THIS AGREEMENT (the “Agreement”) BETWEEN 360PROS VIRTUAL MEDIA INC. AND ITS AFFILIATES (“360Pros“) AND YOU (the “Client”). THESE TERMS AND CONDITIONS GOVERN YOUR USE OF 360PROS’ SERVICES, SOFTWARE, PLATFORMS, AND RELATED MATERIALS (the “Services”). IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS THEN YOU ARE NOT AUTHORIZED TO USE THE SERVICES. YOUR USE OF THE SERVICES, OR PAYMENT OF DEPOSIT, CONSTITUTES YOUR AGREEMENT AND INTENT TO BE BOUND BY THESE TERMS AND CONDITIONS. THE PERSON AGREEING TO THESE TERMS AND CONDITIONS REPRESENTS AND WARRANTS THAT (A) THEY ARE AUTHORIZED TO ENTER INTO THESE TERMS AND CONDITIONS ON BEHALF OF THE PARTY, ENTITY, OR ORGANIZATION USING THE SOFTWARE PLATFORM; AND (B) THEY ARE AT LEAST THE LEGALLY REQUIRED AGE TO ENTER INTO AND BE BOUND BY CONTRACTS IN THE JURISDICTION IN WHICH THEY RESIDE.
FOR GOOD AND VALUABLE CONSIDERATION, 360Pros and the Client (each a “Party” and together the “Parties”) agree as follows:
1. DEFINITIONS. The following terms will have the following meanings:
(a) “Affiliate” means, with respect to any party to this Agreement, any person, partnership, joint venture, corporation or other entity which directly or indirectly controls, is controlled by, or is under common control with such party where “control” (or variants of it) means the ability to direct the affairs of another by means of ownership, contract or otherwise.
(b) “Business Day” means any day except Saturdays, Sundays or statutory holidays in British Columbia.
(c) “Deliverables” means all products that are made, conceived, developed, or delivered to the Client by 360Pros, either alone or jointly with others, in connection with the provision of the Services and includes all results of 360Pros’s work pursuant to this Agreement, regardless of the form or format or of how such Deliverables are communicated or provided to the Client.
(d) “Estimate” means the estimate(s) or quote(s) of the approximate Services that describe the Services and/or Deliverables to be provided by 360Pros to the Client, including any changes and modifications.
(e) “Fees” means the fees payable by the Client to 360Pros for the Services and/or the Deliverables, and all applicable duties, levies, taxes, or similar governmental assessments of any nature, including but not limited to value added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction, if any.
(f) “Intellectual Property” means all systems, applications, software code (in any form, including source code, executable or object code), original works of authorship, video, photographs, renderings, media, algorithms, tool-kits, technology, widgets, formulae, programs, concepts, work-arounds, databases, designs, diagrams, documentation, drawings, charts, ideas, inventions (whether or not such inventions are patentable), know-how, trademarks (whether registered or not), brand names, logos, slogans, methods, techniques, models, procedures, and processes.
(g) “Intellectual Property Rights” means all: (a) copyrights, (b) moral rights, (c) rights associated with works of authorship, (d) trademark rights, (e) trade name rights, (f) trade secret rights, (g) patent and industrial property rights (whether registered or not), and (h) other proprietary rights, in or to Intellectual Property.
(h) “Services” means the services to be provided by 360Pros to the Client as described in this Agreement and any Estimate(s) attached hereto.
All capitalized terms not otherwise set out in this section will have the meaning as set out in the section of this Agreement in which they are defined.
2. ESTIMATES AND PROVISION OF SERVICES
2.1. Provision of Services. 360Pros will provide the Services to the Client in accordance with the terms of this Agreement.
2.2. Location and Travel. Unless otherwise set out in any Estimate(s):
(a) 360Pros may, at 360Pros’s sole discretion, provide the Services remotely or on-site at the Client’s premises, or both; and
(b) in the event 360Pros’ personnel are required, in the opinion of 360Pros, to travel by automobile for the provision of the Services, the Client will pay to 360Pros a fixed travel expense of $0.55 per kilometer driven by the relevant 360Pros’ personnel to and from the destination, plus $30.00 per hour per person of travel time; all reasonable parking-related expenses will be reimbursed by the Client (even without prior written approval). Subject to the forgoing, the Client will reimburse 360Pros for reasonable water, rail, or air travel, and other business-related expenses incurred by 360Pros in performing the Services but only to the extent that the Client has expressly approved such expenses in writing in advance. Reimbursement of such reimbursable expenses shall be made by the Client from time-to-time upon submission by 360Pros of a statement itemizing the expenses incurred and such other satisfactory evidence requested by the Client acting reasonably.
2.3. Subcontractors. 360Pros’s may subcontract any aspect(s) of the Services without the consent of the Client, provided that 360Pros is liable for the obligations, actions, and omissions, of its subcontractors to the same extent such was performed directly by 360Pros. For purposes of this Agreement, all work performed by 360Pros’ subcontractors will be deemed work performed by 360Pros. 360Pros shall be Client’s sole point of contact regarding the Services, including with respect to payment.
3. WORKFLOW AND ACCESS
3.1. Client’s Obligations. Successful completion of the Services depends on the full commitment and participation of the Client. 360Pros’s performance of the Services is predicated on the following responsibilities being managed and fulfilled by the Client, at no charge to 360Pros. The Client will:
(a) Grant, or cause to be granted, all necessary consents and approvals reasonably necessary for any 360Pros personnel to enter and perform the Services on the real property and structures subject to the Services, including consents from any strata council, property manager, site supervisor, head contractor, landlord, local government, or other authority (including consents related to air space; however, 360Pros agrees to operate any flying devices, such as drones, in compliance with applicable law);
(b) Take reasonable steps to ensure that all Client personnel participating in the development or implementation of the Services are knowledgeable about the fundamentals of the Services being provided and not be contractors who are in a competitive industry with 360Pros;
(c) Appoint a representative to supervise and coordinate the Client’s performance of its obligations under this Agreement and on each Estimate. The representative will coordinate with 360Pros in a professional and prompt manner and will have the necessary expertise and signing authority to conclusively act on behalf of and bind the Client;
(d) Provide 360Pros with access to the Client’s systems, data, and documentation, as may reasonably be required by 360Pros to facilitate the provision of the Services;
(e) Be responsible for the content of any database, the selection and implementation of controls on access and use, backup and recovery, and security of stored data, including implementing any procedures necessary to safeguard the integrity and security of software and data accessed by 360Pros in the provision of the Services;
(f) Provide 360Pros with access to necessary personnel, as may reasonably be required by 360Pros;
(g) Provide appropriate direction, as requested by 360Pros; and
(h) Perform appropriate and timely testing as reasonably required by 360Pros.
3.2. 360Pros’s Obligations. 360Pros will provide the Services and Deliverables to the Client in accordance with high industry standards. 360Pros will determine the methods, details, and means of performing the Services, except as may be specifically identified in a particular Estimate. 360Pros will use reasonable efforts to perform the Services and provide the Deliverables by the dates set out in each Estimate.
3.3. Client Delays. In the event of any delays in the provision of the Services or the Deliverables or any part thereof that are attributable to the Client (“Client Delays”), 360Pros may:
(a) invoice the Client for Fees for Services provided to the Client to the date of such Client Delays;
(b) change its personnel allocated to the Services in order to meet its own business demands, provided that 360Pros will provide qualified individuals who are capable of continuing the Services in accordance with the specifications; and
(c) require further changes and delays to the timeline for the provision of the Services, in order to redeploy 360Pros’s resources, and the Client agrees that such further delays shall not constitute a default or delay by 360Pros.
4. PAYMENT TERMS
4.1. Terms of Payment. The Client will pay all Fees in accordance with the payment terms as set out in the Agreement. Unless otherwise provided in the relevant Estimate, 360Pros will invoice the Client periodically and the Client will pay the Fees in respect of such invoice within thirty days of the date of such invoice. All invoices are deemed accepted by the Client within five Business Days after they have been delivered to the Client. All amounts owing on account of past due invoices will incur interest at a rate of 1.5% per month, calculated monthly, being 19.56% annually when compounded (or if such interest rate is not permitted by applicable law, then the maximum interest rate permitted by applicable law), until such time as they are paid in full. Client shall be responsible for legal fees incurred by 360Pros for the collection of any unpaid invoices.
4.2. Fees. Fees for the Services and Deliverables shall be specified, or calculable in the applicable Statement(s) of Work or, if not in such Statement(s) of Work, the fees will be on a time and material basis at $125 per hour (in one-tenth of an hour increments) and any expenses or out of pocket costs will be reimbursed plus a mark-up of 30%, which will be incorporated into the applicable Estimate. Any changes to Fees or rates shall be specified in writing and must be agreed to by both parties, in advance, and, once approved, shall constitute a Change Order.
4.3. Deposits and Refunds. In the event the Client pays a deposit to 360Pros on account of any Estimate but 360Pros is unable or unwilling to commence such work, then 360Pros will return the deposit less any accrued Fees or expenses. In the event the Client pays a deposit to 360Pros on account of an Estimate but the Client requests to withdraw or otherwise not commence such work, before 360Pros starts any such work, then 360Pros may at its option retain the deposit as liquidated damages as its sole remedy.
In the event either 360Pros or the Client requires a material change to the scope of work, the timeline, the Services, the Deliverables, or the Fees, the party requesting such change shall communicate such change to the other party, in writing, and will provide the other party with a reasonable opportunity to assess the impact of such changes. If the parties agree to such changes, such acceptance will be evidenced in writing by way of a mutually executed change order which will be incorporated into this Agreement. Neither party will be required to agree to any changes that materially change the Services or have a material impact on the business of the party.
6. DEPLOYMENT AND ACCEPTANCE
6.1. Deployment. For each Estimate, to the extent deployment of Deliverables is required, 360Pros and the Client shall set a mutually agreeable deployment schedule in accordance with the following:
(a) All deployments will be between 8:30 am and 6:00 pm local time in the region where 360Pros’ deployment team is situated, on Business Days (“Standard Deployment Hours”). In the event the Client requires deployment outside of Standard Deployment Hours, the Client may request such deployment by way of a Change Order.
(b) 360Pros and the Client shall use reasonable efforts to set a deployment schedule: (i) at the commencement of the Services; or (ii) if 360Pros and the Client are unable to set a deployment schedule at the commencement of the Services, at least two weeks in advance of its anticipated deployment date; or (iii) in all other cases, on such other date as 360Pros may decide, provided that 360Pros will consult with the Client when setting a deployment schedule and will take into account the Client’s desired dates; and
(c) In the event the Client requires a change to the deployment schedule, the Client shall notify 360Pros no later than 15 days prior to the scheduled deployment date, failing which the Client shall be responsible for the Fees for deployment as though 360Pros had performed the deployment on the scheduled deployment date, in addition to the Fees as may be required for redeployment.
6.2. Acceptance. Unless otherwise set out in each Estimate, the Client’s acceptance of the Services and the Deliverables shall be deemed to occur at the time 360Pros has, in its reasonable opinion, completed the Services and notified the Client that it has completed the Services or provided the Deliverables (as applicable) unless: (a) the Client has commercially reasonable grounds for rejecting the Services or Deliverables, on the basis that such Services or Deliverables do not materially conform with the requirements set out in the relevant Estimate; and (b) the Client provides written notification (the “Client Notice”) to 360Pros of such rejection within five Business Days of when 360Pros has notified the Client that it has, in its reasonable opinion, completed the Services or provided the Deliverables (as applicable); and (c) any such Client Notice contains a list of deficiencies with sufficient details to permit 360Pros to remedy such deficiencies. Upon receipt of such Client Notice, 360Pros shall have a reasonable period of time to remedy such deficiencies, taking into account the significance of such deficiencies relative to the scope of the Services and / or Deliverables.
7. LIMITATION OF LIABILITY
7.1. As part of the Services, 360Pros may leverage software (such as Matterport software) developed by third parties (“Third Party Developers”). The Client acknowledges and agrees that 360Pros is not such Third Party Developers and is not an affiliate of such Third Party Developers and that 360Pros makes no representations or warranties regarding Third Party Developers or their software, to anyone, express, implied or statutory (including warranties of design, operation, or fitness for any use or purpose). No representation or warranty by such Third Party Developers are binding on 360Pros nor shall breach of such warranty relieve the Client of its obligations to 360Pros. Third Party Developers may require the Client to enter into license agreements or pay license fees for the use of their software which, unless expressly set out in a Estimate, are not included in the Fees. There may be circumstances whereby Third Party Developers make changes to the software upon which the Services or Deliverables are based (“Third Party Software Changes”). Except as expressly set out in a Estimate, 360Pros will not be responsible for any fixes, patches, or replacement work that may be required for the Deliverables to function properly as a result of such Third Party Software Changes.
7.2. 360PROS SHALL NOT BE LIABLE TO THE CLIENT FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR GOOD WILL, WORK STOPPAGE, LOSS OF INFORMATION OR DATA, OR LOSS OF REVENUE OR PROFIT, RESULTING FROM THE PROVISION OF THE SERVICES OR THE USE BY THE CLIENT OF THE DELIVERABLES OR THE RELIANCE UPON THE DELIVERABLES, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THE DELIVERABLES, REGARDLESS OF THE LEGAL THEORY ASSERTED, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE. EVEN IF 360PROS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, 360PROS’ AGGREGATE AND TOTAL LIABILITY UNDER THIS AGREEMENT FOR ANY AND ALL CLAIMS ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED AMOUNTS PAID OR DUE BY THE CLIENT TO 360PROS UNDER THIS AGREEMENT IN THE YEAR IN WHICH THE CLAIM AROSE. DAMAGES SET FORTH IN THIS SECTION 7.2 IS THE CLIENT’S SOLE EXCLUSIVE MONETARY REMEDY AND THE SOLE AND EXCLUSIVE ALTERNATIVE REMEDY IN THE EVENT ANY OTHER REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7.3. Other than explicitly set out in this MSA or any Estimate, the Services and each deliverable is provided “as is” and all warranties whether express, implied, statutory or otherwise, relating in any way to the Services are disclaimed, including, warranties as to quality, reliability, uptime, uninterrupted use. For greater certainty, 360Pros is not liable for (a) measurement or dimensional inaccuracies or (b) representational inaccuracies, of any renderings or deliverables.
8. INTELLECTUAL PROPERTY
8.1. All Intellectual Property contained in the Deliverables or made available or disclosed to the Client, as part of the Services under any Estimate or otherwise or that is contained in past deliverables or services provided by 360Pros to the Client (collectively, “360Pros’ Intellectual Property”), and all Intellectual Property Rights in 360Pros’ Intellectual Property are and will remain the sole and exclusive property of 360Pros and except for the license to use 360Pros’ Intellectual Property pursuant to section 8.2 of these Terms and Conditions, the Client is granted no right, title, or interest in 360Pros’ Intellectual Property.
8.2. 360Pros grants to the Client a worldwide, perpetual, non-exclusive royalty free license (the “License”) to use 360Pros’ Intellectual Property solely for the Client’s marketing and business development purposes as part of the Deliverables or as part of any systems implemented by 360Pros in the provision of the Services. Other than the License, no ownership or license in any 360Pros’ Intellectual Property will be granted to the Client and, for greater certainty, but without limitation, the Client shall not be granted any rights to license, sub-license, sell, assign, transfer, or grant 360Pros’ Intellectual Property to any third parties without the prior express written consent of 360Pros.
8.3. All Intellectual Property that was owned by or developed by or acquired by the Client or its Affiliates separate from this Agreement and without any use of the Services, Deliverables, or 360Pros’ Intellectual Property (collectively, “Client Intellectual Property”) will remain the exclusive property of the Client. No rights of any kind shall be granted to 360Pros in the Client Intellectual Property except as expressly granted in this Agreement.
9. CONFIDENTIAL INFORMATION
9.1. For the purposes of this Agreement, “Confidential Information” means any information that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in the course of 360Pros providing the Services to the Client and that a reasonable person would consider to be confidential in the circumstances. Confidential Information includes, but is not limited to, the parties’ business information, customer information, trade secrets, the terms of each Estimate, and personal information of the parties’ employees, contractors and customers. Confidential Information does not include any information that is disclosed by one party to another party if that information: (a) is at the time of disclosure in the possession of the Receiving Party or any of its Affiliates and was obtained without an obligation of confidence; (b) is independently developed by the Receiving Party or any of its Affiliates without any use of or reference to the Confidential Information; (c) is or becomes publicly available without breach of any obligation of confidence; (d) is acquired by the Receiving Party from a third party who provided the information without breaching any express or implied obligations or duties to the Disclosing Party; or (e) is intentionally released for disclosure by the Disclosing Party or with the Disclosing Party’s prior written consent.
9.2. Each of 360Pros and the Client agree with the other that it shall:
(a) take all reasonable steps to maintain the confidentiality of the other party’s Confidential Information;
(b) not copy the Confidential Information except as may reasonably be required by 360Pros in the provision of the Services;
(c) not use the Confidential Information for its own purposes;
(d) safeguard all documents containing Confidential Information against theft, damage or access by unauthorized persons;
(e) use the same degree of care with respect to the Confidential Information as it employs with respect to its own proprietary or confidential information of like importance; and
(f) except as required by law or a valid court order, and subject to the Receiving Party informing the Disclosing Party of such legal requirement, the Receiving Party will only disclose such Confidential Information to those directors, officers, employees or agents (“Receiving Parties’ Personnel”) who need to know in order to perform their obligations under this Agreement. The Receiving Party will ensure that the Receiving Parties’ Personnel who need to know the Confidential Information agree to maintain the confidentiality of such Confidential Information on terms no less stringent than the terms of these herein confidentiality provisions.
9.3. Notwithstanding anything to the contrary, unless otherwise expressly set out in an Estimate, 360Pros may use the name, logo, identifying description of the Client, and identifying description of the Services (namely, photos, rendering, and graphics that are Client Intellectual Property) in its list of customers and 360Pros may generally make known the relationship between 360Pros and the Client, provided that 360Pros does not disclose any financial or proprietary details of the Services. In the event the Client has brand guidelines and notifies 360Pros of those brand guidelines, 360Pros will only use the Client’s name and logo in accordance with the Client’s brand guidelines.
10. TERM AND TERMINATION
10.1. The Term of this Agreement commences on the Effective and, subject to this Agreement, continues until the later of (a) three years from the Effective Date; or (b) two years after the conclusion or termination of an Estimate.
10.2. Either party may immediately terminate the provision of the Services if the other party:
(a) is in breach of its confidentiality obligations under this Agreement;
(b) is or becomes insolvent or bankrupt, becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law, has a receiver, administrator or manager appointed, makes an assignment for the benefit of creditors or takes the benefit of any applicable law or statute in force for the winding up or liquidation of corporations; or
(c) is in material breach of this Agreement (including, without limitation, failure to pay the Fees) and such breach has not been cured within thirty (30) days of the provision of notice of such breach to the breaching party.
10.3. Upon termination of the Services under this Agreement, each party will immediately, upon written request from the other party, return to the other party or destroy all Confidential Information of the other party in its possession or control.
10.4. The covenants contained in this Agreement under parts 4, 7, 8, 9, 11, and this part shall survive the termination of the provision of the Services and the Client hereby acknowledges and agrees that the provisions of and all restrictions contained in this Agreement are reasonable and are necessary for the protection of the parties’ legitimate interests and proprietary rights and are an essential condition of this Agreement.
During the term of this Agreement, and for a period of twelve (12) months after completion of the Services thereunder, neither party will, without the prior written consent of the other party, directly or indirectly, either alone or in conjunction with any individual, firm, corporation, association or other entity, approach, solicit or attempt to solicit the employment of any employee of the other party who has been employed by the other party at any time on or after the Effective Date. For greater certainty, an employee of a party responding to a general advertisement for an employment position shall not, in and of itself, constitute a breach of this section. In the event of a breach of this section, the breaching party acknowledges and agrees that monetary damages may not be an adequate remedy to compensate for such breach and accordingly that, in addition to any and all other remedies available under this Agreement or at law or in equity, the non-breaching party shall be entitled to seek relief by way of a temporary or permanent injunction to enforce such obligations.
12. FORCE MAJEURE
Neither party to this Agreement shall be liable for any failure to comply with its obligations under this Agreement if the failure to comply is caused by or results from conditions or causes beyond its reasonable control including, but not limited to: shortage of water, power, facilities, materials and supplies, breakdowns in or the loss of production, acts of God, war, terrorism, mobilization, strikes, lockouts, labour controversies, riots, fire, flood, explosion, governmental controls or regulations, embargoes, wrecks or delays in transportation, labour disputes, civil insurrection, civil or military authority, inability to obtain necessary labour, materials of manufacturing faculties due to such causes or delays of subcontractors or supplies of each party in furnishing materials or supplies due to one or more of the foregoing causes. In an event of a force majeure, each party shall be allowed a reasonable period of time to fulfill the obligations under this Agreement having regard to the applicable circumstances.
13.1. Headings. The headings used in the Agreement are for convenience and reference only and shall not affect the construction or interpretation of this Agreement. The term “this part” when used herein shall mean the entire part, including sections and subsections within that part, unless inconsistent with the context of such use.
13.2. Currency. Except where otherwise expressly provided, all monetary amounts in this Agreement are stated and shall be paid in CAD currency.
13.3. Relationship of the Parties. The parties are independent contractors. This Agreement shall not be construed as creating any partnership, joint venture, or agency among the parties and no party shall be deemed to be the legal representative of any other party for the purposes of this Agreement. No party shall have and shall not represent itself as having, any authority to act for, to undertake any obligation on behalf of any other party, except as expressly provided in this Agreement.
13.4. Gender, Plural and Singular. In this Agreement, unless the context otherwise requires, the masculine includes the feminine and the neuter genders and the plural includes the singular and vice versa, “or” is not exclusive and “including” is not limiting, whether or not such non-limiting language (such as “without limitation” or “but not limited to”) is used with reference to it, and modifications to the provisions of this Agreement may be made accordingly as the context requires.
13.5. Alterations. No alteration or amendment to this Agreement shall take effect unless it is in writing duly executed by each of the parties.
13.6. Proper Law of Agreement. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein, and the parties agree to attorn to the exclusive jurisdiction of British Columbia.
13.7. Invalidity. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision and any such invalid or unenforceable provision shall be deemed to be severable.
13.8. Notices. Any notice, payment or other communication required or permitted to be given or served pursuant to this Agreement shall be in writing and shall be delivered personally or forwarded by registered mail to the party concerned at the address specified in this Agreement, or to any other address as may from time to time be notified in writing by any of the parties. In the case of 360Pros, any such notices must also be carbon copied to firstname.lastname@example.org. Any notice, payment or other communication shall be deemed to have been given on the day delivered, if delivered by hand, and within four Business Days following the date of posting, if mailed; provided that if there shall be at the time or within four Business Days of mailing a mail strike, slow-down or other labour dispute that might affect delivery by mail, then the notice, payment or other communication shall be effective only when actually delivered.
13.9. Entire Agreement. The provisions of this Agreement constitute the entire agreement between the parties and supersede all previous communications, representations and agreements, whether oral or written, between the parties with respect to the subject matter of this Agreement.
13.10. No Strict Construction. The language in all parts of this Agreement shall in all cases be construed as a whole and neither strictly for not strictly against any of the parties to this Agreement.
13.11. Assignment. Except with written consent of the other party, neither party may assign any of their respective benefits, obligations or liabilities under or in respect of this Agreement, provided, however that: (a) 360Pros may assign this Agreement to an Affiliate of 360Pros, at its sole discretion; and (b) either party may assign this Agreement, in its entirety, in the event of sale of all or substantially all of its assets or a merger or acquisition. No assignment shall relieve the assigning party of any of its obligations hereunder.
13.12. Enurement. This Agreement shall enure to the benefit of and be binding upon the parties and, except as otherwise provided or as would be inconsistent with the provisions of this Agreement, their respective heirs, executors, administrators, successors and permitted assigns.
13.13. Counterparts. This Agreement may be signed by the parties in as many counterparts as may be necessary, each of which so signed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile or electronic mail. An executed copy of this Agreement delivered by facsimile or electronic mail will constitute valid execution and delivery.