CIE
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT ("Agreement"), effective as of the 13th day of
May, 2005 ("Effective Date"), is by and between vFinance, Inc., a Florida
corporation ("vFinance"), with offices at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and Center for Innovative Entrepreneurship, Inc., a
Florida not for profit corporation, ("CIE"), with offices at ▇.▇. ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
1. SERVICES AND ATTACHMENTS. vFinance hereby engages CIE for the purposes of
rendering services such as Chief Economist services and research services
(collectively, the "Services"), which services are more fully described in
the work orders that are mutually executed and attached hereto in
consecutive numbered order (the "Attachment(s)"). Duly executed Attachments
may specifically modify the terms of this Agreement solely with respect to
such Attachment, and in the event of a conflict between this Agreement and
any Attachment, the terms of the Attachment shall control.
2. TERM OF AGREEMENT. The term of this Agreement is one (1) year from the
Effective Date, which term shall automatically renew for consecutive
one-year terms, unless either party gives the other party written notice of
termination at least thirty (30) days prior to the end of the then-current
term. Either party may terminate this Agreement or any relevant
Attachment(s) hereunder immediately without penalty upon the other party's
failure to cure a material breach within ten (10) business days after
delivery of written notice thereof.
3. INVOICING AND CREDIT TERMS. Unless otherwise provided in an Attachment, CIE
will invoice vFinance monthly for all Services performed in the preceding
calendar month and payment is due upon receipt of invoice. In the event
that vFinance does not pay an invoice within (15) days after receipt, CIE
may charge interest on the overdue account balance at the rate of 1% per
month.
4. OUT OF POCKET EXPENSES. CIE will invoice vFinance for all reasonable and
necessary expenses (at cost) incurred by CIE's employees and contractors
relating to the performance of Services and such expenses will be included
in invoices submitted by CIE. Provided, however, vFinance shall not be
obligated to pay any such expenses, unless an officer of vFinance has
pre-approved such expenses in writing.
5. CONFIDENTIAL MATTERS. Unless authorized to do so in writing by an officer
of the other party hereto, neither party nor any third party acting on its
behalf, will for any reason at any time use or disclose to any person or
party any confidential information including, without limitation, relating
to the processes, techniques, work practices, customers, prospective
customers, suppliers, vendors, business practices, strategies, marketing,
third party licenses, products, proprietary information or trade secrets of
the other party hereto or affiliated companies, or any other confidential
information given to any of them by any officers, employees or
representatives of the other party. Provided, however, the parties
acknowledge that CIE may be required to use or apply vFinance's
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confidential information in order to properly perform Services for vFinance
under this Agreement. The obligation to keep information confidential will
not extend to: (a) information which is or becomes a matter of public
record through no fault of disclosing party; (b) information which can be
shown to have been legally disclosed to the disclosing party by a third
party without restrictions as to disclosure and (c) information which was
known to the recipient without restriction prior to its disclosure to it by
the disclosing party. Either party may disclose confidential information to
its independent contractors performing services for the other party's
benefit, provided that such independent contractors are bound by a written
non-disclosure agreement protecting such confidential information in a
manner consistent with this Agreement. Confidential information shall
remain the sole property of the disclosing party or its respective
licensor. In the event of a breach or threatened breach of this provision,
the disclosing party shall be entitled to seek preliminary injunctive
relief to prevent the use and disclosure of such confidential information,
in addition to all other remedies available at law and in equity.
6. LIMITATION OF LIABILITY AND DAMAGES. CIE's entire liability to vFinance for
any loss, liability or damage, including attorney's fees, for any claim
arising out of or related to this Agreement, any Attachment or the
Services, regardless of the form of action, will be limited to vFinance's
actual direct out-of-pocket expenses which are reasonably incurred by
vFinance and will not exceed the amount of the fees actually paid to CIE by
vFinance pursuant to the applicable. IN NO EVENT SHALL EITHER PARTY HERETO
BE LIABLE TO THE OTHER PARTY HERETO FOR LOST PROFITS, CONSEQUENTIAL,
SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, HOWSOEVER ARISING OUT OF OR
RELATED TO THIS AGREEMENT REGARDLESS OF THE BASIS OF THE CLAIM.
Notwithstanding, the foregoing limitations of liability shall not apply to
either party's misappropriation or infringement of the other party's
intellectual property rights, breach of Section 5 (Confidential Matters),
amounts payable to third parties pursuant to indemnification obligation
under Section 10 below, or damages caused by the gross negligence or
willful misconduct of such party.
7. INTELLECTUAL PROPERTY OWNERSHIP. In the event any work product (including,
but not limited to, training materials, programs, software, designs,
documentation, inventions, discoveries, ideas and processes) is produced by
CIE in the course of its performing the Services hereunder (the "Work
Product"), it is hereby agreed that such Work Product shall be deemed "work
for hire" and will be owned exclusively by vFinance unless otherwise
mutually agreed in advance in writing. To the extent such works are not
considered work-made-for-hire, CIE hereby assigns to vFinance all right,
title and interest to any and all such works and Intellectual Property
therein. CIE acknowledges that it is not entitled to the payment of
royalties or other forms of compensation for such works. CIE shall assist
vFinance in perfecting, assigning, maintaining and protecting the
intellectual property rights, including, but not limited to, the execution
of all documents reasonably requested by vFinance.
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8. LIMITED WARRANTIES; DISCLAIMERS
a) CIE represents and warrants that it will perform the Services in a
professional and workmanlike manner, in accordance with industry
standards, and in conformance with applicable Attachments.
b) CIE represents and warrants that its execution of this Agreement and
performance hereunder, and under any Attachments executed pursuant to
this Agreement, have been duly authorized and do not and will not
conflict with or constitute a default under any agreement binding upon
it.
c) CIE represents and warrants that CIE, its subcontractors, agents, and
independent contractors shall use reasonable efforts to comply with
all material and applicable laws and regulations.
THE FOREGOING ARE THE EXCLUSIVE WARRANTIES OF CIE REGARDING ITS SERVICES
AND WORK PRODUCT AND CUSTOM SOFTARE, AND VFINANCE MAKES NO OTHER WARRANTIES
OR GUARANTEES TO CUSTOMER, WHETHER EXPRESS OR IMPLIED, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9. TERMINATION OF ENGAGEMENTS/RESOURCES. vFinance may cancel this Agreement or
any Attachment in writing upon thirty (30) business days notice to CIE. In
the event either party breaches this Agreement, or any Attachments, and
fails to cure such breach within ten (10) business days after the
non-breaching party provides notice thereof, the non-breaching party may
immediately terminate this Agreement or otherwise the relevant
Attachment(s) hereto.
10. INDEMNIFICATION. Each of the parties (in such role, the "Indemnitor")
agrees to indemnify, defend and hold harmless the other party and its
affiliates, and its respective shareholders, members, affiliates, officers,
directors, employees, independent contractors, sponsors, agents, advisors,
and their successors and assigns (collectively the "Indemnitees") from and
against any and all claims, demands, suits, actions, liabilities, losses or
final awards, including, but not limited to, costs, judgments, damages,
final awards, and reasonable attorney's fees and expenses, resulting from
any third party's claim made or suit brought against any Indemnitee
resulting from: (i) any material breach by Indemnitor of its obligations,
representations, warranties or covenants hereunder; (ii) any claim of
infringement of intellectual property rights, but excluding any liability
to the extent caused by the act or omission of any of the Indemnitees; or
(iii) the gross negligence or willful misconduct of Indemnitor, its agents,
employees or independent contractors, related to this Agreement. Indemnitor
shall not settle any claim or enter into any judgment with respect to the
subject matter hereof without the prior written approval of Indemnitees,
which consent shall not be unreasonably withheld, or unless the settlement
contains a complete and general release of the Indemnitees.
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11. RELATIONSHIP OF PARTIES. The relationship between CIE and vFinance created
by this Agreement is one of independent contractor and under no
circumstances is any employee or contractor of vFinance to be deemed an
employee of vFinance. CIE will secure and maintain adequate workers'
compensation insurance in accordance with the law of the state(s) wherein
vFinance will perform Services. This Agreement is non-exclusive, and
nothing herein shall be construed to prohibit either party from contracting
with other parties for similar services.
12. WORKING CONDITIONS. When vFinance performs Services and enters upon
vFinance's facilities, vFinance will provide sufficient work space and
related resources and vFinance warrants that it will use reasonable efforts
so that all workplace conditions to which vFinance's employees and
contractors may be exposed will be in compliance with all material laws and
regulations applicable to vFinance.
13. ASSIGNMENT. Neither party may assign this Agreement and any related
Attachment to this Agreement without the prior written consent of the other
party. However, this Agreement and any related Attachment may be assigned
without such consent by either party to the successor in interest to
substantially all of the business and assets of such party or in the event
of a change of control of the beneficial ownership of such party. Written
notice of the assignment must be delivered to the other party prior to the
date of such assignment. This Agreement shall inure to the benefit of and
be binding upon each of the party's successors and assigns.
14. GOVERNING LAW; ATTORNEY'S FEES. In the event that it becomes necessary to
enforce the terms of this Agreement, the validity, construction,
interpretation, and performance of this Agreement shall be governed by and
construed in accordance with the laws of the State of Florida without
regard to the conflicts of law principles thereunder. The parties hereby
irrevocably submit to the exclusive jurisdiction and venue of the federal
and state courts located in and for Palm Beach County and the Southern
District for Florida. The prevailing party in any action to enforce or
interpret this Agreement shall be entitled to recover reasonable costs and
fees in connection therewith, including reasonable attorneys' fees.
15. WAIVER. Waiver by any party of any breach of any provision of this
Agreement shall not be considered as, nor constitute a continuing waiver,
breach or cancellation of, any other breach of any provision of this
Agreement.
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16. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but which together will constitute one and the
same instrument.
17. ENTIRE AGREEMENT. This Agreement and its Attachments supersede all
proposals, negotiations, or discussions heretofore had between the parties
related to the subject matter. This Agreement and each Attachment
constitutes the complete agreement between the parties and may not be
modified or amended without the prior written consent of both parties.
18. SURVIVAL OF TERMS. The applicable terms of Sections 5-8 and 10-18 of this
Agreement shall survive the termination or expiration of this Agreement.
AGREED TO AND ACCEPTED as of the Effective Date first written above:
VFINANCE, INC. CENTER FOR INNOVATIVE
ENTREPRENEURSHIP, INC.
By: By:
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Name: Name:
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Title: Title:
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ATTACHMENT NO. 1
Chief Economist Services
Date: 4/05/05
Scope of Services: Preparation of reports, advisories and economic evaluations.
Term: During the term of the Agreement, unless otherwise terminated earlier in
accordance with the terms and conditions therein.
Fees and Costs: $100/hour or portion thereof.
Special Terms:
AGREED TO AND ACCEPTED as of the date first written above:
VFINANCE, INC. CENTER FOR INNOVATIVE
ENTREPRENEURSHIP, INC.
By: By:
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Name: Name:
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Title: Title:
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