Terms & Conditions

V 1.2

Jan 28, 2020​

Basic Contracting Terms

Payment Terms

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Upon acceptance of this agreement, all fees shall be billed on a monthly basis over the lifetime of the Project.

Payment of invoices shall not be subject to, or related to, invoicing of services to a third party.

All fees invoiced will be net payments, payable in United States dollars, and drawn on a United States Bank or branch therein.  Any and all associated customs, excise tax, wire transfer fees, or similar fees will be paid by the Client.

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If preferred, the payments may be wire transferred to Consultant's bank within thirty (30) days of receipt of invoice, if transferred separately; expense reimbursement shall be wired prior to each trip, whenever possible. The Client is responsible for all wire transfer fees associated with using this payment option.

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The Client recognizes that prompt payment of Consultant's invoices is an essential aspect of the overall consideration. Please note that invoices are due upon receipt and considered past due after 30 days (Net 30).

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If the Client fails to make any payment when due, Consultant may, upon written notice to Client and without penalty, suspend performance of services under this Agreement.

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 Invoices that are 15 days past due will result in written notice of intent to stop work. Invoices that are 30 days past due will result in written notice of all work stopping until payment is received in full. In the event of a suspension of services, Consultant shall have no liability to Client for delay or damage caused because of such suspension of services.

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All amounts unpaid thirty days after the issue date of the invoice shall accrue interest at a rate of one and one-half (1-1/2%) percent per month.

Consultant must be notified of any discrepancies or disputes on invoices within ten (10) business days from the date of invoice; otherwise the invoice is assumed to be approved for payment and considered due within agreed terms. Notification must be in writing and state reason for dispute.

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No deductions shall be made from Consultant's compensation on account of penalty, liquidated damages or other sums withheld from payments to contractors, or on account of the cost of changes in the work other than those for which the Consultant has been found to be liable.

Consultant shall be entitled to recover reasonable attorney fees and costs incurred in the collection of any amounts past due.

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Reimbursable Expenses

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Client shall reimburse Consultant for any and all expenses of Consultant associated with the Project ("Reimbursable Expenses"), including, but not limited to:

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• Mileage, local ground and air transportation, hotel and per diem expenses, airport taxi, airport parking, and applicable departure taxes, freight costs, communications, web-based software licenses, postage, long distance telephone, teleconferencing service charges, photocopying, printing reproductions, photographic supplies and processing, study model materials, perspective sketches and renderings, mockup supplies, delivery, courier services and reprographic charges if hard copy drawings are not provided by Client as required to produce required documentation.

• Airfare for site visits within the contiguous United States is unrestricted economy class or better, unless it is the first or last leg of an international trip, then it is unrestricted business class or better.  Airfare for international travel (outside the contiguous United States and North America) is to be unrestricted business class or better. Hotels must have a minimum of three-star rating or better. Rental cars must be intermediate size or larger at a minimum, and shall include insurance coverage and a full tank of gas.

• All international site visit arrangements, paid for by Consultant, must be reimbursed prior to the commencement of the trip.  Any trips, approved and booked but not taken due to lack of timely reimbursement, will be passed through and invoiced as additional reimbursable expenses to the Client and considered due within agreed terms.

• Per Diem shall be billed for all days a team member is out of their home office; inclusive of days off during site work and days associated with travel and/or site visits. Per Diem is billed according to the current US government rates, unless otherwise negotiated. These rates will be adjusted accordingly over the lifetime of the Project.

• Extraordinary Expenses are those items which are considered extraordinary to the basic design service and include, but are not limited to, computer-generated modeling, computer-generated rendering, physical models and samples or samples required for mockup which will not be returned to the manufacturer.  All Extraordinary expense items must be approved in writing prior to procurement or commencement of associated services.

• Costs for any one-time or annual licenses for web based communication tools required by the owner or design team is not included in the design fees and will be paid by the Owner, Client or reimbursed to Consultant for the duration as required for the Project. This includes, but is not limited to, Dropbox, Web-Ex, BaseCamp, e-Builder, Buzzsaw or other such document management website licenses.

• Receipts for all Reimbursable Expenses will be submitted along with invoices for each phase of the Project. Reimbursable expenses, with the exception of transportation charges are billed at direct cost. Invoices for services from third parties may be forwarded to the Client for direct payment.  All reimbursable expenses in excess of $5,000 shall be pre-approved by Client in writing.

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Rate Schedule

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Project fees are quoted based on the requirements of each Project and can be arranged on an hourly, flat rate or not - to exceed basis.  All fees for additional services will be billed at current hourly rates in effect at that time and are payable separate from the basic service fees.

Straight-time hourly rates and day rates shown above include the first 10 hours worked in a day and assume a minimum of a 10 hour turnaround (time between shifts).

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Work weeks are defined as the first 5 days worked in a given week.

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There is a premium charge for all work weeks defined as 6 or more consecutive days and turnarounds less than 10 hours.

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All additional hours will be billed at one and one-half (1-1/2) times the applicable hourly rate for hours 11 & 12 and double-time for hour(s) 13+.

Site Visit time and/or Travel Days (outside designer's headquarters location) are billed at a minimum of a full day and no overtime will be billed, unless work is over 10 hours.

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Rates will not change without prior written notification.

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As noted above in the payment section:  All fees for hourly/ daily work invoiced will be net payments, payable in United States dollars, and drawn on a United States Bank or branch therein.

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Project Assumptions & Exclusions

Assumptions:

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The fee is based on the Consultant anticipating carrying out the study, planning, design and review parts of the Basic Services in the Forward Thinking Designs office, located in Ocoee, Florida.

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All additional meetings/site visits and owner presentations will be handled on a time-and-materials basis and will be billed according to the rate schedule shown above, unless otherwise negotiated.

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The Client must notify Consultant at least three (3) weeks in advance of any requested site visit time, whenever possible, to ensure Consultant’s availability.

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Revisions to design concepts, materials and/or physical changes to plans after each release has been submitted will be integrated into the subsequent Design Release, unless negotiated otherwise.

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Multiple smaller releases, revisions, or additional design releases will be subject to additional fees and be billed accordingly.

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Exclusions:

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This proposal does not include Theatrical Rigging, Rigging System Design or Consultation in regards to Rigging.

Consultant does not prepare stamped construction documents, as this is the scope of the architect and electrical engineer.

Preparation of Project Team Meeting Minutes, other than those required for our own internal purposes.

Mobilization fees for a full-time, on-site presence at any point in the Project, at the Client's request.

Consultant shall not be responsible for all coordination, liaison with concerned statutory/municipal authorities for licenses, permits and/or any other information in the context of the Project, as this is the responsibility of the Project Engineers, Architects and Contractors.

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Electronic Information Transfer

Document Transmittal

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Consultant shall work with the Client to facilitate transfer of electronic drawing information via e-mail, FTP site, WeTransfer, Dropbox or similar web based program.

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Fees are based upon receipt by Consultant of all relevant base drawings in AutoCAD.  Any work to convert hand drawings to electronic format will be billed to Client at current hourly rates for such work, in addition to basic services.

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Client is expected to maintain file names and file path information during the Project.  Any work to convert file names or path information will be considered additional services.

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Clients Responsibilities

Furnish Project Information

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Client shall furnish to Consultant, at no expense to Consultant, accurate and complete information relating to the requirements of the Project, including but not limited to, meeting minutes, drawings, specifications, services, surveys, reports and programmatic material both current and preceding engagement of Consultant. Consultant shall be entitled to rely on the accuracy and completeness of any and all such Project information. All information must be furnished in a timely fashion.

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Client will confirm and identify all drawings to be used as design base sheets, prior to the commencement of each design phase and at minimum, two (2) weeks prior to the end of each design phase.

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Client will provide exact file name, release date and access to FTP site location for electronic copy.

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Construction Documents

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Client is aware and in agreement that Consultant's documentation is for the purposes of showing design intent and reference only. Client must engage the necessary architects and engineers to generate the construction drawings for building the Project. Consultant will review the Construction documents for design-intent upon their release to the Project team by the licensed engineers and architects.

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The Project Architect, Contractors and Electrical Engineers are allowed to incorporate and coordinate the work of the Consultant within their drawings for plan check and construction as required, but are prohibited from altering or omitting any information without permission from Consultant.

Consultant will coordinate with architect and electrical engineer and review documents prepared by the architect and engineer to verify conformity to design intent.

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Local and National Codes Ordinances and Design Criteria

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Client will provide all local and national codes, ordinances and design criteria relevant to the development of the lighting design at commencement of the Project.

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Site Visit / Meeting Notification

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The Client must notify Consultant at least three (3) weeks in advance of the requested site visit time, whenever possible, to ensure Consultant’s availability.

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Awarding Project

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By awarding the Project to the Consultant, the Client is agreeing to the terms and conditions of this proposal and all associated additional services requests.

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Coordinate Project Work

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Client shall properly and promptly coordinate work on the Project and shall facilitate the distribution of necessary Project information among other consultants retained by the Client for the Project in a timely manner.

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Review Documents

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Consultant's scope of work does not include the review of all design documents for conformance to any and all local and national code, standard or practice. Should inconsistencies be promptly brought to the attention of Consultant, Consultant may recommend changes.

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Project Funding

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Client shall warrant the Project is fully funded.

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Internet Access

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The Client shall provide a high-speed Internet connection available to Consultant while its personnel are on-site.

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Responsibility For Delay

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Failure of Client to distribute necessary Project information, to properly and promptly coordinate work on Project, and to provide for review of all lighting documents, which causes delays or changes in the lighting design work, through no fault of Consultant, will relieve Consultant of any obligation to meet Project schedule to the extent of any such delay and may result in additional fees if schedule of services is accelerated.

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Non-Solicitation of Forward Thinking Designs Employees

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During the term of this Proposal and for three (3) years thereafter, Client shall not encourage any employee, agent, or client of Consultant to terminate or modify such employee’s, agent’s or client’s relationship with Consultant.

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General Provisions

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Relationship Of Parties

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Consultant's relationship with the Client under this Agreement is that of advisor and consultant. Neither Consultant nor its staff scope of work licensed to practice (nor do they practice) scope of work an architect, engineer, electrical consultant, contractor or electrician under the laws of the State of Florida.

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Changes To Scope of Work

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Client may, at any time, request to revise the scope of work and request additional services to be performed. Such requests may require additional fees or changes to the Project schedule.  All requests must be in writing and must be approved in writing by both the Consultant and Client prior to the commencement of any efforts related to the requested changes.

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Scheduling

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Consultant has established its work plans based on the schedule shown in the RFP and the Fee breakdown section above. Substantial accelerations and/or delays in scheduling, through no fault of Consultant, may require a re-negotiation of deliverables to be provided and/or additional fees and/or expenses. In the event of an acceleration or extension of the approved schedule for performance of the Services (other than as a result of any errors, omissions, negligence, deficiencies , defects, failures or default on the part of the Consultant or its personnel or sub-consultants), the Client will agree to pay to the Consultant any proven, reasonable actual costs incurred by the Consultant wholly and exclusively by reason of such extension. The Consultant agrees to take all reasonable action to mitigate its costs in case of such extension. Costs will be billed according to the additional services rate schedule and reimbursable expense terms within the agreed terms.

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Termination

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Either party may terminate this Agreement with 10 days written notice to the other mailed first class postage and shall be considered in effect three (3) days after postmark. Overnight notices are in effect upon receipt. In the event the Client acts in any manner to halt work on this Project or does, by its actions, postpone necessary interaction for its timely continuance, Consultant may determine after written notice to Client, a lack of good faith and discontinue work. Consultant will immediately be compensated for all work to date and dispose of materials in production as the Client specifies.

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Termination, Suspension or Abandonment For Convenience

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Should the Client terminate the agreement for convenience, the Client will pay all sums due to Consultant through the effective date of the termination and for the incremental direct costs reasonably incurred by Consultant in complying with the termination notice (less any costs that could be mitigated by Consultant) as well as the direct costs associated with any required demobilization efforts. In addition to the sums due to Consultant through the effective date of the termination and for the incremental costs reasonably incurred by Consultant in complying with the termination notice (less any costs that could be mitigated by Consultant), upon reasonable request by Consultant, Client shall issue a directive for the mutually-agreed upon direct costs reasonably necessary for Consultant to conduct demobilization efforts. The demobilization costs shall be submitted by Consultant for approval as an additional services request prior to being incurred and will include all time between the effective date of termination and receipt of approval to demobilize through to an agreed upon demobilization date.

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Consequences Of Termination, Suspension Or Abandonment

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In any event of termination, suspension or abandonment of the Project, Consultant shall immediately be paid in full for any and all services performed prior to receipt of written notice from Client of such termination, suspension or abandonment, and any and all Reimbursable Expenses incurred prior to such date. If the Project is resumed after being suspended or abandoned for more than three (3) months, Consultant's compensation shall be subject to renegotiation.

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Publication and Photography

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Upon receiving permission from the Project Owner, consultant has the right to photograph the installed design and represent it in published or promotional materials as work done for the Project. The Client shall not use Consultant's name in connection with any advertising, publicity, or other public reference to the Project without Consultant's consent. Fees for photographic services performed under this paragraph shall not be considered reimbursable expenses. Professional photography of the completed Project taken by the Client or a third party engaged by Client shall make available such photography to Consultant for promotional purposes at cost.

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Ownership Of Documents

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All documents prepared by Consultant are instruments of service and shall remain the exclusive property of Consultant until such time payment has been made in full and then the documents will become the exclusive property of the Client. Such documents are not to be used by Client in any manner, including, but not limited to, other Projects or extensions of this Project without an agreement in writing with Consultant providing for compensation to Consultant.

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Indemnification and Insurance

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Consultant shall carry worker's compensation insurance on employees. General liability insurance shall also remain in force for the duration of this Agreement in an amount no less than $1,000,000. Worker's compensation limits shall be statutory. Professional errors and omissions insurance shall remain in force for the duration of this Agreement in an amount no less than $1,000,000.

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Client shall indemnify and hold Consultant and its employees and agents harmless from and against any claims, demands, loss, cost, liability, damage or expense, including without limitation reasonable attorneys' fees, of Client or any third party in connection with or arising out of the Design Services performed for Client by Consultant pursuant to and within scope of this Agreement.

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Errors And Omissions

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Consultant shall not be responsible for the acts, errors or omissions of Client, the Owner of the Project if other than Client, and employees or agents of Client or Owner. Consultant shall not be responsible for the means, methods, techniques, sequences or procedures on construction, fabrication, procurement, shipping, delivery or installation, or for acts, errors or omissions of Client, Owner, Client's or Owner's consultants, contractors, subcontractors, or any of their agents or employees, or manufacturers, suppliers or shippers of equipment, or any other persons performing any of the work, or for the failure of any person to carry out the work in accordance with the contract documents and specifications.

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Liability Limitations

Consultant is not responsible for any changes, including but not limited to, substitutions of or by manufacturers, substitutions by contractors, variations in layouts. Failure of the Client to promptly coordinate work scheduling and related information that causes delay or changes in the consultation work will relieve Consultant of its obligations to meet the Project schedule to the extent of the resulting delay or change.

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Notices

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All notices under this Agreement shall be in writing and shall be conclusively deemed to have been duly given: (a) when hand delivered to the other party; or (b) when sent by facsimile to the number set forth below the parties’ signatures, but any notice given by facsimile shall be deemed received on the next business day if such notice is received after 5:00 p.m. (recipient's time) or on a nonbusiness day; or (c) four (4) business days after the notice is deposited in the United States mail, first class or certified mail return receipt requested, postage prepaid, addressed to the party to be notified at the address set forth after the party's signature; or (d) the delivery day shown on the confirmation from the carrier if the notice is deposited with a national overnight delivery service such as Federal Express, UPS or DHL Worldwide Express, postage prepaid, addressed to the parties as set forth below.  A party may change its addresses for notice by giving the other party written notice of the new address in the manner set forth above.

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Counterparts

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This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement shall not be effective until the execution and delivery between each of the parties of at least one set of counterparts. The parties authorize each other to detach and combine original signature pages and consolidate them into a single identical original. Any one of such completely executed counterparts shall be sufficient proof of this Agreement.

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Severability

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Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision of the remaining provisions of this Agreement.

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Amendments

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This Agreement constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement and supersedes all prior agreements whether oral or written. Any amendment, change or addition to this Agreement, including an oral modification supported by new consideration, must be reduced to writing and signed by both parties before it will be effective.

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Further Acts

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Each party agrees to take such further action and to execute and deliver such further documents as may be necessary to carry out the purposes of this Agreement.

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Time Is Of The Essence

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Each covenant herein is a condition and time is of the essence with respect to the performance of every provision of this Agreement.

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Authority

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If either party hereto is a corporation, limited liability company, trust, or general or limited partnership, each individual executing this Agreement on behalf of such entity represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of said entity.

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Waiver

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The waiver of any provision of this Agreement shall be valid only if evidenced by a writing signed by the party making the waiver.   The waiver of, or failure to enforce, any provision of this Agreement shall not be a waiver of any subsequent breach of such provision or of any other provision hereof. The waiver by either or both parties of the time for performing an act shall not constitute a waiver of the time for performing any other act or identical acts required to be performed at a later time.