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Memorandum of Understanding Terms and Conditions

These terms and conditions apply to the Memorandum of Understanding (the “MOU”) between You (either as an individual or entity, hereinafter, “Other Party”) and ClerSale LLC (“ClearSale”).

1.               Term

This MOU shall be in effect for the period described on the signed MOU as of the signing date (“Term”), notwithstanding the confidentiality obligations that shall survive this MOU pursuant to the terms agreed to in Clause 3 herein.

The Parties agree to meet at least one month prior to the expiration of this MOU to decide whether to terminate or extend this MOU, or to take any other steps deemed appropriate by the Parties in the furtherance of their business relationship relating to the Project or any other project or enterprise decided by the Parties.  In any of the foregoing cases, the Parties agree that their decision shall be documented in writing.

2.               Execution of the project

Each Party shall contribute reasonable human resources to the Project in order to perform the roles and carry out the activities described in Clause 3 of the MOU and pursuant to the Expense Distribution arrangement agreed to in Clause 5.

3.               Confidentiality

The Parties’ confidentiality obligations arising from this MOU, the activities undertaken by virtue of the same, and the information that each Party shares shall be governed by the Confidentiality Agreement signed by the Parties on the Signature Date, which shall be understood as full operative and an integral part of this MOU for all legal purposes. In the event that the effective term of the Confidentiality Agreement is or has been terminated, the Parties hereto agree that its terms and conditions shall remain in effect for purposes of this MOU for up to three (3) years following the termination of this MOU.

Any information labeled as privileged, proprietary, or confidential by either Party shall for purposes of this MOU be deemed confidential information (“Confidential Information”).  This Confidential Information, as used in any such Confidential Agreement and in relation to this MOU, shall include any knowledge, data, or information regarding any corporate, financial, technological, or administrative aspects of both Parties, such as their respective products, systems, techniques, strategies, methods of operation, or any other instrument, equipment, or property, whether tangible or intangible, owned by one Party and disclosed to the other in accordance with this MOU.  

The following shall not be considered confidential information: (i) Information that was fully or partially within the public domain when disclosed, or that becomes part of the public domain after being disclosed under this MOU; (ii) Information that was already known to the other Party at the time of disclosure; (iii) Information the disclosure of which is ordered by a judicial or administrative court. 

The Confidential Information shared between the Parties shall only be used for the performance or furtherance of the Project and not for any other purpose, nor shall it be disclosed to third parties or employees not directly involved in the Project or who are not on a need-to-know basis without the prior written authorization of the Owner Party of the Confidential Information.  The terms of this MOU also constitute confidential information, and neither Party may reveal the existence or subject matter of this MOU to any third party without the express written consent of the other Party.

4.               Personal data

Any sharing of, access to, or transfer of personal information involving the other Party’s customers, clients, affiliates, subsidiaries, or any other natural or legal person stored or otherwise possessed by the other Party shall be done in compliance with all applicable laws and regulations relating to the processing of personal data and privacy protection, specifically, the General Data Protection Regulation and the California Consumer Protection Act.

5.               Intellectual property

Each Party shall remain the sole owner (the “Owner Party”) of any and all intellectual property to which the other Party has access under this MOU.  Upon the termination of this MOU, all intellectual property in physical or electronic format in the possession of the other Party shall be returned to the Owner Party, unless the Owner Party expressly orders in writing that such intellectual property be destroyed.

The Parties expressly agree that any permitted use of a Party’s intellectual property by the other Party shall in no way be construed as conferring, expressly or implicitly, any right (by license or otherwise) to such intellectual property other than those rights granted in relating to the Project and solely within the scope outlined in the respective agreement, if any, pertaining to such use.

6.               Early termination

This MOU may be terminated early in any of the following cases:

  1. Mutual Consent. The Parties may consent in writing to terminate this MOU at any time, upon written notice from one Party to the other, at least fifteen (15) days in advance of the expected termination date.  Unless a different date is expressly stipulated, it shall be understood that the MOU will terminate on the date the written termination agreement is signed by both parties.
  2. Breach. In the event of a significant breach, the Nonbreaching Party may elect to terminate this MOU early, unless said breach has been cured within thirty (30) days as of the date upon which said breach was notified in writing to the other Party. If such breach has not been cured within the foregoing timeframe, and the Nonbreaching Party elects to terminate this MOU, it shall be understood as terminated by operation of law as of the date the breach occurred without the need of any prior court ruling or other formality. In addition, the Nonbreaching Party shall be entitled to the reimbursement of any and all reasonable damages incurred by such breach. 

For purposes of this MOU, a “significant breach” shall mean any failure in the performance of the Breaching Party’s role or responsibilities that has a  material adverse effect on the Project or the operation thereof, or that prevents or impedes the Nonbreaching Party from preforming its responsibilities or carrying out its role effectively.  A “significant breach” shall also be understood as an obligation the performance of which is incomplete, delayed, deferred, or in violation to the stipulations agreed to in this MOU.

  • Other Causes. ClearSale and the Other Party shall also be entitled to terminate this MOU without the need of any prior court ruling and without any compensation owed to the other Party (the “Party at Fault”), should any of the following events occur:
  1. If the Party at Fault is dissolved, declares bankruptcy, or becomes insolvent.
  2. If it is discovered that the Party at Fault misrepresented any material fact regarding its technical, financial or human resources upon which the other Party relied when entering into this MOU.
  3. If it is discovered that the Party at Fault demonstrates a lack of technical, operational, or administrative ability to perform the Project or if said Party does not allocate sufficient technical, financial, or human resources in the amount or quality necessary to realize the Project.
  4. If the Party at Fault fails to protect the confidential nature of the information it receives, pursuant to the Confidentiality Agreement previously executed by the Parties, if applicable.
  5. If the Parties are unable to resolve any dispute subject to mediation pursuant to Clause 9

Once this MOU has been terminated, and unless instructed otherwise by the Owner Party, the Parties shall return to the Owner Party all proprietary information, documentation, and all other papers, files, etc., received from the Owner Party in both tangible and intangible form throughout the term of this MOU and in relation to the execution of the Project or this MOU.

7.               Liability

Assumption of risk and release by ClearSale. To the extent permitted by law, ClearSale shall assume, for the matters covered by this MOU, all risk of claims, losses, damages or injury suffered by persons or property that may be caused by the acts or omissions of ClearSale or its agents, officers, directors, executives, employees, or independent contractors (“ClearSale Parties”), excluding claims, losses, damages or injury caused by the Other Party or its agents, officers, directors, executives, employees, or independent contractors (“the Other Party Parties”). The Other Party and the Other Party Parties shall not be liable for and are hereby released from any responsibility arising from any claims, losses, damages or injury caused by the acts or omissions of ClearSale, the ClearSale Parties, or any persons claiming through or under ClearSale.

Assumption of risk and release by the Other Party.  The Other Party likewise shall assume, for the matters covered by this MOU, all risk of claims, losses, damages or injury suffered by persons or property that may be caused by the acts or omissions of the Other Party or the Other Party Parties, excluding claims, losses, damages or injury caused by ClearSale or the ClearSale Parties.  ClearSale and the ClearSale Parties shall not be liable for and are hereby released from any responsibility for any claims, losses, damages or injury caused by the act or omission of the Other Party, the Other Party Parties, or any persons claiming through or under ClearSale.

8.               Force majeure

Neither Party shall not be held liable if such Party is prevented from fully or partially performing any of its responsibilities under this MOU due to an overwhelming, unforeseeable, and external event that constitutes an act of Force Majeure (“Force Majeure Event”), despite the exercise of diligent efforts.  For purposes of this MOU, a Force Majeure Event shall include, but is not limited to war, rebellion, earthquake, fire, accident, strike, riot, civil commotion, act of God, or any other event that is reasonably unforeseeable or outside the control of said Party.  A Force Majeure Event shall not excuse such Party from the performance of its obligations or responsibilities under this MOU, but shall merely suspend such performance during the Force Majeure Event.  The Party subject to a Force Majeure Event shall promptly notify the other Party of the occurrence and particulars of such Force Majeure Event and shall provide the other Party, from time to time, with its best estimate of the duration of such Force Majeure Event and with notice when such Force Majeure Event has concluded.  The Party so affected shall use diligent efforts to avoid or remove such causes of non-performance as soon as is reasonably practicable. Upon the conclusion of the Force Majeure Event, the performance of any suspended obligation or responsibility shall without delay recommence.  The Party subject to the Force Majeure Event shall not be liable to the other Party for any damages arising out of or relating to the suspension or termination of any of its obligations or responsibilities under this MOU by reason of the occurrence of a Force Majeure Event, provided such Party complies in all material respects with its obligations and responsibilities under this MOU.

9.               Applicable laws and dispute resolution

In the event that a dispute arises between the Parties throughout the Term of this MOU that has not been effectively negotiated and remedied within fifteen (15) days from the date either Party notified the other Party in writing of the existence of said dispute, the dispute shall then be submitted to mediation, which shall be carried out in accordance with the following process:

The initiating Party shall serve a “Notice of Mediation” upon the other Party, signifying that the dispute had not been settled successfully and to institute the mediation process.

The Parties shall agree on a mediator; however, if they cannot agree within fourteen (14) calendar days, then JAMS (formerly known as Judicial Arbitration and Mediation Services), or any other private mediation service agreed to by the parties, shall appoint a mediator.

The mediation session shall be held within fifteen (15) calendar days of the retention of the mediator and must last for at least one full mediation day before any Party has the option to withdraw from the process. The Parties may then agree to continue the mediation process beyond the first day and until the Parties reach a settlement or one Party (or the mediator) declares in writing that there is no reason to continue because of an impasse that cannot be overcome.  In this case, the mediator will issue a “Notice of Termination of Mediation” to both Parties, which will outline the reasons for the impasse.   For purposes of this Clause, a “mediation day” is understood as eight (8) full hours of active mediation time.

All reasonable efforts will be made to complete the mediation process within seven (7) calendar days of the first mediation session.  However, if the dispute in question has not been resolved by the end of this seven-day timeframe, it may be extended for another seven (7) calendar days.  If no settlement or resolution has been reached, then this MOU shall be terminated without any liability to the Parties or any prior court ruling.

All processes and procedures relating to the mediation shall be governed by the JAMS, AAA (American Arbitration Association), CPR (Conflict Prevention and Resolution) Rules, or any other rules or regulations governing alternative-dispute resolution to which the Parties agree.

The service of the Notice of Mediation shall stay the running of any applicable statute of limitations regarding the dispute until thirty (30) days after the mediation has concluded or the mediator issues a Notice of Termination of Mediation.  Each side shall bear an equal share of the mediation costs unless the Parties agree otherwise.

All communications, both written and oral, during mediation are confidential and shall be treated as settlement negotiations for purposes of applicable rules of evidence; however, documents generated in the ordinary course of business prior to the dispute, that would otherwise be discoverable, do not become confidential simply because they are used in the mediation process.

10.            General provisions

  1. No amendment to the terms and conditions of this MOU shall be valid unless agreed to in writing and signed by both Parties.
  2. No provision of this MOU shall be construed as the formation of a joint venture, partnership, or any other type of business or commercial relationship. Furthermore, this MOU shall not be understood in a way that requires or compels the Parties hereto to execute any future agreement or close any business transaction.  All potential business relationships, contracts, or transactions shall be subject to a specific agreement that will be negotiated and agreed to by the Parties.
  3. This MOU is non-restrictive, and therefore each Party is free to execute similar MOUs with other public or private companies, agencies, organizations, or individuals relating to the same or similar subject matter under this MOU.
  4. This MOU represents the entire understanding between the Parties with regard to the Project and replaces any other prior written or oral understanding between the Parties relating to said Project.

11.            Governing law

This Memorandum shall be construed in accordance with the laws of the State of Florida.