MASTER SERVICES AGREEMENT

Flying V Group (FVG) has expertise in the provision of certain website creation, development and other consulting services and Client desires to retain FVG as an independent contractor to provide certain development and consulting services for the benefit of Client in accordance with the terms and conditions of this Agreement.

FVG and Client therefore agree as follows:

ARTICLE 1 – PROJECT DEVELOPMENT

1.1. Services and Deliverables.

This Agreement represents the terms and conditions under which FVG shall provide to Client, from time to time, services (“Services”) and deliverables (“Deliverables”) pursuant to one or more Statements of Work in the form of Exhibit A attached hereto, and which shall generally describe the project and scope of work, the deliverables, and such other specifics of the work that the parties may know at the time (the work under each Statement of Work is referred to as a “Project”). The parties shall work together in a joint effort to accomplish the tasks and objectives set forth in the Statement of Work. In the event of any conflict between a term of this Agreement and a term in the Statement of Work, the terms of this Agreement shall control. FVG shall only be responsible for delivering and performing only those Services and Deliverables specifically identified in the Statement of Work. Any modifications or additional Services requested outside of the Statement of Work shall be made pursuant to Section 2.3 of this Agreement.

1.2. Implementation of Workplan.

Exhibit B attached hereto, contains a production package for the development and implementation of the Project (“Workplan”). The Workplan shall include, as applicable: (a) identification of all milestone events for the Project; including any milestones (“Milestones”) (b) a description of the activities to be performed by FVG; and (c) identification of the independent activities that may impact the Milestones. The Milestones and dates referenced in the Workplan are estimates only and are subject to change in FVG’s sole and absolute discretion.

1.3. Specifications.

Specifications shall mean the requirements for the development of the Website or other Deliverables as set forth as part of the relevant Statement of Work.

1.4. Content.

 1.4.1. Client is responsible for generating, organizing, and submitting all content, including all related images, diagrams, files, product information, and other pertinent files in a timely fashion as specified in the Statement of Work.

1.4.2. Client hereby grants to FVG a non-exclusive, royalty-free license to use Client trademarks, trade dress, service marks, digital images and text (collectively, “Client’s IP”) in connection with the Services to be performed by FVG. FVG agrees that it shall not adopt, use, or attempt to register the Client’s IP, except as expressly permitted in Section 8.5 of this Agreement. If the Agreement should be terminated, FVG will no longer be allowed to use these items without the written consent of the Client.

1.4.3. Client acknowledges and agrees that copywriting services are not included in the Services. If Client’s Website requires textual content, Client will provide such content in an electronic format acceptable to FVG for the purpose of creating or designing the web pages.

1.4.4. Client represents to FVG and unconditionally guarantees that any elements of any textual content or Client’s IP furnished to FVG for the inclusion in the Project are owned by Client, or that Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and indemnify FVG and its subcontractors from any claim or suit arising from the use of such elements furnished by Client pursuant to Section 7.1 of this Agreement.

ARTICLE 2 – PROJECT IMPLEMENTATION

2.1. Personnel.

FVG agrees to provide sufficient qualified personnel to perform FVG’s obligations hereunder. In addition, FVG may perform its obligations and exercise its right under this Agreement through subcontractors and agents designated by it in FVG’s sole and absolute discretion. Should FVG choose to engage subcontractors or agents, those subcontractors and agents will be bound by the terms of this Agreement.

2.2. Client Responsibilities.

In connection with FVG’s performance of the Services and the development of the Deliverables, Client shall perform those tasks and fulfill those responsibilities in the applicable Statement of Work or otherwise reasonably requested by FVG from time to time (“Client Responsibilities”). Client acknowledges that it will provide FVG reasonable access to Client’s subject matter resources as part of FVG’s performance of Services and creation of Deliverables. Client understands that FVG’s performance is dependent on Client’s timely and effective performance of Client Responsibilities under this Agreement and each applicable Statement of Work. FVG shall be excused from any failure or delay in performing the Services to the extent caused by Client’s failure to timely fulfill Client Responsibilities. Client shall be responsible for (a) ensuring that the scope of Services and Deliverables meet Client’s requirements; (b) for its compliance with all applicable federal, state and local laws and regulations, (c) assigning a single point of contact for all inquiries during the project, (d) provide clarification for all inquiries raised by FVG within five (5) business days (or within reasonable understanding), (e) carry out testing (system and user acceptance) and provide feedback to FVG, and (f) for obtaining all necessary consents from third parties, including the necessary third party rights to use software, that are required for FVG to use Client information, Client content, or Client software provided by Client to FVG for the performance of the Services under this Agreement or any applicable Statement of Work.

2.3. Change Orders.

2.3.1. In the event Client desires to make any modifications to the Specifications or a Deliverable, Client and FVG shall enter into a Change Order in the form attached as Exhibit C (the “Change Order”). The Change Order shall include: the scope of services to be provided by FVG, the scope of services to be provided by Client, the Deliverable schedule, and the cost and payment schedule for the modifications. All Change Orders shall be effective upon execution by both parties, and shall be attached to and incorporated into this Agreement. In the event of a conflict between the terms of this Agreement and a Change Order, the terms of this Agreement shall govern.

2.3.2. All work done pursuant to a Change Order will be payable at FVG’s service rates as set forth in Section 4.3 of this Agreement.

2.3.3. Client acknowledges and agrees that the time in which FVG is required to perform the Services may need to be extended as a result of a Change Order and that such extension shall not be attributed to FVG and, to the extent of the Project’s Workplan, is impacted by a Change Order, the parties will adjust the Workplan to account for the increased time needed to perform the Services thereunder.

2.4. Delivery and Acceptance of Deliverables.

The procedure for acceptance of any Deliverable shall be as follows:

2.4.1. Client shall have five to seven (5-7) business days to inspect and test each Deliverable identified in the Workplan to determine if it conforms to the Specifications. If Client fails to approve a Deliverable within the time frame above, then such Deliverable shall automatically be deemed approved.

2.4.2. FVG shall rely on Client’s approval as Client’s acceptance of a Deliverable, including, but not limited to, acceptance of its design, layout, color, format, navigation, and functionality. Any modifications to the Deliverable(s) after execution of Client’s approval, or such Deliverable is automatically deemed approved pursuant to Section 2.4.1, will be subject to the Change Order process as set forth in Section 2.3 of this Agreement.

2.4.3. Project Manager. FVG shall appoint a Project Manager for managing the implementation of the Project. The Project Manager shall be responsible for: (i) managing the day-to-day activities under this Agreement; and (ii) assigning and scheduling the appropriate personnel to perform all of the required Services under this Agreement. Client will have the right to approve or deny the selected Project Manager at their discretion.

ARTICLE 3 – REPRESENTATIONS, WARRANTIES AND COVENANTS

3.1. FVG Limited Performance Warranty.

FVG warrants that: (i) FVG will perform the Services in a professional, competent, and workmanlike manner with personnel having the proper skill level and training for the assigned tasks, and in accordance with each Statement of Work, Change Order and this Agreement; (ii) the Deliverables shall comply with the Specifications as specified in the Statement of Work or Change Order; (iii) Deliverables and other software shall at the time of Launch, and for twelve (12) months thereafter, shall perform without material defect or error and be free of viruses and other harmful code; provided such error or material defect is not caused by: (a) those listed in Section 3.4 of this Agreement; (b) modifications made by Client to the Website or software; (c) third party software or hardware; or (d) use of any Deliverable in a manner not intended by the terms of this Agreement, Change Order or any Statement of Work. The term “Launch” means the date of acceptance of the finished project by Client as subject to Article 2 – Project Implementation.

3.2. Support and Maintenance.

Per the terms of this Agreement, Flying V Group will handle basic support and maintenance of the website to ensure uptime and functionality.

3.3. Intellectual Property Warranty.

Client represents and warrants that all content and Client’s IP provided by Client for incorporation by FVG into the Project complies with all applicable federal, state and local laws, rules and regulations, and does not and shall not infringe upon any patent, trademark, trade dress, copyright, trade secret or other intellectual property or proprietary right of any third party, and there is currently no actual or threatened suit against Client by any third party based on an alleged violation of such right. This warranty shall survive the expiration or termination of this Agreement.

3.4. Client Modifications; No Liability.

In no event shall FVG be liable to Client or any third party for malfunctions that arise from or relate to: (i) changes of the domain DNS; (ii) changes of the hosting company; (iii) mail servers; (iv) black listed server IPs; (v) web servers; (vi) an expired hosting package; (vii) administrator usage; (viii) hacking; (ix) a database disconnect; (x) a DB server disconnect; (xi) spam; (xii) software upgrades; (xiii) hardware upgrades; (xiv) 3^rd party API (Application Programming Interface) upgrades; (xv) user error or misuse; (xvi) the negligence or willful misconduct of the Client; (xvii) modifications made by provider other than FVG to the Website; (xviii) failures caused by third party hardware or software (including Client’s own systems); or (xix) failure to adhere to or pay third party license pursuant to Section 6.6 herein.

3.5. Warranty of Authority.

Each party represents and warrants to the other that it has the right to enter into this Agreement and to perform hereunder. Each party further represents and warrants that there are no outstanding assignments, licenses, obligations or agreements (whether written, oral or implied) that are inconsistent with this Agreement. This warranty shall survive the expiration or termination of this Agreement.

3.6. Non-Disparagement.

Client shall not, in any communications with the press or other media or the general public, any customer client or supplier of FVG, or any of FVG’s affiliates, criticize, ridicule, or make any statement which disparages or is derogatory of FVG or its affiliates or any of their respective directors, contractors, subcontractors, employees, or officers.

In return, FVG shall not, in any communications with the press or other media or the general public, any customer client or supplier of Client, or any of Client’s affiliates, criticize, ridicule, or make any statement which disparages or is derogatory of Client or its affiliates or any of their respective directors, contractors, subcontractors, employees, or officers.

3.7. Warranty Disclaimer.

EXCEPT AS PROVIDED FOR IN THIS AGREEMENTS, THE PROJECT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND FVG SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE DELIVERABLES OR SERVICES FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, QUIET ENJOYMENT, OR NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR COURSE OF PERFORMANCE. THIS ONLY APPLIES TO FVG WORK MADE FOR HIRE AND FVG IS NOT RESPONSIBLE FOR ANY THIRD-PARTY APPLICATION (API) OR CONTENTS PROVIDED BY CLIENT TO FVG FOR THE PURPOSE OF BUILDING THE WEBSITE FUNCTIONALITY.

3.8. Third Party Disclaimer.

FVG MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT, OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.

ARTICLE 4 – PRICE AND PAYMENTS

4.1. Time and Method of Payment.

The fees, payment schedule and manner of payment agreed to by the parties shall be set forth in each signed Statement of Work or Change Order. FVG shall invoice Client consistent with the payment schedule contained in the applicable Statement of Work or Change Order. Client shall promptly pay all amounts due to FVG. For other services not set forth in a Statement of Work or Change Order for which FVG invoices Client, Client will pay within fifteen (15) business days of receipt of invoice.

4.2. Late Payment.

In the event Client is more than fifteen (15) days late on paying an invoice, FVG may cease all work until such time Client’s account is no longer delinquent, if payment is not made within 5 days after receiving a written notice from FVG. If FVG has ceased working on the Project due to a delinquent account, Client shall pay a restart fee equal to ten percent (10%) of the cost of the entire Project as defined in the relevant Statement of Work in addition to any amounts owed pursuant to this Section 4.2. In addition to the foregoing, all past due amounts shall bear interest at the rate of one and one-half percent (1.5%) per month or the maximum amount permitted by law, whichever is greater.

4.3. Rates.

Any work not covered by the Statement of Work or Change Order shall be provided at the hourly rate set forth in such Statement of Work or Change Order, unless otherwise agreed by the parties.

4.4. Expenses.

Client shall reimburse FVG for the following “out-of-pocket” expenses actually incurred (with no mark-up): reasonable long distance travel costs and other extraordinary expenses incurred by FVG personnel in connection with Services performed at Client’s location or at any other location requested by Client; and any other approved and requested out-of-pocket expenses otherwise agreed upon by the parties in writing. When requested by the Client in writing, Client shall reimburse FVG for the out-of-pocket expenses. FVG will submit supporting documentation for the expense. All expenses not paid directly by the Client shall be paid within ten (10) business days of FVG’s invoice. All expenses need to be preapproved in writing by Client and Client shall review and approve expenses prior to FVG moving forward.

4.5. Taxes.

All amounts described herein are exclusive of all federal, state, municipal or other governmental excise, sales, value-added, and use taxes, excises, withholding obligations and other levies now in force or enacted in the future in the United States and assessed or required to be paid by Client in connection with the payment for Services hereunder, and any interest or penalties levied thereon, and, accordingly, the amount of all payments hereunder is subject to an increase equal to the amount of any governmental tax FVG may be required to collect or pay in the United States in connection with the Services, Deliverables or any other matter related to this Agreement, other than any tax on the net income of FVG or FVG’s property. If FVG seeks to collect any such tax from Client, it shall provide to Client appropriate documentation of the tax and the payment thereof to the appropriate authorities.

4.6. Form of Payment.

All payments made to FVG under this agreement shall be made in United States currency in the form of company check or cashier’s check.

ARTICLE 5 – TERM AND TERMINATION

5.1. Term of Agreement.

Unless otherwise terminated as provided herein, this Agreement shall remain in effect until FVG substantially completes all Services required of it under this Agreement. Notwithstanding the foregoing, any terms of this Agreement or a Statement of Work that would, by their nature (including without limitation, the payment obligations of Client), survive the expiration or termination of this Agreement shall so survive.

5.2. Termination for Cause.

5.2.1. Except if prohibited by applicable law, each party shall have the right to terminate the Agreement of any Statement of Work with 30 days written notice AFTER six (6) months of engagement for: (a) material breach by the other party if, after the non-breaching party provides the breaching party with written notice specifying such breach, the breaching party fails to cure such breach within thirty (30) calendar days following receipt of such written notice of breach; or (b) the institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings by or against the other party under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of the United States or any state thereof. If the breach cannot be cured, the right to terminate the Agreement will be immediate.

5.2.2. Rights and Remedies Upon Termination for Cause. Upon termination of this Agreement for cause by or with respect to a party, the terminating party shall be entitled to exercise any right or remedy available to such party under this Agreement, at law or in equity, subject to Section 5.3.

5.3 Limitation of Liability

5.3.1. Limitation on Types of Recoverable Damages. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, CONSEQUENTIAL, INCIDENTAL, INDRIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER THE CLAIM GIVING RISE TO SUCH DAMAGES IS BASED UPON BREACH OF CONTRACT OR NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. CLIENT SHALL ASSUME SOLE RESPONSIBILITY FOR THE OVERALL EFFECTIVENESS AND EFFICIENCY OF THE OPERATING ENVIRONMENT IN WHICH THE DELIVERABLES ARE TO FUNCTION.

5.3.2 Cap on Damages. EXCEPT AS OTHERWISE PROVIDED HEREIN, EACH PARTY’S LIABILITY TO THE OTHER FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE AMOUNT OF ALL MONIES PAID OR TO BE PAID TO FVG UNDER THIS AGREEMENT.

ARTICLE 6 – PROPRIETARY RIGHTS AND CONFIDENTIALITY

6.1. Definitions for the purposes of this Agreement, the following terms shall have the meanings set forth herein:

 6.1.1. “Client Work Product” computer programs, designs, products, developments, drawings, notes, documents and other materials created by FVG during the term of this Agreement on behalf of Client in furtherance of the Website development and other Services that has been delivered to Client and paid for by Client, except for Generic Modules. Client Work Product shall not include any Client Materials, third party software products incorporated into the Client Work Product, or FVG Technology, as defined herein.

6.1.2. “Generic Modules” shall mean discrete computer program subroutines that are not specific to the function of the Client Work Product but are useful generally in FVG’s business.

6.1.3. “FVG Technology” shall mean any and all existing software, technology, know how, algorithms, procedures, techniques, and solutions associated with the use, design, development, testing and distribution of the Client Work Product and improvements to such existing software and related technology, which technology is owned by FVG or its suppliers and used by FVG in the development effort hereunder.

6.1.4. “Client Materials” shall mean any computer programs, designs, data, video or audio materials, graphics or other materials provided by Client to FVG pursuant to this Agreement.

6.1.5. “Intellectual Property” shall mean intellectual property or proprietary rights, including but not limited to copyright rights, moral rights, patent rights (including patent applications and disclosures), rights of priority, mask work rights, and trade secret rights, recognized in any country or jurisdiction in the world.

6.2. Ownership of Intellectual Property.

Except as otherwise set forth in this Section 6, FVG Technology, the Generic Modules, and all Intellectual Property rights contained therein are and will remain the sole and exclusive property of FVG. Nothing in this Agreement shall be construed to limit FVG’s right to use any information in nontangible form retained by FVG as ideas, information and understandings retained by its employees, contractors, and agents, provided that FVG may not use Client’s Confidential Information.

Client Work Product, the Deliverables and all Intellectual Property rights contained therein shall be the sole and exclusive property of Client subject to payment paid in full based upon the agreed pricing schedule. FVG has full authority and sufficient right, title, and interest in and to the Deliverables and Client Work Product to grant and convey the rights accorded to Client under this Section 6.2. Client Work Product and the Deliverables do not infringe, misappropriate or violate intellectual property rights of any third party.

6.3. Client’s Rights to FVG Technology.

FVG hereby grants to Client a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, fully paid license to use, reproduce, modify, display, perform, create derivative works based upon and to grant end-user customers (either directly or indirectly via distributors, value added resellers and software developers) sublicenses to use FVG Technology, the Generic Modules and all Intellectual Property rights contained in the Client Work Product.

6.4. FVG’s Rights to Client Materials.

Client grants to FVG a non-exclusive, revocable, worldwide, non-perpetual, royalty-free, paid up license to reproduce, modify, display, perform, adapt, transmit, distribute, improve, and otherwise use the Client Materials pursuant to the terms of this Agreement.

6.5. Cooperation.

Client will provide reasonable assistance and cooperation to FVG to acquire, transfer, maintain, perfect, and/or enforce the Intellectual Property rights in the Website (excluding Client Materials) and Client Work Product, including, but not limited to, execution of a formal assignment or such other documents as may be reasonable requested by FVG. Client hereby appoints the officers of FVG as Client’s attorneys in fact to execute such documents on Client’s behalf for this purpose.

6.6. Third Party Licenses.

In addition to any other fees set forth in this Agreement, Client shall be required to purchase any applicable third party licenses for any third party products that are necessary for FVG to design and develop the Website and are approved in writing by Client during the design phase. Such third products may include, but are not limited to: server-side applications, clip art, “back-end” applications, music, stock images, or any other copyrighted work (“Third Party Works”) which FVG deems necessary to purchase on behalf of Client to design and develop the Website. FVG shall provide Client with a list of all third party products upon Launch of the Website. Client agrees to adhere and abide by any such third party license terms. All Third Party Works are provided without any representation or endorsement, and without warranty of any kind, whether express or implied, including but not limited to, the implied warranties of satisfaction, fitness for a particular purpose, non-infringement or accuracy. FVG shall put, in writing, all third party licenses needed in advance of project commencement for approval by the Client.

6.7. Confidential Information

6.7.1. “Confidential Information” means any business, technical, financial, or customer or prospective customer information, data or material, in whatever form or media, of a party to this Agreement, that is marked as confidential or proprietary or that by its nature and type or the circumstances of disclosure should be reasonable understood to be confidential, including any personally identifiable information, that is provided or disclosed by such party, including its affiliates, owners, subcontractors or other representatives (“Receiving Party”), except for any information that is: (a) publicly available or later becomes available other than through a breach of this Agreement; (b) known to the Receiving Party prior to such disclosure or is independently developed by the Receiving Party or its employees, agents or representatives subsequent to such disclosure and without reference to the Confidential Information of the other party; or (c) subsequently lawfully obtained by the Receiving Party from a third party without obligations of confidentiality. Without limiting the foregoing, Confidential Information of Client shall include the Services for which FVG is engaged and Deliverables furnished or to be furnished by FVG under this Agreement.

6.7.2. Each party, in its capacity as the Receiving Party, covenants and agrees to hold the Confidential Information of the other party with strict confidentiality, using all reasonable efforts to safeguard it from unauthorized disclosure or use, and shall not directly or indirectly disclose, distribute, republish or allow any third party to have access to any Confidential Information of the Disclosing Party.

6.7.3. Notwithstanding the above, each party may disclose Confidential Information to employees, agents, independent contractors, subcontractors and consultants who have a need to know in connection with the development, use or exploitation of the Services and Deliverables. In the event of such disclosure, the recipient shall be shown the Confidentiality Agreement and agree to be bound by the terms.

6.7.4. A party must not use the Confidential Information of the other party for any purpose not related to the performance of its obligations and the exercise of its rights under this Agreement.

6.7.5.  The provisions of this Section 6.7 regarding Confidential Information and non-disclosure and nonuse of Confidential Information shall apply for the term of this Agreement, and shall survive termination or expiration of this Agreement for any reason and thereafter will continue to be binding on Client and FVG, and their successors and assigns.

6.7.6 Provided, however, nothing in this section shall prohibit the client from fulfilling all legal and ethical requirements to which it is or may become subject.

6.8. Return of Confidential Information.

Unless otherwise authorized, upon the earlier of termination of this Agreement or request of the Disclosing Party, with respect to the Disclosing Party’s Confidential Information the Receiving Party shall promptly either: (a) return such Confidential Information and provide certification to the Disclosing Party that all such Confidential Information has been returned or (b) with the Disclosing Party’s written permission, destroy such Confidential Information and provide certification to the Disclosing Party that all such Confidential Information has been destroyed.

6.9. Notification Obligation.

If the Receiving Party becomes aware of any unauthorized use or disclosure of the Confidential Information of the Disclosing Party, the Receiving Party shall promptly and fully notify the Disclosing Party of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Receiving Party or any of its employees or agents are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose the Confidential Information of the Disclosing Party, the Receiving Party shall not disclose the Confidential Information without providing the Disclosing Party at least sufficient prior written notice of any such request or requirement so that the Disclosing Party may have time to seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. Notwithstanding the foregoing, the Receiving Party shall exercise its best efforts to preserve the confidentiality of the Confidential Information including, without limitation, cooperating with the Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information.

6.10. Survival.

The terms of this Article 6 shall survive the expiration or termination of this Agreement.

ARTICLE 7 – INDEMNIFICATION

7.1. Indemnification.

Each party shall indemnify, defend and hold the other party and its affiliates, members, directors, officers, shareholders, employees, representatives, agents, attorneys, successors and assigns (collectively, the “Indemnified Parties”) harmless from and against any and all claims, liabilities, obligations, judgments, causes of action, costs and expenses (including reasonable attorneys’ fees) arising out of the negligence or willful misconduct of such party or its affiliates, employees, agents and subcontractors. Nothing contained in the Section, however, shall bar a claim for contributory negligence.

7.2. Indemnification Procedure.

Each party shall promptly notify the other in the event of the written threat or initiation of any claim, demand, action or proceeding to which the indemnification obligation set forth herein may apply. The indemnifying party shall have sole control of the defense. The Indemnified Party shall assist the indemnifying party, at the indemnifying party’s request and expense, in the defense or settlement of the matter; provided, however, that no such matter shall be settled without the Indemnified Party’s consent to the terms of settlement, which consent shall not be unreasonably withheld.

7.3. Survival.

The terms of this Article 7 shall survive the expiration or termination of this Agreement.

ARTICLE 8 – MISCELLANEOUS

8.1. Notices.

Unless the Agreement permits otherwise, any written notice required or permitted to be delivered pursuant to this Agreement shall be in writing and shall be deemed delivered: (a) upon delivery if delivered in person; (b) upon receipt if sent by United States mail, registered or certified mail, return receipt requested, postage prepaid; (c) one (1) business day after deposit with a national overnight courier, provided that confirmation of such overnight delivery is received by the sender; or (d) upon transmission if sent via email, in each case addressed to the specified addresses in the Statement of Work or to such other address as may be specified by either party hereto upon notice given to the other. Whenever possible, document deliveries required hereunder shall be delivered via electronic transmission.

8.2. Dispute Resolution.

Except as otherwise stated herein, any controversy, claim or dispute arising out of or relating to this Agreement or the breach, termination, enforceability, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined and settled by binding arbitration in Irvine, California before a sole arbitrator and administered under the auspices of the American Arbitration Association’s (“AAA”) then current AAA Commercial Arbitration Rules. The parties shall equally bear the cost of such arbitration and the prevailing party shall be reimbursed by the non-prevailing party for any such costs. Judgment on the award rendered may be entered in any court having jurisdiction. Upon request of either party, mediation shall be conducted prior to the binding arbitration pursuant to the mediation rules of the AAA. Attorneys’ fees shall be rewarded to the prevailing party and shall be reimbursed by the non-prevailing party. This provision shall not restrict, however, either party’s right to obtain injunctive relief to enforce any provision of this Agreement in any court of competent jurisdiction.

8.3. Force Majeure.

Each party shall be excused from performing any of its obligations hereunder, in whole or in part, as a result of delays caused by the other party or by an act of God, war, riot, civil commotion, explosion, fire, government action, court order, epidemic or other circumstance beyond its reasonable control, but specifically excluding labor and union-related activities or activities by a subcontractor of a party. If any of the above-enumerated circumstances prevent, hinder or delay performance of either party’s obligations hereunder for more than thirty (30) calendar days, the party not prevented from performing shall have the right to terminate this Agreement without liability or penalty as of the date specified by such party in a written notice of termination to the other party.

8.4. Marketing.

Client hereby grants Flying V the right to use the name and service marks of Client in its marketing materials or other oral, electronic, or written promotions, which shall include naming Client as a client of FVG and a brief scope of services provided. In addition, Client hereby grants FVG the right to display its logo (or other identifying information) and portions of Client’s Website on FVG’s home page or its website. Either party may elect to issue a press release related to this Agreement. In doing so, any release shall be approved by the other party and such approval shall not be unreasonable withheld.

8.5. Assignment; Binding Agreement.

This Agreement shall be binding on the parties and their successors and permitted assigns. FVG and Client shall have the right to assign this Agreement subject to written approval from the other party. Client shall not assign or otherwise transfer this Agreements, or any part hereof, nor delegate any of its duties hereunder, whether by operation of law or otherwise, to any third party without the prior written consent of FVG.

8.6. Counterparts.

This Agreement and any Statement of Work may be executed in one (1) or more duplicate originals or counterparts exchanged by the parties via electronic means, all of which together shall be deemed one and the same instrument. Upon request by a party to the other, an original signed counterpart shall be provided to the requesting party by the other party.

8.7. Severability.

If any provision of this Agreement or the Statement of Work is found by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable any other part of this Agreement or the Statement of Work, but rather the Agreement and/or Statement of Work shall be construed as not containing the particular provision or provisions held to be invalid or unenforceable; provided, if and to the extent any invalid or unenforceable provision may be modified so as to be valid and unenforceable as a matter of law, such provision will be deemed to have been modified so as to be valid and enforceable to the maximum extent permitted by law.

8.8. Waiver.

No delay or omission by either party hereto to exercise any right occurring upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall be deemed a waiver thereof. All waivers must be signed by the party granting it. A waiver by either of the parties hereto of any of the covenants, conditions or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained.

8.9. Independent Contractor.

Neither party shall make any representations or warranties or incur any liability on behalf of the other. Neither party is the representative, partner, employee or any form of agent of the other party. FVG shall, at all times, perform its obligations under this Agreement as an independent contractor.

8.10. Non-Exclusivity.

Nothing in this Agreement shall limit or restrict either party from entering into or continuing any agreement with any other party, whether similar to this Agreement in nature or scope. Moreover, each party shall remain free to provide products and services to any client or prospective client so long as the terms of this Agreement are not violated.

8.11. Governing Law; Exclusive Jurisdiction.

This Agreement, and all the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement or the transaction(s) contemplated by it, shall be governed by, construed and enforced in accordance with the laws of the State of California. Any suit or proceeding relating to this Agreement, including arbitration proceedings, shall be brought only in Irvine, California. EACH OF THE PARTIES CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, LOCATED IN SUCH JURISDICTION.

8.12. No Construction Against Drafter.

The parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement.

8.13. Survival.

All provisions of this Agreement relating to confidentiality, proprietary rights, indemnification, and limitations of liability shall survive the termination of this Agreement.

8.14. Entire Agreement; Modification.

This Agreement, sets forth the entire and final agreement between the parties as to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, between the parties. This Agreement may be modified or amended only pursuant to a writing executed by authorized representatives of Client and FVG.

8.15. Final Agreement in Hardcopy.

This hardcopy, manually executed agreement, is the final agreement and can only be modified by a mutually executed hardcopy.