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Professional Services Agreement

Professional Services Agreement

This Professional Services Agreement (the “Agreement”) sets forth the terms and conditions by which HeroDevs, Inc. (“HeroDevs”) provides Professional Services to the entity set forth in the executed SOW (referred to herein as “Customer”).

1. Definitions.

“Confidential Information” has the meaning set forth in Section 6.1.

“Deliverables” means the documents and software identified as “Deliverables” in a Statement of Work.

“Fees” has the meaning set forth in Section 5.

“HeroDevs Materials” means the information, data, documents, materials works and other content, devices, methods, processes, software and other technologies and inventions previously developed and owned or licensed by HeroDevs in performing the Professional Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by HeroDevs or through the use of third-party services.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

“Professional Services” means the provision of services set forth in the SOW, which may include assistance provided on a time & material basis, or, the provision of a definitive Deliverable. For the avoidance of doubt, this Agreement shall not be used for the provision of software subscriptions, which shall be governed by a separate definitive agreement.

“SOW Term” means the period of time during which an SOW is in effect.

“Statement of Work” or “SOW” means each contract document that is executed by duly authorized representative of each party, titled “Statement of Work” or “SOW, and by its terms expressly refers to this Agreement and states that it incorporates the terms of this Agreement. SOW’s may also be attached to transaction documents which describe products and services to be delivered by HeroDevs (an “Order Form”).

“Third-Party Materials” means materials and information, in any form or medium, including in the HeroDevs Materials that are not proprietary to HeroDevs.

2. Professional Services.

2.1 General; SOWs. This Agreement will govern each party's rights and obligations relating to HeroDevs’s provision of Professional Services. The Agreement, by itself, does not implement any transaction; HeroDevs and Customer intend that all services provided by HeroDevs to Customer hereunder be implemented through individual SOWs. HeroDevs will provide the Professional Services described in each SOW. The description of Professional Services in each SOW will be based on information provided by Customer; Customer acknowledges that if the information provided by Customer is incomplete or inaccurate, or if the stated assumptions in the SOW are not correct, then the parties may amend the SOW by a written agreement signed by duly authorized representatives of each party, or HeroDevs may terminate the SOW without cause.

2.2 Unless otherwise stated in the SOW, upon final completion and delivery of the Professional Services which contemplate the provision of a definitive Deliverable(s), Customer will have five (5) days in which to notify HeroDevs in writing whether the Professional Services fails to comply with the descriptions in the relevant SOW and the reasons for such failure; if HeroDevs is not notified of any problems within this time period, the Professional Services will be deemed to be accepted by Customer. In the event Professional Services are to be provided on a time and material basis, such Professional Services shall be considered accepted upon performance of the applicable hour(s) and/or milestones set forth in the SOW.

2.3 Ownership of Professional Services. Professional Services which result in the provision of a Deliverable shall be deemed to be “work for hire” which is owned by Customer. In the event that any HeroDevs Materials are incorporated in Professional Services, they shall continued to be owned by HeroDevs. In such event, HeroDevs hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with this Agreement, including but not limited to Section 3 below) license to use such HeroDevs Materials in connection with the Professional Services and Deliverables. This Agreement does not modify Customer’s rights under any third party terms and conditions that accompany any Third Party Materials.

3. Use Restrictions on HeroDevs Materials.

3.1 Customer’s use of HeroDevs Materials shall be limited to its use in connection with the Professional Services. Customer shall not separately (a) copy, modify, or create derivative works or improvements of the HeroDevs Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any HeroDevs Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; or (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the HeroDevs Materials.

4. Customer Obligations.

4.1 Cooperation. Customer shall at all times provide: (a) HeroDevs personnel (including subcontractors) with such access to Customer's premises and Customer Systems as is necessary for HeroDevs to perform the Professional Services; and (b) all cooperation and assistance as reasonably requested by HeroDevs to enable HeroDevs to exercise its rights and perform its obligations under and in connection with this Agreement. “Customer Systems” means Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.

4.2 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by this Agreement, including but not limited to Section 3, Customer shall immediately: (a) take all reasonable and lawful measures within its control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the HeroDevs Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify HeroDevs in writing of any such actual or threatened activity.

5. Fees and Payment.

5.1 Customer shall pay HeroDevs the fees set forth in the SOW (“Fees”) in accordance with this Section 5. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on HeroDevs' income. Customer shall pay all Fees on or prior to the due date set forth in the SOW. Customer shall make all payments hereunder in US dollars. Customer shall make payments to the address or account specified in the SOW, transaction document, or such other address or account as HeroDevs may specify in writing from time to time. All amounts payable to HeroDevs under this Agreement shall be paid by Customer to HeroDevs in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law). In the event that Customer fails to make timely payments in accordance with payment terms set forth in the SOW, HeroDevs reserves the right to charge an additional 5% late fee.

6. Confidentiality.

6.1 Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 6.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary and that the parties have expressly designated as Confidential Information in the relevant SOW.

6.2 Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information. “Representatives” means, with respect to a party, that party's employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.

6.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

  1. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
  2. except as may be permitted by and subject to its compliance with Section 6.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 6; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in 3.this Section 6;
  3. safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
  4. ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 6.

6.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 6.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 6.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.

7. Intellectual Property Rights.

7.1 Pursuant to Section 2.3 above, Customer owns all right, title, or interest in or to the Deliverable(s), as set within the SOW. However, all right, title, and interest, including all Intellectual Property Rights, in and to the HeroDevs Materials and the Third-Party Materials are and will remain with HeroDevs and the respective rights holders in the Third-Party Materials. With respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. The Parties recognize that HeroDevs services in providing the Professional Services are non-exclusive as to Customer, and that HeroDevs shall not be prevented from providing similar services to other customers so long as such work does not interfere with Customer’s use of the Professional Services.

8. Representations and Warranties.

8.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that it has validly entered into this Agreement and has the legal power to do so.

8.2 Additional HeroDevs Representations and Warranties. HeroDevs represents and warrants to Customer that HeroDevs will perform the services necessary to generate the Professional Services in a professional and workmanlike manner.

8.3 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 8.1 AND SECTION 8.2, ALL PROFESSIONAL SERVICES AND HERODEVS MATERIALS ARE PROVIDED "AS IS." HERODEVS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, HERODEVS MAKES NO WARRANTY OF ANY KIND THAT THE PROFESSIONAL SERVICES OR HERODEVS MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE , OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

9. Limitations of Liability.

9.1 EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.3, IN NO EVENT WILL A PARTY (OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS) BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (C) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (D) COST OF REPLACEMENT GOODS OR SERVICES (INCLUDING PROFESSIONAL SERVICES); (E) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

9.2 CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.3, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF A PARTY (AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS) ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE PROFESSIONAL SERVICES, HERODEVS MATERIALS, OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE GREATER OF, (A) FIVE THOUSAND UNITED STATES DOLLARS ($5,000USD), OR, (B) THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE RELEVANT SOW. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

9.3 Exceptions. The exclusions and limitations in Section 9.1 and Section 9.2 do not apply to either party’s obligations under Sections 3 or 6, liability for either party’s gross negligence or willful misconduct, or liability for violating the Intellectual Property Rights of the other party.

10. Term and Termination.

10.1 Term. The term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement's express provisions, will continue in for two (2) years from such date (the “Term”). Prior to any and each expiration date, the Term will automatically be extended for an additional one (1) year unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party written notice of non-renewal at least ninety (90) days prior to the expiration of the Term. Notwithstanding the foregoing, even if terminated, this Agreement shall continue to govern any active SOW(s).

10.2 Termination Without Cause. Either party may terminate any SOW without cause by providing forty-five (45) days’ written notice of termination without cause.

10.3 Termination for Cause. In addition to any other express termination right set forth elsewhere in this Agreement:

  1. either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach;
  2. either party may terminate any SOW, and at is election this Agreement and all other SOWs, effective on written notice to the other party, if the other party materially breaches the SOW, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and,
  3. either party may terminate this Agreement and all SOWs, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

10.4 Effect of Termination or Expiration. Upon any expiration or termination of this Agreement or of an SOW, except as expressly otherwise provided in this Agreement of the SOW, then with respect to the Agreement or that SOW:

  1. in the case of any termination by HeroDevs pursuant to Section 10.3(1) or 10.3(2), or by either party pursuant to Section 10.3(3), Customer shall immediately cease all use of HeroDevs Materials and within fifteen (15) days return to HeroDevs, or at HeroDevs's written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any HeroDevs Materials; and (ii) permanently erase all HeroDevs Materials from all systems Customer directly or indirectly controls; and (iii) certify to HeroDevs in a signed written instrument that it has complied with the requirements of this Section 10.4(a);
  2. if this Agreement of the SOW is terminated pursuant to Section 2.1 or 10.3, Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and HeroDevs will refund to Customer Fees paid in advance for any Professional Services that HeroDevs has not performed as of the effective date of termination; and,
  3. if HeroDevs terminates this Agreement or the SOW pursuant to Section 10.2, Customer shall pay all previously-accrued but not yet paid Fees on receipt of HeroDevs's invoice therefor.

10.5 Survival.

  1. Survival of this Agreement and SOWs. In connection with any expiration or termination of this Agreement, with respect to each SOW that has not itself expired or been terminated, upon expiration or termination of this Agreement, all rights granted pursuant to this Agreement will continue in accordance with their terms, in which case this Agreement will continue in effect with respect to each such SOW until the expiration or termination of each such SOW.
  2. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3, Section 6, Section 8.3, Section 9, Section 10, and Section 11.
11. Force Majeure.

11.1 No Breach or Default. In no event will either party be liable or responsible to /the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, epidemic or pandemic, Internet service failure or delay, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement and all SOWS if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.

11.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to /the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

12. Miscellaneous.

12.1 Further Assurances. On a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.

12.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

12.3 Subcontractors. HeroDevs may from time to time in its discretion engage third parties to perform services necessary to generate the Professional Services.

12.4 Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to the receiving party’s physical address or email address. Notices sent in accordance with this Section 12.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email or facsimile with confirmation of transmission; and (d) on the fifth day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

12.5 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

12.6 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in this Agreement, and the applicable SOW(s), the terms of the SOW shall govern.

12.7 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without HeroDevs' prior written consent. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 12.7 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.

12.8 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

12.9 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

12.10 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

12.11 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Utah without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Utah. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Utah in each case located in Salt Lake City and County of Salt Lake, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

12.12 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 3 or Section 6 could cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

12.13 Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.