MANAGED BROADBAND SOLUTIONS, LLC

 

 

 

Consulting Agreement

 

THIS AGREEMENT (the “Agreement”), is entered into by and between:

 

Managed Broadband Solutions, LLC, (“MBS”), a Florida Limited Liability Company, organized under the laws of the State of Florida, located at 5901 Camino Del Sol, Suite 400, Boca Raton, FL 33433, (hereby referred to as the “Consultants” and the “Company”), and;

 

Client, together with each and every one of the their present or former predecessors, successors, parents, subsidiaries, affiliates, divisions, directors, officers, employees and agents, (hereby referred to as the “Client”);

 

Each individually referred to as a “Party” and collectively the “Parties”;

 

WHEREAS, the Client desires to hire MBS to render Services as defined below.

 

NOW, THEREFORE, in consideration of the covenants, conditions and promises contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties to this Agreement agree as follows:

 

Services

 

The Consultants agree that they shall render services to the Client on matters pertaining to the Scope of Work (the “Services”). The Scope of Work is defined and outlined in the attached Exhibit A of this Agreement.

 

Compensation and Payment

 

The Consultant will charge the Client a fee (the “Compensation”), pursuant to Exhibit B of this Agreement.

 

Term of Agreement

 

This Agreement will be in effect for a period of twelve (12) months and shall renew automatically for an additional twelve (12) months upon the same terms and conditions, unless the Client provides written notice by email or registered or certified mail posted not more than 30 days prior to the expiration of this Agreement or any renewal thereafter.

 

Termination of Agreement

 

Either Party may suspend performance immediately upon becoming aware of a breach of the terms of this Agreement by the other Party and provide written notice of its intention to terminate. The filing of a voluntary or involuntary bankruptcy petition, appointment of a receiver, assignment for the benefit of creditors or other similar acts of insolvency shall constitute a breach. Termination will become effective fourteen (30) days after receipt of the written notice by the breaching Party unless the event(s) giving rise to the breach are remedied within that time frame, or the Party seeking termination revokes its notice. Client or MBS may immediately terminate this Agreement when it is determined that the work or services being performed is contrary to existing law. If the Agreement is terminated without cause, MBS may recover from Client payment for all services performed to the date of termination in accordance with this Agreement, and any proven loss, cost or expense in connection with the services, including those resulting from the termination.

 

This agreement shall terminate automatically without any further liability on the part of MBS in the event that MBS lacks authority to continue to provide the services to the property due to loss of governmental authorization.  This clause, however, shall not apply to periods of transition, such as franchises subject to review, transfer or reapplication, or where termination is the subject of dispute.  

 

Confidentiality

 

Except as otherwise required by applicable laws, each Party agrees to keep the terms and conditions of the Agreement in strict confidence and shall not divulge any specifics of the same except to any partners and/or others with a need to know or legal right to know (such as residents of homeowners  association) for Client or MBS to reasonably conduct its business.

 

Representations and Warranties

 

Each Party represents and warrants to the other that (i) the person entering into this Agreement on its behalf has the legal right and authority to execute, enter into and bind such Party to the commitments and obligations set forth herein and (ii) it has the right to enter into this Agreement and to grant the rights granted hereunder.  In the event this Agreement is terminated for a breach of these representations and warranties, Client shall reimburse MBS for the time and materials of all work performed at the Property, up to the termination date.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS WARRANT THAT THE SERVICES WILL PROVIDE UNINTERRUPTED USE, OPERATE WITHOUT DELAY OR ERROR, OR BE TRANSMITTED IN UNCORRUPTED FORM.  ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEARBY DISLAMINED AND EXCLUDED UNLESS OTHERWISE PROHIBTED OR RESTRICTED BY APPLICABLE LAW.

 

Neither Party shall be liable for its performance delay or failure due to circumstances beyond its reasonable control, including but not limited to, failure of equipment or facilities not owned or controlled by a Party (for example, utility service), denial of access to facilities or rights-of-way essential to service the property, natural catastrophes, and government order or regulation.

 

Enforceability

 

It is expressly agreed and understood by the Parties hereto that the provisions of this Agreement are not intended to release the Parties from the obligations contained herein and each Party to this Agreement hereby expressly reserves the right to enforce the provisions and obligations of this Agreement.

 

Breach of Contract

 

If either Party (the “Defaulting Party”) breaches any provision of this Agreement, which causes damage to the other Party (the “Non-defaulting Party”), the Non-defaulting Party may notify the Defaulting Party in writing and request it to rectify and correct such breach of contract; if the Defaulting Party fails to take any action satisfactory to the Non-defaulting Party to rectify and correct such breach within fifteen (15) working days upon the issuance of the written notice by the Non-defaulting Party, the Non-defaulting Party may take the actions pursuant to this Agreement or pursue other remedies in accordance with laws.

 

Exclusivity/ Client Obligation

 

Client agrees and covenants that they shall not, until the expiration of this Agreement, engage in any business, enterprise or employment which is directly competitive with MBS.  The Parties acknowledge and agree that, should any Court determine that this non-competition provision is broader than such Court deems enforceable, then the Court shall modify the terms of this non-competition provision to have it applied as widely and extensively as such Court deems enforceable. 

 

MBS and Client acknowledge and agree that the covenant not to compete contained in this paragraph is both fair and reasonable in light of all the facts and circumstances of the relationship between Client and MBS.

 

Subcontractors

 

MBS may hire or engage one or more subcontractors to perform any or all of its obligations under this Agreement; provided that MBS shall in all cases remain responsible for all its obligations under this Agreement.  Under no circumstances shall Client be responsible for making any payments directly to any subcontractor engaged MBS.

 

Assignability

 

Either Party may assign the Agreement provided that the assignee agrees in writing to be bound by all terms and conditions hereof.  In the event Client sells, assigns, transfers or otherwise conveys the property to a third party, Client shall assign this agreement and cause the new controlling party to expressly assume this Agreement and agree to be bound by its terms.  This Agreement shall be binding upon the Parties and their respective successors and assigns.  Following any assignment, the assigning Party shall give prompt notice thereof to the other Party and shall not be liable for obligations under this Agreement that accrue on or after the date of the Assignment.

 

Modification

 

This Agreement may be amended, modified or superseded, and any of the terms, covenants, representations, warranties or conditions hereof may be waived, but only by a written instrument executed by all of the Parties. No failure, in any one or more instances, to enforce or to require strict compliance with any term, condition, covenant, representation or warranty of this Agreement shall be deemed to be a waiver, of any nature, whether past, current or future, of any such term, condition, covenant, representation or warranty or of any breach of such or any other term, condition, covenant, representation or warranty in this Agreement.

 

Invalid Provisions/Severability

 

If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the effective period of this Agreement, such provision shall be fully severable. This Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement.

 

Indemnification

 

Client, for themselves and their heirs, trustees, beneficiaries, administrators, representatives, agents, successors, assigns, and attorneys shall defend, indemnify and hold MBS harmless from liability for all claims, rights, actions, causes of action, obligations, suits and controversies, known or unknown, whether in contract or in tort or under federal, state or local laws, which relate to or arise out of a dispute, and all claims and potential claims stemming from the Agreement. Notwithstanding the generality of the foregoing, this indemnity provision shall include, but is not limited to, any subrogation claim or other claim by any third party.  The Parties expressly agree and understand that MBS will not provide any indemnification to any of the other Parties hereto and Client expressly agrees that they cannot pursue any subrogation claim against any third party related to this Agreement.

 

Limitation of Liability

 

Neither Party shall be liable to the other for any special, incidental, punitive, exemplary or consequential damages, including damages for lost profits, even if a Party has been advised of the possibility of such damages, whether arising under theory of contract, tort, strict liability or otherwise.

 

Entire Agreement

 

This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof.  The Parties understand and acknowledge that the terms of this Agreement are contractual and not mere recitals.  Consequently, they expressly consent that this Agreement shall be given full force and effect according to each and all its expressed terms and provisions, and that it shall be binding upon the respective Parties as well as their heirs, executors, successors, administrators and assigns.

 

Counterparts

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which collectively shall constitute one and the same instrument representing this Agreement between the Parties, and it shall not be necessary for the proof of this Agreement that any Party produce or account for more than one such counterpart. This Agreement may be executed using facsimiles or electric signatures, and such signatures shall be deemed to be the same, and equally enforceable, as an original signature.

 

Neutral Construction

 

This Agreement shall be construed as if all Parties jointly prepared it, and any uncertainty or ambiguity in the Agreement shall not be interpreted against any one Party.

 

Notices

 

All notices and other communications hereunder shall be in writing and shall be deemed given when received, if delivered in person, when receipt is electronically confirmed, if sent by email, on the date the email was sent, if sent by telecopy, or on the day deposited for delivery, if sent by a nationally recognized next-day delivery service (e.g., Federal Express) or on the day mailed, if sent by registered or certified mail (postage prepaid, return receipt requested) to the other Party at the following addresses (or at such other address for a Party as shall be specified by like notice; provided that notices of a change of address shall be effective only upon receipt thereof):

 

If to MBS:                                 By US Regular Mail, FedEx or UPS:

Managed Broadband Solutions, LLC

                                                5901 Camino Del Sol

                                                Suite 400

                                                Boca Raton, Florida 33433

 

                                                If by Email (Preferred Method):

                                                Notices@ManagedBroadbandSolutions.com

 

Binding Nature

 

The provisions of this Agreement shall be binding upon and inure to the benefit of all Parties hereto and their estates, heirs, legal representatives, successors, and assigns. Prior to executing this Agreement, each Party has had the opportunity to consult with legal counsel regarding the meaning, consequences and effects of this Agreement, and each Party represents and warrants that any and all questions which either Party may have had concerning this Agreement have been fully answered.

 

Survival

 

All covenants, agreements, representations and warranties made herein shall survive the execution and delivery hereof and thereof and shall continue in full force and effect until all obligations have been paid in full. All covenants, agreements, representations, and warranties by or on behalf of Client which are contained in this Agreement shall inure to the benefit of MBS, its successors, and assigns.

 

Mediation/Arbitration

 

Any disputes between the Parties hereto, whether arising under this agreement or otherwise, which the parties cannot resolve between themselves using good faith shall be referred to a Court certified mediator of the Circuit Court in the County of the principle office of MBS, and any mediation shall be held in the County of the principle office of MBS. The Parties shall share equally in the cost of said mediation.

 

In the event that said dispute is not resolved in mediation, the Parties shall submit the dispute to a neutral arbitrator residing in the County of the principle office of MBS. The arbitration shall be held in the County of the principle office of MBS. The Parties shall share equally in the cost of said arbitration. Any and all types of relief that would otherwise be available in Court shall be available to both Parties in the arbitration. The decision of the arbitrator shall be final and binding. Arbitration shall be the exclusive legal remedy of the Parties. Judgment upon the award may be entered in any Court of competent jurisdiction pursuant to the Florida Statues Chapter 682, as amended, The Arbitration Code.

 

If either Party refuses to comply with a ruling or decision of the arbitrator and a lawsuit is brought to enforce said ruling or decision, it is agreed that the Party not complying with the ruling or decision of the arbitrator shall pay the Court costs and reasonable attorney’s fees (including Trial and Appellate attorney’s fees) incurred in enforcing the ruling or decision of the arbitrator.    

 

Jurisdiction, Venue and Governing Law

 

This Agreement and any other Documents shall be construed and enforced in accordance with and governed by the laws of the State of Florida, without regard to principles of conflicts of law otherwise applicable to such determination.

 

The Parties agree that any dispute arising out of this Agreement and not resolved at arbitration, will be resolved in the Circuit Court in and for Palm Beach County, Florida, to the exclusion of all other jurisdictions.