Master Service Agreement

Last Revision: January 30, 2023

Overview

This Master Services Agreement (“Agreement”) entered into as of the Effective Date, as defined hereinbelow, is made by and between the Client, as defined in the Client’s SOW, and New North, LLC, a Maryland limited liability company, located at 125 South Carroll Street, Frederick, Maryland 21701, doing business as New North (“Agency”) (Client and Agency may be referred to herein, collectively, as the “Parties” or each a “Party”).

Recitals

WHEREAS, Agency is a highly-skilled, professional, marketing and public relations boutique; 

WHEREAS, Client is a commercial entity wishing to engage Agency to provide marketing and/or public relations-related work to it, as part of its ongoing marketing and branding efforts, pursuant to and subject to the terms and conditions as set forth herein; and

WHEREAS, Agency wishes to work with Client as part of its ongoing marketing and branding efforts, pursuant to and subject to the terms and conditions as set forth hereinbelow.

Agreement

NOW, THEREFORE, in consideration of the covenants, agreements, representations, and warranties set forth herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged and agreed, the Parties do hereby agree as follows:

1. Consulting Services. The Agency shall perform those services for the Client as set forth and detailed in the Client’s Statement of Work provided to the Client in connection herewith (“SOW”) (“Services”).

1.1. The terms of this Agreement apply to any SOW entered into by the Parties and supersede any conflicting terms of any pre-existing SOW and/or Master Services Agreement (“MSA”).

1.2. Agency shall perform all Services in a timely, professional and workmanlike manner. If the Agency engages a subcontractor to perform any of the Services on its behalf, the Agency will manage the performance of such subcontractor(s) and ensure such subcontractor(s)’ compliance with the terms of this Agreement and the applicable SOW.

1.3. Any fees, costs and/or expenses incurred by Agency in connection with the licensing and/or purchase of photographs, images, stylized fonts for use in connection with any Work Product (as hereinafter defined) created on behalf of Client, shall be at Client’s sole cost and expense and shall be incurred and paid by Client in addition to the payment made by Client for the Services, in accord with the payment procedures set forth in Section 4, below. Any and all costs and fees for additional licensed and/or purchased products or services will be reviewed with and approved by Client before Agency licenses or purchases such product or service. Client hereby acknowledges and agrees that its use of any and all such licensed photographs, images, and stylized fonts shall be subject to the terms and conditions of any applicable license agreement in addition to Agency’s SOW and this Agreement.

1.4. Client hereby acknowledges and agrees that Agency’s business hours are from 9:00 a.m. to 6:00 p.m., Eastern Time, Monday through Friday, excluding those holidays recognized by Agency. In the event that Agency performs work for Client during non-business hours at the request of Client, Client shall pay a rate equal to 150% of Agency’s standard rate for such work, which standard rate shall be set forth in the SOW.

2. Term. This Agreement shall commence on the date that the SOW is received by Agency (“Effective Date”) and shall expire upon the remittance of the final payment by the Client upon completion of the Project as described in the SOW.

2.1. Either Party may terminate the SOW, which termination shall also serve to terminate this MSA immediately thereafter, with the exception of the Surviving Obligations, which Surviving Obligation shall survive any termination or expiration of this Agreement, as set forth herein, for any reason or no reason by giving the non-terminating party at least 60 days prior written notice unless the full contract duration is for less than 60 days, in which it can be made immediately. Also, the Parties may immediately terminate this Agreement or any SOW with Cause, for the reasons set forth in Section 2.4., below.

2.2. Upon termination of this Agreement, any outstanding SOWs also will terminate at the same time.

2.3. To terminate this Agreement or an SOW, the terminating Party must send its notice of termination to the non-terminating Party at the address set forth in the SOW, unless expressly set forth herein.

2.4. The terms after the 60-day notice will be set based on the monthly engagement original contract value.

2.5. Either Party may terminate this Agreement immediately, with Cause, for the following reasons:

a. Non-terminating Party becomes insolvent or ceases to do business;

b. Non-terminating Party commits a crime or civil wrong against the terminating Party;

c. Non-terminating Party attempts to assign the SOW without the prior consent of the terminating Party;

d. Non-terminating Party materially breaches a provision or provisions of this Agreement and/or the SOW and fails to resolve said breach within ten (10) days following receipt of notice of such breach from the terminating Party.

2.6. Client hereby acknowledges and agrees that its obligation to pay any and all costs, fees (including, but not limited to, late fees), and/or expenses for the Services and/or licensed and/or purchased photography incurred by it on and before the date of termination or expiration of this Agreement, shall survive any such termination or expiration of this Agreement, as applicable.

3. Liaison. The Parties may, but shall not be obligated to, designate the same or separate contacts at the Client (“Liaison”) for each SOW, with the intent that the Agency communicates with the Liaison as a matter of efficiency.

4. Payment. The Client shall pay the Agency as specified in each SOW for Services performed to the satisfaction of the Agency. To receive payment, the Agency must provide invoices via email to the Client, detailing the types and amount of Services performed during the invoice period and the amount owed for the Agency’s Services. Payment shall be made, in its entirety, to Agency within thirty (30) days following the Agency’s mailing (whether electronic or physical mail) of the applicable invoice. In the event that Client fails to make such payment on or before the thirtieth (30th) day from the date of Agency’s mailing of the invoice, a late fee of five percent (5%) of the amount due and owing shall be incurred by Client (“Late Fee”), and work will stop. If any and all amounts due and owing in addition to such Late Fee are not paid in a timely fashion on or before the payment date of the next billing cycle an additional Late Fee shall be incurred, which shall apply to the total amount due plus the Late Fee, and so on. In the event either party terminates this Agreement or any SOW, Client’s obligation to pay Agency for any and all Services performed, as set forth in the SOW, prior to such termination or expiration, as applicable, of the SOW shall survive such termination or expiration, and such obligation shall not be setoff, mitigated, waived or forgiven by Agency, unless otherwise agreed to, in writing, by Agency.

5. Deposit. The Client shall deliver, prior to the commencement of the Agency’s performance of the Services a deposit in an amount, more fully set forth in the agreement as (“Deposit”). Client shall deliver such Deposit in immediately available funds (U.S. currency) to Agency. In the event that Client terminates the SOW and by virtue of such termination, this MSA, prior to the conclusion of the Project without Cause, as more fully set forth herein, then Agency may, in its sole discretion, retain the Deposit, in addition to any and all other remedies available to Agency at law or in equity, with the Parties hereby acknowledging and agreeing that such Deposit shall be retained as liquidated damages, hereunder, and such provision does not amount to a penalty or forfeiture provision. The Parties acknowledge and agree that if Client terminates this Agreement without Cause prior to the conclusion of the Project or defaults under this Agreement in any other manner, that Agency will suffer damages in an amount which cannot be ascertained with reasonable certainty and that the Deposit to be retained by Agency most closely approximates the amount necessary to compensate Agency in the event of such early termination or default.

6. Expenses. Client’s reimbursement of expenses incurred by Agency is contingent upon the Client’s prior written authorization for the expense and the Agency providing the Client with a written request for reimbursement supported by receipts.

7. Agency Client Communication. The Parties hereby mutually acknowledge and agree that ongoing, consistent, and responsive communication during the Agency’s execution of the Project is crucial to the successful completion of the Project. The Parties further acknowledge and agree that any lag in communication, especially those communications from Agency to Client requesting information and/or approval of Work Product, during the performance of the Project, can result in increased expense and burden on the part of the Agency, due to the Agency having to devote additional resources and time to the Project to accelerate its work thereon, thereafter to ensure timely completion of the Project. Accordingly, Client hereby covenants and agrees that in the event that Agency has made at least three (3) consecutive attempts to communicate with it, using commercially reasonable means (i.e. telephone, mail, electronic mail or messaging, or a digital video service, such as Zoom), and Client fails to respond to all of Agency’s consecutive attempts to communicate, which causes undue delay in Agency’s prompt completion of the Services, as determined by Agency, Client shall reimburse Agency for any and all fees, costs and/or expenses, which Agency incurs as a result of the recommencement of the Project and the Services (“Recommencement Fees”). If Recommencement Fees are incurred by Client, Agency shall submit an itemized invoice to the Client for the Recommencement Fees in a timely fashion, after each such Recommencement Fee(s) is incurred. Client shall pay Agency for such Recommencement Fees in accordance with the payment procedures set forth, above. Furthermore, if, for whatever reason, despite Agency’s attempts to communicate with Client, Client fails to respond to all such attempted communications for a period of at least ninety (90) days, Agency may, in its sole discretion, immediately terminate this Agreement (no notice to Client required).

7.1 The timeliness of marketing asset approval is critical to campaign performance. Additionally, deliverables are often dependent on one another, meaning delayed approvals for one deliverable can in some cases, make the execution of the monthly planned work impossible. For these reasons, we will consider deliverables approved one week (5 business days) after the deliverable was sent for approval unless edits are requested or more time is requested.

8. Confidentiality. Unless authorized in writing by the Client, the Agency shall not disclose to a third party, through any medium or in any form, any information or parts thereof provided by the Client in connection with any SOW entered into under this Agreement. The Agency shall take all reasonable steps to ensure that its directors, officers, employees, consultants, contractors and/or vendors with access to such material are aware of this confidentiality obligation. The Agency shall not use any material provided by the Client for any purpose other than to perform the Services specified in the applicable SOW, unless otherwise requested by Client and agreed to by Agency. This obligation of confidentiality shall survive any expiration or termination of this Agreement for a period of not less than one (1) year.

9. Work Product. The final work and materials produced by the Agency under this Agreement and the SOW, whether written or otherwise (“Work Product”), constitutes a “work-made-for-hire,” as defined in 17 U.S.C. § 101. All rights in and to the Work Product, including proprietary knowledge and/or information, trademark, copyright, and patentable subject matter, are the sole property of the Client, unless otherwise expressly set forth herein. Upon request by the Client, the Agency will execute any documents and instruments necessary (within reason and not with an undue burden on Agency) to grant full title and ownership in the Work Product to the Client at no additional expense to the Client.

9.1. The Agency will retain any and all rights in and to any and all of its previously-developed proprietary material and/or information, including, but not limited to, its trademarks, copyrights, and patentable subject matter that the Agency may incorporate into the Work Product.

9.2. To the extent of Agency’s proprietary material and/or information are integrated into the Work Product, Agency hereby grants to Client a perpetual, worldwide, non-exclusive, transferable, sub licensable license to use, reproduce, make derivative works of, publicly display and distribute, market, sell, export and import any such previously-developed material and/or information in connection with the Work Product, but only to the extent that such proprietary material and/or information is integrated (not stand-alone) into the Work Product and only in the form in which it has been integrated into the Work Product. This license shall not include any trade secret and/or confidential material of Agency’s which Agency has informed Client, in writing, is protected as a trade secret and/or confidential information.

9.3. Agency shall not use: (i) any copyrighted, trademarked, patented or proprietary rights, or (ii) any likeness, name, speech or other identifiable personal characteristics of any other person or entity in its preparation of the Work Product, without the prior written approval of Client.

9.4. Within five (5) business days after any request from Client following the termination or expiration, as applicable, of this Agreement or any SOW, the Agency shall deliver to the Client any and all of Client’s materials in its custody or control relating to the preparation of the Work Product.

9.5. To the extent that any Work Product is not deemed to be or does not qualify as a “work-made-for-hire”, any and all rights in and to such Work Product shall be automatically and immediately assigned to Client by Agency, subject to the terms and conditions of this Agreement, without any further action required. However, Agency hereby covenants and agrees to fully cooperate with Client, in such event, to formalize and memorialize such assignment through the written document if Client so desires.

9.6. Client hereby grants to Agency a perpetual, non-revocable, worldwide, non-exclusive, non-transferable, non-sublicensable license, to become effective immediately and automatically upon the creation of the Work Product, without any further action required, to use, publicly display, publicly distribute and reproduce Client’s Work Product, but only for Agency’s internal, marketing and/or promotional purposes. It is the intent of the Parties that Agency shall have the ability to display and distribute copies of the projects that it has successfully completed to other potential clients for marketing, business development, and public relations purposes. Furthermore, Client hereby covenants and agrees to allow Agency, in its sole discretion, to place an indication of website designer at the bottom of each page of Client’s website, which Client shall maintain for a period of not less than three (3) years after completion of the Project by the Agency, which shall in no event be written in a font larger than 12 point type and no smaller than 8 point type and shall be written in a color that aesthetically matches the theme and coloring of the website, in Agency’s discretion (if applicable).

9.7. Agency shall have no obligation to deliver the completed Project or any Work Product to Client until and unless Client has paid Agency in full for all amounts invoiced to Client. In the event of a dispute, Agency shall maintain possession of any and all Work Product and the Project, until such dispute is resolved pursuant to Section 21, below. Possession of the Work Product and Project shall then be determined by the adjudicator as applicable.

9.8. Work Product does not include samples, pre-work, “comprehensives” or any other work created by Agency, which is not intended to be ultimately provided to the Client as final Work Product, either by Client or Agency choice. This work shall be referred to as “Pre-Work”. Any and all rights in and to the Pre-Work shall be held and shall remain with the Agency. Any and all Pre-Work may be used and held by the Client, but only for purposes of review and selection and shall be returned to Agency on or before the date of Client’s final approval of Work Product or upon the early termination of this Agreement, whichever comes first.

9.9. The process in which work product is created may, in some cases, utilize artificial intelligence (AI) for purposes such as analysis, rapid ideation, optimization, personalization, pre-work development, and more. Any AI-generated assets, however, are never used as final work product.

10. Client-Supplied Materials. The Parties hereby acknowledge and agree that from time to time Agency may require Client, or Client may desire to contribute materials to the Project for Agency’s use, including, but not limited to, already-purchased stock photography, digital images of its logo, digital videos, source code generated in-house, marketing and/or technical materials (“Client Materials”).To the extent that any such Client Materials are provided to Agency, Client hereby authorizes Agency to use, manipulate, modify, reproduce and create derivative works from such Materials for purposes of including and integrating such Client Materials into the Project. Moreover, Client hereby represents and warrants to Agency that any and all such Client Materials shall have been independently created or that Client has the full legal and unencumbered right in and to such Client Materials. The Client further represents and warrants to Agency that none of the Client Materials are the product of infringement of any third party’s rights or otherwise. Client hereby covenants and agrees to indemnify and hold Agency, its employees, officers, members, consultants, contractors, and vendors harmless in the event that Agency incurs damage, injury, harm, cost and/or expense (including, but not limited to reasonable court costs and attorneys’ fees) as a result of Agency’s use of such Client Materials or which directly or indirectly result from Client’s delivery of same to the Agency.

Furthermore, the Parties hereby acknowledge and agree that it is Client’s sole responsibility when creating its own intellectual property-protected works or having Agency create such works on its behalf, including, but not limited to, trademark-protected works and copyrightable materials, to perform its own due diligence and to take any and all measures necessary to ensure that such any such work(s) do not or will not infringe upon another’s intellectual property rights. Although Client may request that Agency create a certain design, image, or other work on behalf of the Client, the Parties hereby acknowledge and agree that Agency takes no responsibility nor does it accept or assume any liability resulting from the creation of such design, image, or other work, which it was directed to create by Client. Unless otherwise mutually agreed to, in writing, by the Parties, Agency will take no measures to ensure that such Work Product is compliant with the law. Agency fully relies upon Client’s representation and warranty, set forth above, that any and all such Work Product will not the result of an infringement of another’s rights.

11. Work Product Approval. As the Project progresses, Agency will provide Client with regular and ongoing updates on the Project. It may be necessary for Agency to seek and obtain Client approval as the Project progresses per the SOW. If such approval is required, as the Parties mutually agree, Client hereby covenants and agrees to respond to Agency’s request for such approval in a timely fashion, in compliance with the terms and conditions of this Agreement, and shall not unreasonably withhold, condition or delay its approval. The Parties shall agree, at the time of their execution of the SOW, whether any such approvals are necessary. All such communication shall comply with the terms and conditions of Section 7, above. At the time that Client provides Agency with final approval of the Work Product, any and all other modifications, additions, subtractions or other changes requested by the Client to be made to the Work Product shall be changes to be made for a fee, at Agency’s rate for such work, unless Agency determines otherwise.

12. Change Orders. In the event that any changes need to be made in the Project, which deviate from those specifications set forth in the SOW, the Parties shall mutually execute a written change order to initiate such change. No change to the Project shall become effective until a change order in the form attached hereto as Exhibit A, is fully executed by the Parties.

13. Website Hosting and Maintenance (If Applicable). The Parties hereby mutually acknowledge and agree that, unless otherwise agreed and set forth in the SOW, Client is solely responsible for the hosting, maintenance and support of any website created by Agency for it. Agency shall have no responsibility for providing such hosting, maintenance or support, updated versions, patches, plug-ins, Internet access, hardware, software (excluding the Work Product) and/or any security updates, unless otherwise mutually agreed to by the Parties and set forth in the SOW.

14. Indemnification. The Agency shall indemnify and hold the Client, its directors, officers, employees, and agents harmless against all claims, losses, and liabilities, including reasonable attorney’s fees and court costs, resulting from or in any way connected with the Services performed under this Agreement or the SOW, the Client’s use of the Work Product, or the Agency’s breach of this Agreement or the SOW, unless such claim, loss or liability was due to Client’s own negligence or willful misconduct. In addition, the Agency agrees to indemnify the Client, its directors, officers, employees, and agents against any claims of infringement related to Agency’s creation and/or Client’s use of the Work Product, unless due to an infringement caused by materials provided by or created by Client or otherwise due to the acts or omissions of Client.

15. Insurance. At all times during the term of this Agreement, both Parties shall maintain insurance policies in such amounts to satisfy their indemnification obligations hereunder. At all times during the term of this Agreement, Agency shall secure and maintain a general commercial liability insurance policy and may also maintain an errors and omissions policy.

16. Limitation of Liability. THE CUMULATIVE LIABILITY OF AGENCY FOR ALL CLAIMS ARISING FROM OR RELATING TO THE AGREEMENT, THE SOW, THE WORK PRODUCT, THE SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, TO THE EXTENT INCURRED, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID BY CLIENT TO AGENCY PRIOR TO THE DATE UPON WHICH ANY SUCH LIABILITY ARISES HEREUNDER. CLIENT MAY NOT BRING AN ACTION OR SUIT AGAINST AGENCY AFTER THE FIRST ANNIVERSARY DATE FOLLOWING THE DATE UPON WHICH LIABILITY ARISES HEREUNDER.FURTHERMORE, CLIENT HEREBY AGREES THAT AGENCY SHALL NOT INCUR ANY LIABILITY ONCE THE CLIENT HAS PROVIDED FINAL APPROVAL OF THE WORK PRODUCT.IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND, HOWEVER, CAUSED AND WHETHER BASED IN CONTRACT, TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, COSTS OF PROCUREMENT OR SUBSTITUTE TECHNOLOGY, COST OF CAPITAL, LOSS OF GOODWILL, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THE AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE INVALID, VOID, OR UNENFORCEABLE.

AGENCY HEREBY DISCLAIMS ANY AND ALL EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND/OR FITNESS, UNLESS EXPRESSLY REQUIRED BY LAW. FURTHERMORE, TO THE EXTENT THAT CLIENT ELECTS AGENCY TO INCORPORATE INTO THE WORK PRODUCT THIRD PARTY SERVICES, (INCLUDING, BUT NOT LIMITED TO, SERVICES PROVIDED BY AGENCY VENDORS AND/OR SUPPLIES SUCH AS GOOGLE ADWORDS AND/OR PHOTOGRAPHERS) APPLICATIONS, SOFTWARE, THIRD PARTY PRODUCTS, AGENCY SHALL NOT BE LIABLE FOR ANY HARM, DAMAGE, INJURY, SUIT, CLAIM, ACTION, COSTS OR FEES INCURRED BY CLIENT AS A RESULT OF CLIENT’S USE OF ANY SUCH THIRD-PARTY SERVICE, APPLICATION, SOFTWARE OR THIRD PARTY PRODUCT. CLIENT HEREBY ASSUMES ANY AND ALL RISK OF USING SAME, INCLUDING, BUT NOT LIMITED TO, DAMAGES, ACTIONS, SUITS, INJURIES, COSTS AND/OR FEES INCURRED BY CLIENT IN CONNECTION WITH ANY INFRINGEMENT OF INTELLECTUAL PROPERTY OR ALLEGED INFRINGEMENT OF INTELLECTUAL PROPERTY INCURRED IN CONNECTION WITH SAME.

17. Agency’s Representations and Warranties. Agency hereby represents and warrants to Client that:

17.1. All Work Product, other than those materials supplied by Client or a third-party provider, is independently authored and rightfully owned by Agency and is not the subject of infringement of another’s intellectual property rights;

17.2. It has full authority to enter into this Agreement; and

17.3. Any and all Work Product produced by it and delivered to Client in electronic form shall be free of computer viruses.

18. Independent Contractor/Agency. The Agency is performing its Services under this Agreement and the SOW as an independent contractor, and as an independent contractor, the Agency and its employees will not be treated as employees of the Client for any reason, including for compensation, benefits, or tax purposes. The Agency is free to engage in other business activities so long as those activities do not interfere with the Agency’s performance under this Agreement or the SOW. Nothing in this Agreement shall create a partnership, joint venture, or an employer-employee relationship between the Parties and neither Party has the authority to bind the other to any other contract, obligation or agreement.

19. Assignment. Neither Party shall assign this Agreement or any SOW, in whole or in part, to any other party without the prior written consent of the other.

20. Modification; Waiver. No amendment of this Agreement or any SOW will be effective unless it is in writing and signed by both Parties. Any waiver by the Client of a condition or obligation of the Agency under this Agreement or any SOW will not constitute a waiver of the same or any other future condition or obligation of the Agency.

21. Dispute Resolution. The Parties agree to follow the procedures set forth in this section if and when a dispute arises under this Agreement. (a) Either Party shall, by written notice to the other, have any such disputes referred first to their respective executive officers or Liaisons for attempted resolution by negotiation within thirty (30) days after such notice is received. 

(b) In the event such designated officers are unable to resolve such dispute, the following procedures shall apply: any Party, may upon written request to any other Party, have the dispute or uncertainty submitted to a mediator for mediation. Within five (5) business days of receiving the written request, the Parties to the dispute or uncertainty (collectively, the “Parties”, each a “Party”) shall agree upon a mediator who is mutually agreeable to both parties. The Parties shall then work with the mediator to resolve the dispute or uncertainty. If, after fifteen (15) business days after receipt of such written request, the Parties are unable to resolve the dispute or uncertainty, or if the Parties are unable to agree upon a mediator within the timeframe specified above, then either Party shall have the right to invoke the provisions of 21.(c) below, upon written demand to the other Party.

(c) In the event the Parties are unable to resolve the dispute or uncertainty after following the Mediation provisions of 21.(b), above, then the Parties shall, within five (5) days of written demand by either Party, attempt to agree on an arbitrator (the “Arbitrator”) to hear the dispute or uncertainty. In the event the Parties are unable to unanimously agree upon an arbitrator to hear the dispute or uncertainty then within ten (10) days of failing to select the Arbitrator each Party shall select an attorney and/or certified public accountant to act as an arbitrator. The two persons so selected shall within ten (10) days following selection of both, together select a third arbitrator to form a three-person “Arbitration Panel”. Following an opportunity on the part of all Parties involved to be heard orally (in the presence of all Parties) on the issues and to submit written memorandum on the issues involved, any and all such disputes or uncertainties shall be finally settled by binding arbitration concluded by the written decision of the Arbitrator or Arbitration Panel. The written decision of the Arbitrator or Arbitration Panel shall be delivered to all Parties within thirty (30) days following final submission by all Parties, and such decision shall be fully and finally binding on all Parties. The Arbitrator or Arbitration Panel shall have the power to determine the rules of evidence and the procedures and time limits that shall be applicable with respect to any issues to be decided. The procedures, time limits, and rules of evidence may likewise specify the consequences for failing to comply with the given procedures or time limits. In the case of any dispute regarding the manner in which to conduct the proceedings, the arbitrators will follow the rules, then in effect, of the American Arbitration Association. In any event, all procedures, time limits, rules of evidence, consequences for failure to comply, and written decisions shall be fully binding on all persons involved and shall be specifically enforceable, if required, in a court of law or equity in the same manner as an award resulting from mandatory arbitration. The decision of the Arbitrator or Arbitration Panel shall be final, and an order or decree of a court of competent jurisdiction (which shall include Circuit Court for Frederick County, Maryland) may be rendered to enforce the award or decision as rendered.

In the event the Arbitrator or an Arbitration Panel member shall be providing services for one or more of the parties to this Agreement; all Parties are herewith directed to waive any and all conflicts of interest dictated by rules of ethics or independence that may affect the ability of such person to act as an arbitrator, as long as such person does not undertake to actively represent any of the above in such arbitration matters. Unless the Arbitrator or the Arbitration Panel shall determine that one or the other of the Parties involved in arbitration should be required to pay part and/or all of the costs thereof, including attorneys’ fees of the prevailing party, the fees and expenses of such arbitration matters shall be paid equally by the Parties.

22. Severability. If any provision of this Agreement or any SOW is unenforceable to any extent, the remainder of this Agreement or that SOW will not be affected by that unenforceability and that provision will remain enforceable to the fullest extent permitted by law.

23.  Force Majeure. If by reason of any occurrence beyond the control of the Parties (“Act of God”), either Party is prevented from performing, in whole or in part, any obligation under this Agreement or any SOW, that Party shall be excused from performance of that obligation.

24. Merger. This Agreement, the SOW and any and all Change Orders made in connection herewith, collectively constitute the entire agreement of the Parties and supersedes all other oral or written agreements relating to the subject matter of this Agreement.

25. Governing Law/Jurisdiction. The laws of Maryland govern all matters, including, but not limited to any and all disputes arising under this Agreement. By signing the SOW, the Client consents to the exclusive jurisdiction of the federal and local courts of the Maryland, with the venue to be located in Frederick County, Maryland to the extent possible.

26. Surviving Obligations. Those provisions of this Agreement that are to survive any termination or expiration of this Agreement shall be referred to, collectively, as the “Surviving Obligations” or each a “Surviving Obligation”.Surviving Obligations shall include, but not be limited to: (i) any and all obligations hereunder which are deemed herein to be a Surviving Obligation or an obligation which is to survive, (ii) any and all provisions of this Agreement which contemplate performance or observance subsequent to any termination or expiration of this Agreement, including, but not limited to the provisions set forth in Sections 4-10, 14, 16, 17, 18, 21, 25, and 26; and (iii) any and all provisions of this Agreement the survival of which is necessary to survive the expiration or termination of this Agreement to the fullest extent necessary to give the Parties the full benefit of the bargain expressed herein.