, governmental regulations imposed after the fact, fire, earthquakes, floods, hurricanes, tropical storms or other natural disasters or extraordinary elements of nature.
12.0 Liability and Insurance.
12.1 Company shall indemnify, defend, and hold Customer and its Affiliates harmless from and against any and all damages arising out of any injury (including death) to persons, including, but not limited to, Company Personnel, and/or damage to property, to the extent caused by the negligent actions or omissions or willful misconduct of Company or Company Personnel.
12.2 Customer shall indemnify, defend, and hold Company and its Affiliates harmless from and against any and all damages arising out of any injury (including death) to persons, including, but not limited to, Customer Personnel, and/or damage to property, to the extent caused by the negligent actions or omissions or willful misconduct of Customer or Customer Personnel.
12.3 Company shall procure and maintain, as a minimum the following insurance coverages: (a) Workers’ Compensation Limits – as required by state law; (b) Comprehensive General Liability Limits – $1,000,000 per occurrence combined single limit personal injury and property damage; (c) Comprehensive Automobile Liability (Owned, Hired, and Non-owned)Limits – $1,000,000 per occurrence combined single limit personal injury and property damage; and (d) Professional Errors and Omissions Limits – $1,000,000 per occurrence.
13.0 Applicable Law and Venue.
This STC and all Proposals shall be governed in its construction, interpretation, and performance by the laws of the State of Florida, without reference to law pertaining to conflict of laws. In the event of any litigation arising out of or relating to this STC or any Proposal, venue shall be in Hillsborough County, Florida, and the prevailing Party shall be entitled to recover all costs and reasonable attorneys’ fees incurred, including, without limitation, costs and fees incurred in any investigations, arbitration, trials, bankruptcies, and appeals. This STC and all Proposals is further governed by the Dispute Resolution terms of Section 7 herein.
Any notice or communication required or permitted under this STC or any Proposal shall be sufficiently given if delivered in person, by certified mail with return receipt requested, to the address set forth within the Proposal or to such other address as one Party may have furnished to the other in writing, or by email with confirmation of email receipt. Notice by certified mail shall be deemed delivered upon dispatch, if properly addressed, with proper postage paid. Notice by email shall be deemed delivered upon dispatch, with confirmation of receipt, when properly addressed to the email address as set forth in the Proposal.
15.0 Work Product and Intellectual Property.
All Products and Services provided by Company shall be considered the Work Product of Company and all intellectual property rights associated with such Work Product shall remain exclusively with Company unless otherwise agreed to by the Parties in a Proposal. The Parties agree that the obligations contained in this Section will survive termination or expiration of this Agreement.
No failure or delay on the part of either Party in exercising any right or remedy with respect to a breach of this STC or any Proposal by the other Party shall operate as a waiver thereof or of any prior or subsequent breach of this STC or any Proposal by the breaching Party, nor shall the exercise of any such right or remedy preclude any other or future exercise thereof or exercise of any other right or remedy in connection with this STC or any Proposal. Any waiver must be in writing and signed by the waiving Party.
If any Section, Sub-section, or provision or the application of such Section, Sub-section, or provision of this STC or any Proposal is held invalid, illegal, or unenforceable, the remainder of this STC or any Proposal and the obligation of such Section, Sub-section, or provision to persons or circumstances other than those to which it is held invalid, illegal, or unenforceable shall not be affected by such invalidity, illegality, or unenforceability.
This STC and any executed Proposals may be assigned by either Party upon written notice to the other Party. If assigned by Customer, Customer shall remain obligated for payment of the already executed Proposals, if the assignee does not pay Company.
This STC and any Proposals may be executed in any number of counterparts and by facsimile or other electronic transmission, each of which shall be deemed to be an original instrument, but all such counterparts together shall constitute one and the same instrument.
20.0 Binding Effect.
This STC and any Proposals shall be binding upon and inure to the benefit of the Parties and their respective legal representatives, successors, and permitted assigns.
21.0 Independent Contractor.
Neither Company nor any Company Personnel shall be deemed by this STC or any Proposal to be an agent or employee of Customer. Company’s services as provided by it and/or Company’s Personnel shall be those of an independent contractor. It is further understood that nothing in this STC or any Proposal shall be construed to create a joint venture, partnership, association or other obligation or like relationship between the Parties.
All rights and obligations of the Parties under this Agreement that, by their nature, do not terminate with the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.
23.0 Entire Agreement.
This STC and any Proposal referencing this STC, and any executed amendments thereto, constitute the entire agreement between the Parties relating to the subject matter hereof. All prior understandings and agreements between the Parties relating to the subject matter hereof are merged in this STC, which alone and completely expresses their understanding.
MSA last revised 07-27-2019