(a) The Service Recipient hereby retains Tribexa, and Tribexa hereby agrees to provide to the Service Recipient, certain administrative, operational, financial, management and support services as reasonably required for the operation of the Service Recipient as set forth herein.
(b) Tribexa shall, at all times, be subject to the supervision of the Governing Body of the Service Recipient and shall not provide or arrange for the provision of such Services (defined below) as such Governing Body may decline to accept from time to time. “Governing Body” means (i) with respect to a corporation, the board of directors of such corporation, (ii) with respect to a limited liability company, the manager(s) or managing member(s) of such limited liability company, (iii) with respect to a limited partnership, the board, committee or other body of the general partner of such partnership that serves a similar function or the general partner itself (or if any such general partner is itself a limited partnership, the board, committee or other body of such general partner’s general partner that serves a similar function or such general partner’s general partner itself) and (iv) with respect to any other person, partnership, limited partnership, limited liability partnership, joint venture, syndicate, sole proprietorship, limited liability company or corporation, unincorporated association, trust, trustee, executor, administrator or other legal personal representative, regulatory body or agency, government or governmental authority (“each, a “Person”), the body of such Person that serves a similar function, and in the case of each of clauses (i) through (iv) includes any committee or other subdivision of such body and any Person to whom such body has delegated any power or authority, including any officer or managing director.
Tribexa will provide, or arrange for the provision of, and will have the exclusive power and authority to provide or arrange for the provision of, some or all of the following services to the Service Recipient:
(a) Tribexa shall, and shall cause any other member of Tribexa to, refrain from taking any action that is not in compliance with or would violate any applicable federal, state and local laws, rules and regulations (“Laws”) or that otherwise would not be permitted by the governing documents under which an entity was organized, formed, created or operates (“Governing Documents”). If Tribexa, or any member of Tribexa, is instructed by Service Recipient to take any action or refrain from taking any action that is not in such compliance, to the extent such Person has knowledge of such non-compliance, such Person will promptly notify the Service Recipient of its judgment that such action would not comply with or would violate any such Laws or otherwise would not be permitted by such Governing Documents.
(b) In performing its duties under the Agreement, each member of Tribexa (i) may consult with legal counsel, accountants, appraisers, management consultants, investment bankers and other consultants and advisers selected by it, and any act taken or omitted to be taken in reliance upon the advice or opinion (including an opinion of counsel) of such Persons as to matters that any member of Tribexa reasonably believes to be within such Person’s professional or expert competence shall be conclusively presumed to have been done or omitted in good faith and in accordance with such advice or opinion, and (ii) shall be permitted to rely in good faith upon the direction of the Service Recipient to evidence any approvals or authorizations that are required under the Agreement.
(a) In consideration for the performance of the Services described herein, the Service Recipient shall pay Tribexa based on the Fee Schedule on a monthly basis (“Fees”). Each month, Tribexa shall provide the Service Recipient with a report (the “Invoice”), accompanied with a calculation of the Fees owed to Tribexa.
(b) The Fees shall be due and payable upon receipt by the Service Recipient of an Invoice. Any unpaid Fees will accrue additional late fees and penalties calculated at the rate of 1.5% per each 30 day period, or any portion of a 30 day period where Fees are outstanding.
(c) Service Recipient shall be required to maintain a security deposit with Tribexa in an amount no less than the estimated out of pocket reimbursement for thirty (30) days of services, to be determined at the discretion of Tribexa. Service Recipient shall be notified if, at any time, additional security deposit is required and shall have five (5) days from notification to provide additional security deposit to Tribexa else services may be terminated at the discretion of Tribexa. Service Recipient may request return of excess security deposit on a quarterly basis and any excess security deposit, as determined by Tribexa, shall be returned to Service Recipient no later than ten (10) business days after the end of each calendar quarter. Upon termination of Agreement, any security deposit will be applied to outstanding Fees and the remaining amount, if any, shall be returned to Service Recipient.
(d) In addition to the other sums payable under the Agreement, Service Recipient shall pay, and hold Tribexa harmless against, all sales, use or other taxes, or other fees or assessments imposed by any law in connection with the provision of the Services, other than income, franchise or margin taxes measured by Tribexa’s net income or margin and other than any gross receipts or other privilege taxes imposed on Tribexa. Tribexa and Service Recipient shall cooperate with each other and use commercially reasonable efforts to assist the other in entering into such arrangements as the other may reasonably request in order to minimize, to the extent lawful and feasible, the payment or assessment of any taxes relating to the transactions contemplated by the Agreement.
(e) Service Recipient may, within thrity (30) days after receipt of Invoice provide written notice to Tribexa of its dispute of the Fees in connection with the provision of Services under the Agreement. If the disputed amount or any part thereof is ultimately determined to be an error or inaccurate in connection with the provision of Services, such amount or portion thereof (as the case may be) shall be credited against future amounts due hereunder or, upon expiration or termination of the Agreement. Service Recipient shall have no right to dispute any payment of Fees after such thirty (30) day period and shall be deemed to have waived any claims or rights with respect to such amounts to the extent not disputed within such period.
The Service Recipient shall reimburse Tribexa for any expenses and out of pocket costs, along with a 2% expense processing fee, reasonably and necessarily incurred by Tribexa during the Term in furtherance of Tribexa’s services including, but not limited to, travel, meals, accommodations, subscriptions, licenses and other items as required, upon submission to the Service Recipient.
(a) Service Recipient Representations. Service Recipient represents and warrants to Tribexa, as of the date hereof, as follows:
(i) Organization; Requisite Power and Authority. Service Recipient (a) is validly existing and in good standing under the laws of the State of Delaware or other applicable jurisdiction of organization or formation, as the case may be, (b) has all requisite power and authority, and is duly authorized, to enter into the Agreement and to carry out the transactions contemplated hereby and thereby, and (c) is qualified to do business and in good standing in every jurisdiction where necessary to carry out its business and operations as required by applicable Law.
(ii) Due Authorization. The execution, delivery and performance of the Agreement and the consummation of the transactions contemplated by the Agreement have been duly authorized by all necessary action on the part of Service Recipient.
(iii) No Conflict. The execution, delivery and performance by Service Recipient of the Agreement and the consummation of the transactions contemplated by the Agreement do not (a) violate in any material respect any provision of any Law applicable to the Service Recipient, or violate its Governing Documents or any order, judgment or decree of any court or other governmental authority binding on the Service Recipient; (b) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contract or agreement to which the Service Recipient is a party or by which its assets are bound; (c) result in or require the creation or imposition of any lien upon any of the Properties or assets of the Service Recipient or result in the acceleration of any indebtedness owed by the Service Recipient; (d) result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any Permit material to the Service Recipient’s operations or any of its Properties; or (e) require any approval of equity holders or any approval or consent of any Person under any contractual obligation or the Governing Documents of the Service Recipient, except in the case of each of the foregoing clauses for such approvals or consents which have been obtained or are otherwise contemplated by the Agreement.
(iv) Binding Obligation. The Agreement has been duly executed and delivered by the Service Recipient and is the legal, valid and binding obligation of the Service Recipient, enforceable against the Service Recipient in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability (whether enforcement is sought in equity or at law).
(b) Tribexa Representations. Tribexa represents and warrants to Service Recipient, as of the date hereof, as follows:
(i) Organization; Requisite Power and Authority; Qualification. Tribexa (a) is validly existing and in good standing under the laws of the state of Florida, (b) has all requisite power and authority, and is duly authorized, to enter into the Agreement and to carry out the transactions contemplated hereby and thereby, including, in the case of Tribexa, providing the Services, and (c) is qualified to do business and in good standing in every jurisdiction where necessary to carry out its business and operations as required by applicable Law.
(ii) Due Authorization. The execution, delivery and performance of the Agreement and the consummation of the transactions contemplated by the Agreement have been duly authorized by all necessary action on the part of Tribexa, if a party thereto.
(iii) No Conflict. The execution, delivery and performance by Tribexa of the Agreement, and the consummation of the transactions contemplated by the Agreement including providing the Services, do not, (A) violate in any material respect any provision of any Law applicable to Tribexa, or violate its Governing Documents or any order, judgment or decree of any court or other governmental authority binding Tribexa; (B) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contract or agreement to which Tribexa is a party or by which its assets are bound; (C) result in or require the creation or imposition of any lien upon any of the properties or assets of Tribexa or result in the acceleration of any indebtedness owed by Tribexa; (D) result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any permit material to Tribexa’s operations or any of its properties; or (E) require any approval of equity holders or any approval or consent of any Person under any contractual obligation or the organizational document of Tribexa, except for such approvals or consents which have been obtained or otherwise contemplated by the Agreement.
(iv) Binding Obligation. The Agreement has been duly executed and delivered by Tribexa, if a party thereto, and is the legal, valid and binding obligation of Tribexa and enforceable against Tribexa in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability (whether enforcement is sought in equity or at law).
(v) Not an Affiliate. Neither Tribexa, any member of Tribexa, nor any individual associated with Tribexa or any member of Tribexa has been, is or will be an Affiliate of Service Recipient. For purposes hereof, “Affiliate” of a Service Recipient shall mean (i) any subsidiary or parent of a Service Recipient, (ii) any other person directly or indirectly controlling, controlled by or under common control with a Service Recipient, whether through ownership, by contract, arrangement or understanding or otherwise, which shall be presumed to exist if Tribexa or any member of Tribexa beneficially owns or has any interest in or to has any the equity of, profits from (other than through payment of fees hereunder) or voting power respecting such Service Recipient or vice versa, or (iii) any director, officer, general partner, limited partner, manager or other executive of or partner, member or joint venturer in Service Recipient.
(c) Separateness Covenants. Notwithstanding anything in the Agreement to the contrary, for so long the Agreement is in effect, Tribexa shall not:
(i) fail to observe all corporate formalities and other formalities required by its Governing Documents or the laws of the State of Florida, or fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the Florida Business Corporation Act;
(ii) commingle its funds or assets with the funds or assets of Service Recipient;
(iii) fail to maintain all of its books, records, financial statements and bank accounts separate from those of Service Recipient;
(iv) maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of Service Recipient;
(v) hold itself out to be responsible for the debts of the Service Recipient or hold out its credit as being available to satisfy the obligations of the Service Recipient;
(vi) fail to (A) hold itself out to the public and identify itself, in each case, as a legal entity separate and distinct from the Service Recipient and not as a division or part of the Service Recipient, (B) conduct its business solely in its own name, (C) hold its assets in its own name or (D) correct any known misunderstanding regarding its separate identity;
(vii) fail to allocate shared expenses (including, without limitation, shared office space) or fail to use separate stationery, invoices and checks from that of each Service Recipient (except to the extent Tribexa is permitted to act on behalf of Service Recipient pursuant to the terms of the Agreement);
(viii) fail to pay its own liabilities from its own funds; and
(ix) fail to be adequately capitalized to engage in its business separate and apart from Service Recipient and to remain solvent.
The assets of the Service Recipient have not been and will not be listed as assets on the financial statement of Tribexa. Tribexa and Service Recipient have maintained and will maintain their respective books, records, resolutions and agreements as official records. Failure by Tribexa or Service Recipient to comply with any of the obligations set forth in this Section 6(c) shall not affect the status of Service Recipient as separate legal entities, with separate assets and separate liabilities.
(d) Service Recipient Records; Audit Rights. At all times during the term of the Agreement, Tribexa shall maintain books of account, receipts, disbursements, permits and all other records relating to the Services performed hereunder (collectively, the “Records”). All accounting records shall be maintained in all material respects in accordance with generally accepted accounting principles. Each Service Recipient shall have the right, upon 30 days’ prior notice to Tribexa, and at reasonable times during usual business hours of Tribexa to, no more than twice per year review and audit the Records; provided, however, that such review and audit does not unreasonably interfere with the operations of Tribexa. Each Service Recipient shall bear all costs and expenses incurred in connection with any review or audit. Tribexa shall review and respond in a timely manner to any claims or inquiries made by the Service Recipient regarding matters revealed by any such review or audit. Notwithstanding anything herein to the contrary, Tribexa shall not be obligated to disclose or make available to the Service Recipient any information prohibited by Law or restricted by contractual obligations of confidentiality.
(e) Certain Actions Prior to Termination. Until the termination or expiration, Tribexa will not take any action in performing the Services that is inconsistent with the Service Recipient’s Governing Documents; provided, that Tribexa shall be deemed to have acted consistently with the Governing Documents when following the express directions of a Governing Body or when clarification is otherwise requested and received from a Governing Body.
(a) Termination. The Agreement may be terminated by either party by providing thirty (30) days written notice of termination.
(b) Termination for Breach. Either Party may terminate the Agreement effective immediately upon written notice to the other Party, for a material breach by the other Party of the Agreement that, if curable, remains uncured for 10 days after the non-breaching Party first gives writing notice to the other Party of such breach and its intent to terminate the Agreement if such breach is not cured.
(c) Return of Records. Upon the termination or expiration of the Agreement: (i) Tribexa shall, as promptly as reasonably possible, deliver to Service Recipient all of the Service Recipient’s Records and other books and records maintained by Tribexa on behalf of Service Recipient that does not constitute Tribexa Confidential Information and (ii) Tribexa will reasonably cooperate with Service Recipient, at their expense, to cause an orderly and timely transition of the Services to a successor service provider.
(d) Termination Payment. Notwithstanding anything herein to the contrary, in the event of expiration or termination of the Agreement for any reason, each party shall pay to the other party any accrued but unpaid obligations of such party as of the date of termination or expiration including unpaid Fees, any open invoices, any outstanding Fees that were incurred by Tribexa on behalf of Service Recipient but have yet to be invoiced to Service Recipient and remaining monthly Service Fees through the end of the Term of the agreement.
(a) Limitation of Tribexa Liability. Notwithstanding Tribexa’s agreement to perform, or cause to be performed, the Services in accordance with the provisions hereof, Service Recipient acknowledges that performance by Tribexa or any other Person of the Services pursuant to the Agreement will not subject Tribexa, or its respective equity holders, directors, officers, members, agents or employees (each, a “Provider Party”) to any losses, liabilities, claims (including, without limitation, third party claims), demands, suits, causes of action, judgments, awards, damages, interest, fines, fees, penalties, costs and expenses (including, without limitation, all reasonable attorneys’ fees and other costs and expenses incurred in defending any such claims or other matters or in asserting or enforcing any indemnity obligation under this Section 8) of whatsoever kind and nature (“Losses”) whatsoever, except as directly caused by (i) the gross negligence, willful misconduct, or actual fraud on the part of a Provider Party or (ii) any material breach of any covenant, representation or warranty of Tribexa hereunder; provided, however, if any of such Losses are covered by any insurance policy of Service Recipient (to the extent such insurance policy covers Service Recipient), the aggregate liability of such Provider Party with respect to such Losses shall be reduced by the amount recovered by the Service Recipient under such policy in respect of such Losses and in no event will Tribexa’s liability exceed the Fees received by Tribexa during the six (6) months preceding the date of the indemnification obligation hereunder.
(b) Service Recipient Indemnification. Except as specifically set forth in the Agreement, Service Recipient, severally, and not jointly, hereby agree to indemnify and hold harmless, Tribexa Parties from any and all Losses arising from or relating to (i) the provision or use of any Service or product provided hereunder to the extent not directly caused by the negligence, willful misconduct, or actual fraud of a Provider Party or (ii) any material breach of any covenant, representation or warranty of the Service Recipient hereunder.
(c) Exclusion of Damages; Disclaimers.
(i) No party shall be liable to any other party hereto under the Agreement for exemplary, punitive, consequential, special or incidental damages, or lost profits, provided that damages paid by a party to a third party shall be considered actual damages subject to indemnification.
(ii) Tribexa makes no express or implied warranty, guaranty or representation, including, without limitation, any express or implied warranty of fitness for particular purpose, suitability or merchantability regarding any equipment, materials, supplies or services acquired from vendors, suppliers or subcontractors. Service Recipient’s exclusive remedies with respect to equipment, materials, supplies or services obtained by Tribexa from vendors, suppliers and subcontractors shall be those under the vendor, supplier and subcontractor warranties, if any, and Tribexa’s only obligation, arising out of or in connection with any such warranty or breach thereof, shall be to use diligent efforts to enforce such warranties on behalf of Service Recipient, and Service Recipient shall have no other remedies against Tribexa with respect to equipment, materials, supplies or services obtained by Tribexa from its vendors, suppliers and subcontractors.
(d) Claims; Defense and Settlement.
(i) Whenever any claim arises for indemnification hereunder, the indemnified Person shall promptly notify the indemnifying party of the claim and, when known, the facts constituting the basis for such claim, except that in the event of any claim for indemnification hereunder resulting from or in connection with any claim or legal proceedings by a third party, except as otherwise expressly provided in this Section 8, such notice shall specify, if known, the amount or an estimate of the amount of the Losses asserted by such third party.
(ii) In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a Person who is not a party, the indemnifying party, may, upon notice to the indemnified Person, assume the defense of any such claim or legal proceeding. Except with the written consent of the indemnified Person, the indemnifying party shall not consent to the entry of any judgment or settlement arising from any such claim or legal proceedings which, in each case, provides for any non-monetary relief or does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the indemnified Person of a release from all Losses in respect thereof, unless in the latter case the indemnifying party has actually paid to the indemnified Person the full amount of such judgment or settlement. Any indemnified Person shall be entitled to participate in (but not control) the defense of any such claim or litigation resulting therefrom. If the indemnifying party does not elect to control the litigation as provided above, the indemnified Person may defend against such claim or litigation in such manner as it may deem appropriate, including, without limitation, settling such claim or litigation, after giving notice of the same to the indemnifying party, on such terms as such indemnified Person may deem appropriate, and the indemnifying party shall promptly reimburse the indemnified Person (subject to Section 8(a)) from time to time as such Losses are incurred. All indemnification hereunder shall be effected by payment of cash or delivery of a certified or official bank check in the amount of the indemnification Losses.
(iii) Except as provided above, all claims for Losses brought by third parties against a Service Recipient (x) arising out of or in any way relating to the provision of Services hereunder and (y) not discharged by insurance required hereunder, shall only be settled or, with Tribexa’s concurrence, defended by Tribexa, at Service Recipient’s expense.
(e) The remedies of each party set forth in this Section 8 are the sole and exclusive remedies of the parties under the Agreement.
(a)Tribexa acknowledges that it may receive Service Recipient Confidential Information, and Service Recipient acknowledges that it may receive Tribexa Confidential Information (collectively, and as further defined below in this Section 11(a), “Confidential Information”), the release of which would be damaging to the parties or Persons with which the parties conduct business. Each party shall hold in strict confidence any Confidential Information that such party receives from the other party, and each party shall not disclose such Confidential Information to any Person, or use such information for any purpose other than to perform the Services or as contemplated hereby, except for disclosures (i) to comply with any Laws; provided, that, if permitted by applicable Law, a party must notify the other party promptly of any disclosure of Confidential Information which is required by Law, and any such disclosure of Confidential Information shall be to the minimum extent required by Law, (ii) to affiliates, partners, members, stockholders, investors, directors, officers, employees, agents, attorneys, consultants, lenders, professional advisers or representatives of the party or its affiliates; provided, that such party shall be responsible for assuring such affiliates’, partners’, members’, stockholders’, investors’, directors’, officers’, employees’, agents’, attorneys’, consultants’, lenders’, professional advisers’ and representatives’ compliance with the terms hereof (and such party shall be liable for any non-compliance by such Persons as if such Persons were bound as a party hereto), except to the extent any such Person who is not an affiliate, partner, member, stockholder, director, officer or employee has agreed in writing addressed to the other party to be bound by customary undertakings with respect to confidential and proprietary information similar to this Section 11(a), (iii) to Persons to which Service Recipient’s Properties may be transferred, but only if the Recipient of such information have agreed to be bound by customary confidentiality and non-use undertakings similar to this Section 11(a), (iv) of information that a party also has received from a source independent of the other party and that such party reasonably believes such source obtained such information without breach of any obligation of confidentiality to the other party or its affiliates, (v) that have been or become independently developed by a party or its affiliates, or on their behalf without using any of the Confidential Information, (vi) that are or become generally available to the public (other than as a result of a prohibited disclosure by such party or Persons for which such party is responsible for under clause (ii) above), (vii) to third parties to the extent necessary for such third parties to provide the Services hereunder, or (viii) to the extent the non-disclosing party shall have consented to such disclosure in writing. The parties agree that breach of the provisions of this Section 11(a) by such party would cause irreparable injury to the other party for which monetary damages (or other remedy at Law) would be inadequate in view of (x) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a party to comply with such provisions and (y) the uniqueness of the Services and the confidential nature of the Confidential Information. Accordingly, the parties agree that the provisions of this Section 11(a) may be enforced by either party by temporary or permanent injunction (without the need to post bond or other security, therefor), specific performance or other equitable remedy and by any other rights or remedies that may be available at law or in equity. The term “Confidential Information” shall include any information pertaining to the identity of the parties and the Properties, which is not available to the public, whether written, oral, electronic, visual form or in any other media, including, such information that is proprietary, confidential or concerning the parties and the parties’ ownership and operation of the Properties, provision of the Services, or related matters, including any actual or proposed operations or development project or strategies, other operations and business plans, actual or projected revenues and expenses, finances, contracts and books and records. Notwithstanding anything herein to the contrary, if a party has approved or been consulted with respect to any disclosures as required hereunder, the other party or its affiliates shall be entitled to make disclosures substantially similar (as to form and content) to those prior disclosures that the non-disclosing party has approved or been consulted with respect to, as applicable.
(b)The parties acknowledge and agree that neither of the parties shall furnish or otherwise provide a copy of the Agreement (or any part hereof) to any Person (other than the parties and their affiliates, and their respective representative(s) and adviser(s)), unless (i) otherwise agreed in writing by each of the parties, (ii) required by applicable Laws (and if required by applicable Laws, a copy of the applicable portions of the Agreement shall be furnished only to the extent necessary to comply with such applicable Laws) and (iii) in compliance with clauses (i)–(viii) of Section 11(a), as if the Agreement were Confidential Information.
If to Tribexa:
3121 W Hallandale Beach Blvd
Hallandale Beach, FL 33009
Attn: Sandy Fliderman
If to Service Recipient, address and contact listed in the Master Services Agreement or to such other person and address as either party may designate in writing.
(a)The Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida, without regard to principles of conflicts of laws.
(b) Each of Tribexa and Service Recipient (i) submits itself to the exclusive jurisdiction of the state and federal courts sitting in Broward County, Florida, (ii) agrees and consents that service of process may be made upon it in any legal proceeding relating to the Agreement by any means allowed under Florida or federal law, and (iii) waives any objection that it may now or hereafter have to the venue of any such proceeding being in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.