7. General Provisions
A) Assignment. Neither party shall assign, transfer, pledge, or encumber any of its rights or delegate any of its duties or obligations under this agreement, without the prior written consent of the other party, which shall not be unreasonably withheld or delayed. For these purposes, a change in control, whether through merger, sale of stock, or otherwise, shall be deemed an assignment. Subject to those limitations, this agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
B) Relationship of the parties. The relationship of the parties established by this agreement is that of independent contractors, and nothing contained in this agreement shall be construed (i) to give either party the power to direct and control the day-to-day activities of the other, (ii) to constitute the parties as partners, joint venturers, co-owners, or participants in any joint or common undertaking, or (iii) to allow either party to act as an agent of the other or otherwise to create or assume any obligation on behalf of the other party.
C) Records. Each party agrees to keep all usual and proper records and books of account relating to any and all transactions and other matters contemplated by this agreement.
D) Waiver. No failure by a party to insist on the strict performance of any covenant, duty, agreement, or condition, or to exercise any right or remedy consequent on a breach or default thereof, shall constitute a waiver of any such breach or default or any other covenant, agreement, term, or condition. No waiver shall be effective unless made in writing and signed by a duly authorized representative of the waiving party.
E) Notices. All notices, authorizations, and requests relating to this agreement shall be deemed given (i) five (5) days after being deposited in the U.S. mail, postage prepaid, certified or registered, return-receipt requested; or (ii) one (1) day after being sent by commercial overnight courier, charges prepaid.
F) Taxes: The fees, costs, and other compensation to be paid by Client to Infuse Media Group pursuant to this agreement are exclusive of all applicable taxes, and Client agrees to pay all applicable federal, state, local, and foreign sales, use, value-added, alternative, add-on minimum, transfer, property, franchise, license, excise, import, export, registration, and other taxes, duties, tariffs, and fees associated with its receipt of the deliverables, and rights hereunder but excluding any taxes on Infuse Media Group’s net income, capital or gross receipts.
G) Non-Solicitation. During the time of performance of the project covered by this agreement, neither party shall solicit, interfere with, or endeavor to entice away any employee of the other party who has been involved in the performance of the project.
H) Independent Developments. Each party will remain free to develop any and all products and Intellectual Property and to work with any third persons as that party in its sole discretion chooses, provided that (i) the party does so independent of the other party’s disclosures and Confidential Information, and (ii) the developing party maintains contemporaneous records that establish the independence of such developments.
I) Construction. The section headings in the agreement are for convenience only and shall not be considered or referred to in interpreting or construing this agreement. This agreement shall be construed as though both parties had drafted it.
J) Compliance with Laws. Each party agrees to comply with all federal, state, local, and foreign statutes, ordinances, regulations, and other laws applicable to the exercise of its rights and the performance of its obligations under this agreement. Without limiting the foregoing sentence, Client acknowledges that any deliverables that Infuse Media Group provides to Client pursuant to this agreement will be subject to United States export controls and agrees strictly to comply with all requirements established by those controls.
K) Remedies. Except as expressly provided in this agreement, no right or remedy herein conferred upon or reserved to a party is exclusive of any other right or remedy, at law or in equity. Nothing in this agreement shall be for the benefit of, or be enforceable by, any third party.
L) Governing Law. The interpretation, construction, validity, and performance of this agreement shall be governed by the laws of the State of Utah, without reference to its conflicts-of-laws rules. The federal and state courts sitting in Salt Lake County, Utah shall have exclusive jurisdiction and venue over any and all disputes arising under or otherwise relating to this agreement, and Client irrevocably consents to the personal jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety and does not apply to this agreement or to any deliverables. In any action or suit instituted under or otherwise relating to this agreement, the party that substantially prevails shall be entitled to recover its costs, expenses, and reasonable attorneys’ fees. The parties hereby agree that neither will request a jury for any dispute arising under or otherwise relating to this agreement.
M) Survival of Terms. The provisions of this agreement that by their nature extend beyond the expiration or termination of this agreement, whether or not expressly stated herein, will survive and remain in effect until all obligations of this agreement are satisfied.
N) Severability. If any provision of this agreement is determined by a court of competent jurisdiction to be void, invalid, unenforceable, or illegal, the provision shall be limited, construed, modified or, if necessary, severed, to the extent necessary to eliminate its violability, invalidity, unenforceability or illegality, and the other provisions of this agreement shall remain unaffected and continue in full force and effect.
O) Entire Agreement. This Agreement together with any Change Orders executed by the parties’ authorized representatives pursuant to this agreement, contains the entire understanding and Agreement of the parties with respect to the subject matter hereof and supersedes all prior communications, representations, or understandings, oral, written, or otherwise. This Agreement may not be modified except by mutual written agreement.