During the term of this Agreement, and for one year following its termination, neither Party will, without prior written consent, directly or indirectly:
(a) take away or solicit for purposes of taking away any employee, contractor, or advisor of either Party or their Affiliates; or
(b) induce any customer, prospect, supplier, or investor of either Party or their Affiliates to discontinue engagement with either Party or their Affiliates.
Public job postings and requests for proposals will not be a breach of this clause.
6. Non-Exclusive Agreement
The Parties acknowledge that WRX may perform services similar to the type it is performing for Client to other Clients during and following the Term of this Agreement. Nothing contained in this Agreement shall be construed to restrict or limit WRX’s ability to enter into agreements with any third party for the performance of services similar to the Services performed by WRX hereunder.
7. Client's Responsibilities
Client agrees to cooperate with and assist WRX in the performance of the Services. Client shall provide WRX with accurate and available information regarding Client and any other available information WRX reasonably requests to be able to perform the Services.
8. Termination of Agreement
This Agreement may be terminated as follows:
(a) at any time by mutual written agreement of the Parties;
(b) at any time by either Party for any reason upon giving thirty (30) days prior written notice to the other Party;
(c) immediately by either Party in the event that the other Party becomes insolvent, files or is forced to file any petition in bankruptcy, or makes an assignment for the benefit of its creditors; or
(d) ten (10) days following a Party’s written notice to the other Party of a material breach of this Agreement by the alleged breaching Party, provided that such breach is not cured within ten (10) days of the notice contemplated under this Subsection 8(d).
9. Confidentiality and Ownership of IP
(a) The Parties acknowledge and agree that each Party may possess certain confidential information relating to their respective businesses that constitute a valuable, special, and unique asset, and that such confidential information may be disclosed by one party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in the performance of this Agreement and associated Scope of Work. As used herein, the term "confidential information" includes all information and materials belonging to, used by, or in the possession of Party relating to its products, processes, services, technology, inventions, patents, ideas, contracts, financial information, developments, business strategies, pricing, current and prospective customers, marketing plans, and trade secrets of every kind and character, but shall not include (i) information that was already within the public domain at the time the information is acquired by the Receiving Party, or (ii) information that subsequently becomes public through no wrongful act or omission of the Receiving Party. The Parties acknowledge and agree that all of the confidential information is and shall continue to be the exclusive property of the Disclosing Party. Without the express written consent of the Disclosing Party, which may be withheld in its sole and absolute discretion, the Receiving Party covenants and agrees: (i) not to disclose any of the confidential information, to any person, entity or third party, other than its employees, contractors, and financial or legal advisors; (ii) not to use the confidential information for any competitive advantage or in business activities or for any purposes other than in connection with the performance of this Agreement and applicable Scope of Work; (iii) to keep in strict confidence the confidential information and to use appropriate and reasonable safeguards to maintain such confidentiality; and (iv) not to use the confidential information for any purpose which may be in any way detrimental to the Disclosing Party. Notwithstanding anything to the contrary herein, except as required by applicable law, rule or regulation or archival processes in the ordinary course of business, within ten (10) business days of the Receiving Party’s receipt of a written request by the Disclosing Party, the Receiving Party shall either (a) return to the Disclosing Party the confidential information, both in hardcopy and electronic form, or (b) destroy the confidential information, each as reasonably directed by the Disclosing Party in writing.
(b) To the extent any inventions, technologies, reports, memoranda, studies, writings, articles, plans, designs, specifications, exhibits, software code, or other materials prepared by WRX in the performance of Services under this Agreement include material subject to copyright protection, such materials have been specially commissioned by Client and they shall be deemed "work for hire" as such term is defined under U.S. copyright law. To the extent any such materials do not qualify as "work for hire" under applicable law, and to the extent they include material subject to copyright, patent, trade secret, or other proprietary rights protection, WRX hereby irrevocably and exclusively assigns to Client, its successors, and assigns, all right, title, and interest in and to all such materials. To the extent any of WRX rights in the same, including without limitation any moral rights, are not subject to assignment hereunder, WRX hereby irrevocably and unconditionally waives all enforcement of such rights. WRX shall execute and deliver such instruments and take such other actions as may be required to carry out and confirm the assignments contemplated by this paragraph and the remainder of this Agreement, at the sole cost and expense of the Client. All documents, electronically stored data, and other tangible materials created by WRX as part of its Services under this Agreement shall be owned by Client. Notwithstanding the foregoing, WRX’s obligations and assignments under this Section are subject to the full and timely payment by the Client in accordance with the applicable Scope of Work.
(c) Notwithstanding the foregoing, the Client acknowledges and agrees, that WRX retains all right, title, and interest to any intellectual property or associated items, developed independently or prior to an applicable Scope of Work, and nothing contained in this Section 9 shall be deemed to limit such rights.
10. Limitation on Liability
EXCEPT FOR A PARTY’S BREACH OF SECTION 9(a) (CONFIDENTIALITY), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR: (A) ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, REVENUE, DATA OR DATA USE, ARISING OUT OF, RESULTING FROM, OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY LIABILITY IN EXCESS OF THE AMOUNT PAID BY CLIENT TO WRX UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEEDING THE FIRST OCCURRENCE GIVING RISE TO SUCH LIABILITY. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT THE AMOUNT STATED HEREIN REFLECTS THE ALLOCATION OF RISKS AND THE LIMITATIONS OF EITHER PARTY’S LIABILITY HEREUNDER. THE FOREGOING LIMITATIONS FORM AN ESSENTIAL BASIS FOR THIS AGREEMENT AND SHALL SURVIVE REGARDLESS OF THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE.
11. Force Majeure
WRX shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of WRX, including, but not limited to, Client’s failure to furnish necessary information, failures or substitutions of equipment or third-party software, sabotage, accidents, acts of God, acts of terrorism or war, U.S. or foreign governmental actions, labor shortages or strikes, communications or utility interruption or failure, fire, flood or epidemic.
12. Notices
(a) WRX Notice to Client. WRX may provide you with notices through our online Service portal or by electronic mail to your e-mail address on record, including the email address designated on the associated Scope of Work. The Client is responsible for ensuring that WRX has current and accurate contact information for the Client.
(b) Client Notice to WRX. Client may provide WRX with notices by certified mail or electronic mail to the address set forth below, which may be updated from time to time by WRX in writing to the Client.
WRX Companies LLC
1413 Rosewood St
Houston, TX 77004
Attention: Wogbe Ofori
Email: wogbe@wrxcompanies.com
13. Modifications to Terms
WRX may revise this Agreement from time to time by posting a modified version of this Agreement, including their effective date, on our website, provided, however, that the Scope of Work shall only apply to the version of this Agreement in effect at the time of execution of such Scope of Works.
14. Amendment; Waiver
Neither this Agreement, a Scope or Work,nor any provision hereof or thereof may be amended, modified, or supplemented unless in writing, executed by all the Parties hereto. Except as otherwise expressly provided herein, no waiver with respect to this Agreement shall be enforceable unless it is in writing and signed by the Party against whom enforcement is sought. Except as otherwise expressly provided herein, no failure to exercise, delay in exercising, or single or partial exercise of any right, power, or remedy by any Party, and no course of dealing between or among any of the Parties, shall constitute a waiver of, or shall preclude any other or further exercise of, any right, power, or remedy.
15. Severability
To the extent any portion of any provision of this Agreement shall be invalid or unenforceable, it shall be considered deleted herefrom and the remainder of such provision and of this Agreement shall be unaffected and shall continue in full force and effect.
16. Counterparts
Any Scope of Work that becomes part of this Agreement may be executed (including by electronic signature) in any number of counterparts with the same effect as if all Parties had signed the same document. All such counterparts shall be deemed an original, shall be construed together, and shall constitute one and the same instrument.
17. Representations and Warranties
Each Party represents and warrants that: (a) such Party is a corporation or limited liability company (as applicable) duly organized, validly existing, and in good standing under the laws of the state of its incorporation or formation, and has the full power and authority to enter into and perform its obligations under this Agreement; (b) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder and associated Scope of Work do not and will not violate its organizational documents or any other agreement to which such Party is a party or by which it is otherwise bound; and (c) when executed and delivered by such Party, this Agreement and associated Scope of Work will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with their respective terms.
18. Governing Law and Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to any choice of law rules that may direct the application of the laws of another jurisdiction. Each Party hereby irrevocably consents and agrees that any lawsuit or other proceeding between or among the Parties hereto arising out of or related to this Agreement or a Scope of Work shall be brought and maintained in any federal or state court of competent jurisdiction sitting in Houston, Texas, which courts shall have exclusive jurisdiction over the adjudication of such matters, and agrees to venue in such courts. Each Party further irrevocably submits and consents in advance exclusively to such jurisdiction and venue in any action or suit commenced in any such courts, and hereby waives in all respects any claim or objection which it may have based upon lack of personal jurisdiction, improper venue or forum non conveniens. Each Party agrees that a final judgment in any such action, suit or claim brought in any of the courts referred to above shall be conclusive and binding upon it and may be enforced in any other courts having jurisdiction over it by suit upon such judgment.
19. Assignment
Neither Party may assign the Agreement or delegate any of its rights or obligations hereunder without first obtaining the written consent of the other Party.
20. No Third-Party Beneficiary Rights
This Agreement is not intended nor shall it be construed to provide or create any third-party beneficiary rights or any other rights of any kind in any company, customer, creditor, affiliate, shareholder, manager, member, officer, director, or employee of either Party hereto or any other person or entity who is not a party to this Agreement.
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