Sales Manual CA 2018

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4.05. Termination of Compensation. If this Agreement is terminated by FF under sections 4.02, 4.03 or 4.04 or Independent Contractor breaches this Agreement or any of the representations or warranties herein, FF shall have no further obligations for payment of any compensation to Independent Contractor under this Agreement. SECTION FIVE – OBLIGATIONS 5.01. Confidential Information. The parties acknowledge that in their performance of their duties hereunder with the other party, either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the FF Services and the know-how, technology, techniques, vendor lists, client lists, or business marketing plans related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party’s Confidential Information; (ii) not use the disclosing party’s Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party’s express prior consent; (iii) disclose the disclosing party’s Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party’s internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained into this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. The receiving party shall promptly notify the disclosing party of any unauthorized disclosure or use of the Confidential Information. The receiving party shall cooperate and assist the disclosing party in preventing or remedying any such unauthorized use or disclosure. 5.02. Indemnification. Each party agrees to indemnify, defend, and hold harmless the other party, its employees, members, directors, managers, officers, or agents from and against any loss, liability damage, penalty or expense (including attorneys’ fees, expert witness fees and cost of defense) they may suffer or incur as a result of (i) any failure by the party or any employee, agent or affiliate or the party to comply with the terms of this Agreement; (ii) any warranty or representation made by the party being false or misleading; (iii) any representation or warranty made by the party or any employee or agent of the party to any third person other than the specifically authorized by this Agreement, (iv) the manner or method in which the party performs its services pursuant to this Agreement, (v) negligence of the party of its subcontractors, employees or agents of any governmental laws, regulations or rules. 5.03. Disclaimer of Warranties. THE FF SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. FF DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO INDEPENDENT CONTRACTOR AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF CLIENTS’ ABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FF OR IT EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF FF’ OBLIGATIONS. 5.04. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR 10
EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE FF SERVICES, WHETHER FORSEEABLE OR UNFORSEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER <strong>CA</strong>USE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER SUCH ASSETS; OR LABOR CLAIMS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 5.05. Taxes. Independent Contractor shall pay, indemnify and hold FF harmless from (i) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty based on Independent Contractor’s income, and (ii) all government permit fees, customs fees and similar fees which FF may incur with respect to this Agreement. Such taxes, fees and duties paid by Independent Contractor shall not be considered a part of, a deduction from, or an offset against, payments due to FF hereunder. 5.06. Independent Contractor represents and warrants FF as follows: (a) Independent Contractor has the full power and authority to execute, deliver and perform this Agreement. This Agreement is valid, binding and enforceable against Independent Contractor in accordance with its terms and no provision requiring Independent Contractor’s performance is in conflict with Independent Contractor’s obligations under any charter or any other agreement (of whatever form or subject) to which Independent Contractor is a part or by which it is bound. (b) If other than a Sole Proprietorship, Independent Contractor is duly organized, authorized and in good standing under the laws of the state of its organization and is duly authorized to do business in all other states in which Independent Contractor’s business makes such authorization necessary or required. (c) Except as otherwise disclosed in writing by Independent Contractor to FF on or before the effectiveness of this Agreement, neither Independent Contractor nor any principal has been subject to any (i) criminal conviction (excluding traffic misdemeanors or other petty offenses); (ii) bankruptcy filings, (iii) Internal Revenue Service’s liens; (iv) federal or state regulatory administrative or enforcement proceedings; or (v) restraining order, decree, injunction or judgment in any proceeding or lawsuit alleging fraud or deceptive practices. 5.07. Audit Rights. FF shall have the right, at its sole cost and expense, to have an independent certified public accountant, conduct during normal business hours and not more frequently than annually, an audit of the appropriate records of Independent Contractor. 5.08. Non-solicitation of Clients. Without FF’s prior written consent (which consent may be withheld in FF sole and absolute discretion), Independent Contractor shall not knowingly cause or permit any of their employees, agents, principals, affiliates, subsidiaries or any other person or entity (i) to solicit or provide services that compete with the FF Services to any Clients that has been accepted by FF; (ii) to solicit or otherwise cause any Clients that has been accepted by FF or its vendors to terminate its participation in any of the FF Services; or (iii) to solicit or market services to any Clients that is already directly or indirectly provided any of the FF Services by FF, whether or not such are provided under the terms of this Agreement. This section shall apply during the term of this Agreement and immediately following termination, cancellation or expiration of this Agreement. Independent Contractor will remain responsible for resulting damages from such prohibited solicitation. 5.09. Non-Solicitation. (a) During the period that this Agreement is in effect and immediately following termination of this Agreement, Independent Contractor shall not directly or indirectly through another entity (i) induce or attempt to induce any employee, or consultant to FF or its 11
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