EXHIBIT 10.1
AMENDED AND RESTATED FIELD SERVICE AGREEMENT
This Amended and Restated Field Service Agreement dated and
effective as of January 1, 2004 (as the same may be supplemented, modified,
amended, restated or replaced from time to time in the manner provided herein,
this "Agreement"), is by and between SPAR Marketing Services, Inc., a Nevada
corporation ("SMS"), and SPAR Marketing Force, Inc., a Nevada corporation (the
"Company"). SMS and the Company may be referred to individually as a "Party" and
collectively as the "Parties".
Recitals
SMS and the Company are parties to a Service Agreement dated
as of January 4, 1999 (as the same may have been supplemented, modified,
amended, restated or replaced from time to time in the manner provided therein,
the "Existing Service Agreement"), pursuant to which SMS has provided and
currently provides certain field representative, scheduling and management
services to the Company and (through the Company) SPAR Group, Inc., and its
subsidiaries (together with the Company, each a "SPAR Company" and collectively
the "SPAR Companies"), which scheduling and management services have been
delegated to and performed by its affiliate, SPAR Management Services, Inc.
("SMSI"). SMSI will now enter into a direct agreement with the Company
respecting such scheduling and management services. The Company and SMS have
agreed to update the terms and conditions on which SMS will continue to provide,
on a nonexclusive basis, the field representative services described below on
behalf of the SPAR Companies with respect to in-store merchandising and related
services at the stores and other locations of the customers of the SPAR
Companies as a SPAR Company may from time to time request (collectively,
"Stores") within the continental United States and Canada and such other places
as they may mutually agree (the "Territory"), all upon the terms and provisions
and subject to the conditions hereinafter set forth.
Agreement
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the Parties, the
Parties hereto hereby agree as follows:
Section 1. Term. This Agreement shall commence upon the date
hereof, and shall continue through December 31, 2007, and shall be automatically
renewed and continue for additional one year periods thereafter (the "Term"),
unless and until (a) either Party gives the other written notice at least sixty
days prior to December 31 of any year (commencing in 2007) of its desire to not
renew this Agreement, or (b) this Agreement is sooner terminated pursuant to
Section 5 hereof.
Section 2. Merchandising and Related Services. During the
Term, SMS shall stock, restock and replenish merchandise and perform other
merchandising and related activities and services requested from time to time by
the Company (the "Merchandising Services") in Stores within the Territory on
behalf of the Company and the Company's affiliates as they may from time to time
request for themselves or their customers, and (b) all related services
(together with the Merchandising, the "Services"). Any merchandise needed for
the Merchandising Services shall be delivered to the Stores (or at such other
location as may be mutually agreed upon by the Parties with respect to any
particular task) from time to time by or on behalf the Company or the applicable
customers, all at no cost and expense to SMS. The Company and SMS shall in good
faith establish and implement mutually acceptable procedures for the scheduling
and coordination of the performance of the Services.
Section 3. Cost Plus Compensation. Except as otherwise
provided in the second and third sentences of this Section 3, the Company shall
compensate SMS for the performance of the Services for the SPAR Companies in an
amount equal to (a) all costs and expenses reasonably incurred by SMS in
performing the Services for the SPAR Companies pursuant hereto, including
(without limitation) any and all independent contractor payments, wages and
other employment costs of all personnel, travel and other reimbursable field and
administrative out of pocket costs and expenses, purchases of equipment and
supplies, depreciation and amortization, courier, postage and special mailing
charges, rent, utilities, and other overhead (the "Services Costs"), plus (b)
four percent of the sum of the items in clause (a), above (collectively with the
Services Costs, the "Services Compensation"); provided, however, that the
Services Costs shall include any payroll and employment taxes payable to field
employees with respect to Services performed after the date hereof. The Company
and SMS acknowledge and agree the stockholders of have entered into a Limited
Indemnification Agreement dated as of July 8, 1999 (the "Indemnity Agreement")
in connection with the consummation of the transactions contemplated by the
Merger Agreement (as such term is defined in the Indemnity Agreement).
Notwithstanding the provisions of
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this Section 3 or any other provision of this Agreement, the Company shall not
be required to compensate SMS for or otherwise pay or reimburse (and Services
Costs shall not include) any amount with respect to which the stockholders of
SMS (i) would have been required to indemnify, defend and hold harmless any
Merger Party (as such term is defined in the Indemnity Agreement) pursuant to
the Indemnity Agreement were it executed and effective as of the date of this
Agreement, or (ii) are required to indemnify, defend and hold harmless any
Merger Party pursuant to the Indemnity Agreement after it is executed and
becomes effective (collectively, "Indemnified Amounts").
Section 4. Payments. The Company shall pay to SMS by wire
transfer a monthly retainer of $250,000 (as adjusted from time to time by the
mutual agreement of the Parties) on or before the first of each month on account
of the Services Compensation respecting the estimated administrative and
overhead costs of performing the Services (i.e., the Services Compensation other
than the field personnel costs). SMS shall invoice the Company weekly for all
field personnel costs, and such invoices shall be paid by the Company by wire
transfer to SMS within two business days after receipt thereof. SMS may from
time to time, and at least once per quarter shall, reconcile the retainer and
field personnel payments and invoice the Company for any shortfall, or credit
the Company's future invoices for any excess, in the Services Compensation
received by SMS during the calculation period. The Company shall have the right
at its own cost and expense to audit such costs and expenses from time to time
upon reasonable notice to SMS, provided that the audit shall be conducted in a
manner that is not unreasonably disruptive of SMS's business.
Section 5. Early Termination. Notwithstanding any provision to
the contrary contained herein, either Party shall have the right to terminate
this Agreement: (a) at any time for any reason or no reason upon six (6) months
prior written notice to the other Party; (b) upon ten (10) business days prior
written notice to the other Party in the event such other Party material
breaches this Agreement and fails to cure such breach within thirty (30) days
after notice of such breach from the terminating Party; or (c) upon ten (10)
business days prior written notice from the terminating Party to the other Party
in the event of (i) any voluntary or involuntary filing or submission of any
petition or other document for relief, bankruptcy, insolvency, receivership or
other remedy by or with respect to such other Party, or (ii) the existence of
any case, action, suit, or proceeding by or with respect to such other Party,
whether voluntary or involuntary, under the United States Bankruptcy Code, as
amended, or any other present or future federal, state, provincial or foreign
applicable law respecting bankruptcy, reorganization, insolvency, readjustment
of debts, relief of debtors, dissolution or liquidation.
Section 6. Force Majeure. Notwithstanding any other term or
provision of this Agreement, no Party shall be responsible for or be in breach
of or default under this Agreement for any performance delay or failure that is
the result of any and all acts of God and other acts, events, circumstances,
impediments or occurrences beyond the control of the delayed person (each a
"Force Majeure"), including (without limitation) any (i) accident or mishap not
caused by the delayed person, (ii) assault, attack, battle, blockade, bombing,
embargo, police action, siege or other act of defense, offense, terrorism or war
(whether or not declared), in each case whether civilian, militia, military or
otherwise and whether domestic or foreign, (iii) governmental regulation or
decree or other act or failure to act of any governmental authority or other
regulatory body, in each case whether civil, military or otherwise and whether
domestic or foreign, (iv) earthquake, explosion, fire, flood, hurricane or other
natural or man-made calamity or disaster, (v) epidemic, environmental
contamination or other natural or man-made pestilence or toxic exposure (whether
biological, chemical, radiological or otherwise), or any quarantine or other
restriction arising therefrom, (vi) failure of, interruption in or impairment of
any delivery, internet, mail, monetary, power, telecommunication, transmission,
transportation or utility system or any other service, product or equipment
provided or maintained by a third party, (vii) lockout, strike or similar labor
interruptions, (viii) insurrection, riot or other civil disturbance, (ix)
hacking or other unauthorized access, spamming, virus, trojan or other
unauthorized program, or other computer or technological tampering or attack, or
(x) sabotage or other criminal or intentionally disruptive third party act, in
each case together with any and all consequential disruptions, delays, effects
or other acts, events, circumstances, impediments or occurrences and
irrespective of how localized or widespread. Upon prompt notice to the other
Party, the Party affected by any Force Majeure shall be excused from performance
hereunder to the extent and for so long as its performance hereunder is
prevented or restricted by a Force Majeure (and the other Party shall likewise
be excused from performance of its obligations hereunder relating to such
delayed or failed performance to the same extent and for the same duration);
provided that the Party so affected shall use reasonable efforts (without
increased cost) to avoid, mitigate or remove such Force Majeure and to minimize
the consequences thereof, and both Parties shall resume performance hereunder
with the utmost dispatch whenever such non-performance causes are removed.
Section 7. General Representations of the Parties. Each Party
represents and warrants to the other Party that, as of the date hereof and as of
the date of each extension, modification or
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amendment of this Agreement, and covenants and agrees with the other Party that
for so long as products and services are being provided by SMS to the Company or
any of its affiliates under this Agreement: (a) such Party is and will continue
to be a corporation or other entity duly organized, validly existing and in good
standing under the laws of its state of organization and maintains its chief
executive office at the address(es) set forth for it either on the signature
page to this Agreement or in the introduction thereto, or as otherwise set forth
in a written notice to the other Party; (b) such Party has and will maintain the
legal capacity, power, authority and unrestricted right to execute and deliver
this Agreement and to perform all of its obligations hereunder; (c) the
execution and delivery by such Party of this Agreement and the performance by
such Party of all of its obligations hereunder will not violate or be in
conflict with any term or provision of (i) any applicable law, (ii) any
judgment, order, writ, injunction, decree or consent of any court or other
judicial authority applicable to such Party or any material part of such Party's
assets and properties, (iii) any of the organizational or governing documents of
such Party, or (iv) any material agreement, document or obligation to which it
is a Party, and such Party will not adopt any such conflicting organizational or
governing document or enter into any such conflicting agreement, document or
obligation; (d) no consent, approval or authorization of, or registration,
declaration or filing with, any governmental authority or other person is
required as a condition precedent, concurrent or subsequent to or in connection
with the due and valid execution, delivery and performance by such Party of this
Agreement or the legality, validity, binding effect or enforceability of any of
the terms and provisions of this Agreement; (e) this Agreement is a legal, valid
and binding obligation of such Party, enforceable against such Party in
accordance with their respective terms and provisions; (f) the Services will not
be requested, provided or used for any illicit or illegal business or scheme;
(g) the financial information (if any) respecting the Customer furnished to SPAR
is complete, accurate and fairly presents the financial condition of the
Customer; (h) the information furnished or to be furnished by or on behalf of a
Party to the other Party does not and will not contain a misstatement of a
material fact or omit to state a material fact required to be stated therein in
order to make it, in the light of the circumstances under which made, not
misleading; and (i) each Party has independently and fully reviewed and
evaluated this Agreement and all related documents, the contemplated obligations
and transactions and the potential effects of such obligations and transactions
on the assets, business, cash flow, expenses, income, liabilities, operations,
properties, prospects, reputation, taxation or condition (financial or
otherwise) of such Party and its affiliates, which review and evaluation was
made together with the officers, directors and other representatives of such
Party, its legal counsel and (to the extent deemed prudent by such Party) other
legal counsel and financial and other advisors to such Party, and such Party
hereby absolutely, unconditionally, irrevocably, expressly and forever assumes
any and all attendant risks and waives any and all rights, claims, defenses or
objections with respect thereto.
Section 8. Independent Contractor, Non-exclusive Status, Etc.
The Parties each acknowledge and agree that SMS's sole relationship with the
Company is that of independent contractor, and that no term or provision of this
Agreement or any related document is intended to create, nor shall any such term
or provision be deemed or construed to have created, any joint venture,
partnership, trust, agency or other fiduciary relationship between the Parties
or any of their respective affiliates. No term or provision of this Agreement or
any related document is intended, or shall be deemed or construed, to in any way
(a) limit the power, authority or discretion of SMS to conduct its business in
such manner as it may choose, or (b) confer upon the Company any right, power or
privilege to control, direct, approve or otherwise affect any manner chosen by
SMS or any of its affiliates to conduct its business, irrespective of whether
any of the Services may be involved in or affected by any such conduct. Without
limiting the generality of the foregoing, SMS shall have full and exclusive
power, authority and discretion at any time and from time to time (i) to hire,
direct and discharge from time to time any and all officers, employees, agents,
brokers and other representatives of SMS (including, without limitation, the
stockholders), (ii) to engage such independent contractors, affiliates and other
subcontractors as it may deem necessary or appropriate in the performance of the
Services, (iii) to exercise or otherwise enforce any of its rights, powers,
privileges, remedies or interests in whole or in part, (iv) to delay, refrain
from or discontinue any such exercise or other enforcement, (v) to perform the
same or similar services for others and pursue any and all other continuing, new
or other business opportunities of any nature or description, which may include
(without limitation,) one or more of the business activities engaged in by the
Company or its affiliates or aspects thereof, whether independently or for or
with other persons, and irrespective of location, and (vi) to allocate the time
and attention and the other resources of SMS among the Services and its various
other activities, provided that such allocation does not adversely affect the
performance of SMS hereunder in any material respect, in each case without
notice to the Company (except as otherwise expressly required hereunder), for
any reason or no reason whatsoever and whether intentionally or otherwise. The
Company shall not be required to use SMS exclusively for the provision of
Services in any Stores or otherwise at any time and may purchase Services from
any affiliate or other person without limitation or restriction of any kind.
Section 9. No Other Warranties, Waiver of Set-Off, Special
Damages, Etc. Except as otherwise expressly provided in this Agreement, the
Company (on behalf of itself and each other SPAR
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Company) acknowledges and agrees that: (a) SMS makes no representation or
warranty of any kind or nature whatsoever with respect to any product or service
provided under this Agreement, whether express or implied (either in fact, by
operation of law or otherwise), including (without limitation) no warranty as to
merchantability, fitness or usefulness for a particular purpose, title,
interference, infringement or conformance to any specifications; (b) SMS shall
not be liable or responsible for any claim, liability, loss or expense of any
SPAR Company or any other person on account of or directly or indirectly arising
from the use of any product or service furnished by or through SMS; all of which
are hereby expressly disclaimed by SMS and all of which are hereby irrevocably,
unconditionally, expressly and forever waived and released by the Company (on
behalf of itself, each other SPAR Company and all those using or receiving such
products and services through any SPAR Company); (c) none of the SPAR Companies
will seek, recover or retain any, and the Company (on behalf of itself and each
other SPAR Company) hereby irrevocably, unconditionally, expressly and forever
waives any and all, special, exemplary, punitive, statutory and/or consequential
damages (whether through action, suit, counterclaim or otherwise and whether in
contract, tort, strict liability or otherwise) to the extent waiver is not
limited under applicable law; and (d) the Company will not exercise or enforce,
and the Company (on behalf of itself and each other SPAR Company) hereby
irrevocably, unconditionally, expressly and forever waives, any right of setoff,
recoupment, abatement or reduction that may now or hereafter be accorded to it
(whether under this Agreement, applicable law or otherwise) against or in
respect of any payment due (whether as scheduled or required, upon demand or as
sought in any action, suit or proceeding) to or for the benefit of SMS or any
SMS Affiliate under this Agreement or applicable law, except to the extent
required as a compulsory counterclaim in any related ongoing proceeding, and the
Company will pursue separate exercise and enforcement thereof.
Section 10. Indemnification. (a) The Company, its affiliates and their
respective officers, employees, independent contractors, agents, brokers and
other representatives (a "MF Indemnified Person") shall not incur any liability
for any acts or omissions (and the other Party hereby absolutely,
unconditionally, irrevocably and expressly waives and releases forever any and
all related claims and actions against each MF Indemnified Person), and each
shall be indemnified, reimbursed and held harmless by SMS upon demand, and
defended at the expense of SMS with counsel selected by SMS (and reasonably
acceptable to the Company), from and against, any and all claims, liabilities,
expenses (including, without limitation, the disbursements, expenses and
reasonable fees of their respective attorneys) and other losses that may be
imposed upon, incurred by or asserted against any MF Indemnified Person
resulting from, arising out of or directly or indirectly related to (i) any
Service or other activity performed by SMS or any of its representatives or (ii)
any misrepresentation, omission, breach, default or wrongdoing by SMS or any of
its representatives; in each case (A) other than to the extent occasioned by the
acts or omissions of any MF Indemnified Person materially breaching this
Agreement or any duty owed to the other Party hereunder and amounting to gross
negligence, willful misconduct or material breach of this Agreement as finally
determined pursuant to applicable law by a governmental authority having
jurisdiction, and (B) subject to the limitations, waivers and other terms and
provisions of Sections 9 and 12 hereof (which are intended to limit this
subsection).
(b) SMS, its affiliates and their respective officers,
employees, independent contractors, agents, brokers and other representatives (a
"SMS Indemnified Person") shall not incur any liability for any acts or
omissions (and the other Party hereby absolutely, unconditionally, irrevocably
and expressly waives and releases forever any and all related claims and actions
against each SMS Indemnified Person), and each shall be indemnified, reimbursed
and held harmless by the Company upon demand, and defended at the expense of the
Company with counsel selected by the Company (and reasonably acceptable to SMS),
from and against, any and all claims, liabilities, expenses (including, without
limitation, the disbursements, expenses and reasonable fees of their respective
attorneys) and other losses that may be imposed upon, incurred by or asserted
against any SMS Indemnified Person resulting from, arising out of or directly or
indirectly related to (i) any Service or other activity performed substantially
in accordance with the directions of the Company or any of its representatives,
(ii) any product defect in or other condition of any merchandise or equipment
provided the Company, its affiliate, its customer, any Store or any of their
respective representatives or (iii) any misrepresentation, omission, breach,
default or wrongdoing by the Company or any of its representatives, but
excluding any Indemnified Amounts; in each case (A) other than to the extent
occasioned by the acts or omissions of any SMS Indemnified Person materially
breaching this Agreement or any duty owed to the other Party hereunder and
amounting to gross negligence, willful misconduct or material breach of this
Agreement as finally determined pursuant to applicable law by a governmental
authority having jurisdiction, and (B) subject to the limitations, waivers and
other terms and provisions of Sections 9 and 12 hereof (which are intended to
limit this subsection).
(c) The preceding general exculpations and indemnifications
are not intended (and shall not be deemed or construed) to in any way qualify,
condition, diminish, restrict, limit or otherwise affect any
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(and is in addition to each) other release, waiver, consent, acknowledgment,
agreement or other term or provision of this Agreement or any related document.
Section 11. Notice. Any notice, request, demand or other
communication permitted or required to be given to a Party under this Agreement
shall be in writing and shall be sent to the addressee at the address set forth
above (or at such other address as shall be designated by notice to the other
Party and Persons receiving copies), effective upon actual receipt (or refusal
to accept delivery) by the addressee on any business day or the first business
day following receipt after the close of normal business hours or on any
non-business day, by (a) FedEx (or other equivalent national or international
overnight courier) or United States Express Mail, (b) certified, registered,
priority or express United States mail, return receipt requested, (c) telecopy
or (d) messenger, by hand or any other means of actual delivery.
Section 12. Use of Electronic Systems, Responsibilities and
Waiver of Liability. The Parties desire to send and receive applications, calls,
data, emails, invoices, orders and other documents and information ("eData")
among themselves and their respective representatives by any one or more of the
following means (each an "eSystem"): (a) email or other internet communication;
(b) any internet site, whether maintained by or on behalf of a Party or
otherwise (each a "Web Site"); (c) telecopy; (d) cellular or other wireless
communication; or (e) other electronic communication; in each case whether or
not open, guarded, scrambled or encrypted. Each Party hereby authorizes and
directs the other Party to send and receive eData through any eSystem and to act
upon any request or other content of any eData received or obtained through any
eSystem by the receiving Party, any of its affiliates or any of their respective
representatives purporting to be from or on behalf of the sending Party or its
representatives, and the sending Party acknowledges and agrees that the
receiving Party or person may in good faith rely upon as accurate, authentic and
duly authorized. Each Party acknowledges and agrees that the other Party, its
affiliates and their respective representatives shall not under any circumstance
be or become responsible or liable in any way for, and each Party hereby
irrevocably, unconditionally, expressly and forever waives and releases any and
all related claims and actions against each of the other Party, its affiliates
and their respective representatives respecting, any claim, cost, expense, loss,
or liability whatsoever directly or indirectly arising from: (A) any
transmission, receipt or use of or reliance upon any eData or use of any
eSystem; (B) any unauthorized Person's use of or access to any eData, any Web
Site or any other eSystem; (C) any access, misuse or appropriation a Party's
eData or any failed, forged, altered, deciphered, intercepted, incomplete or
inaccurate transmission of any eData; (D) any eSystems, anti-virus firewalls and
security measures, their use or operation or their compatibility with any Web
Site or other eSystem of the other Party or any of its affiliates; (E) any
virus, macro or similar program or script; (F) the viability, integrity,
robustness, fitness or adequacy of any encryption, firewall or other security
measures used by a Party or any of its affiliates; (G) any eData of a Party sent
or received through or stored on the Web Site or other eSystem of the other
Party or any of its affiliates or the security or retention thereof; (H) any
failure to act on any request or other eData (1) not actually received by the
appropriate the representative, (2) that appears to be unauthorized, incomplete
or inaccurate in any respect; or (3) pending receipt from the sender of any
resubmission, clarification, confirmation or verification of any eData requested
by a Party; or (I) without limiting any applicable force majeure, (1) any error,
poor transmission or other casualty to, loss of or delay or failure in sending
or receiving any eData, or (2) any failure of any ISP or other eSystem provider.
Section 13. No Waiver by Action, Etc. Any waiver or consent
from either Party respecting any provision of this Agreement or any related
document shall be effective only in the specific instance for which given and
shall not be deemed, regardless of frequency given, to be a further or
continuing waiver or consent. The failure or delay of any Party at any time to
require performance of, or to exercise or enforce its rights or remedies with
respect to, any provision of this Agreement shall not affect such Party's right
at a later time to exercise or enforce any such provision. No notice to or
demand on any Party shall entitle such Party to any other notice or demand in
similar or other circumstances. Any acceptance by or on behalf of a Party of (A)
any partial or late payment, reimbursement or performance shall not constitute a
satisfaction or waiver of the obligation then due or the resulting default, or
(B) any payment, reimbursement or performance of any obligation during the
continuance of any default shall not constitute a waiver or cure thereof, and
the Party or its designee may accept or reject any such payment, reimbursement
or performance without affecting any obligation or any of the Party's rights,
powers, privileges, remedies and other interests under this Agreement, any
related document or applicable law. All rights, powers, privileges, remedies and
other interests of each Party hereunder are cumulative and not alternatives, and
they are in addition to (and shall not limit) any other right, power, privilege,
remedy or other interest of such Party under this Agreement, any related
document or applicable law.
Section 14. Successors and Assigns; Assignment; Intended
Beneficiaries. This Agreement and each related document shall be binding upon
and inure to the benefit of the successors, permitted assigns and legal
representatives of each Party (including, without limitation, any assignee of
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substantially all of the business or assets of any Party or any successor by
merger). Neither Party may assign any of its rights or obligations under this
Agreement or any related document to any other person without the consent of the
other Party; provided, however, that (i) either Party may assign its rights and
obligations hereunder in whole or in part to any of its affiliates (without,
however, relieving the assignor of any of its obligations hereunder) by giving
the other Party a copy of such assignment, (ii) SMS acknowledges and agrees that
the Company may request (for its account hereunder) that SMS provide services
for affiliates of the Company without the need to formally assign any rights or
obligations of the Company to such affiliates to the extent the Company remains
liable for any and all payments hereunder with respect thereto, and (iii)
nothing in this Section is intended, or shall be deemed or construed, to in any
way limit the use of independent contractors as field representatives or
managers by SMS. Without limiting the generality of the foregoing, SMS
acknowledges and agrees that the Company may pledge this Agreement and all
accounts, payment intangibles, general intangibles and other rights and interest
arising hereunder to one or more lender(s), such lender(s) shall be entitled
upon default to enforce any and all of the rights, powers, privileges, remedies
and interests of the Company as so assigned in accordance with this Agreement,
the applicable loan documents and applicable law, and such lender(s) shall not
be responsible or liable for any of the acts, omissions, duties, liabilities or
obligations of the Company or any of its affiliates under this Agreement or
otherwise. Except as otherwise provided in this Agreement, the representations,
agreements and other provisions of this Agreement are for the exclusive benefit
of the Parties hereto, and no other person (including, without limitation, any
creditor of a Party) shall have any right or claim against any Party by reason
of any of those provisions or be entitled to enforce any of those provisions
against any Party.
Section 15. Counterparts, Governing Law, Amendments, Etc. This
Agreement shall be effective on the date as of which this Agreement shall be
executed and delivered by the Parties hereto. This Agreement or any related
document may be executed in two or more counterpart copies of the entire
document or of signature pages to the document, each of which may be executed by
one or more of the Parties hereto and may be sent by fax, but all of which, when
taken together, shall constitute a single agreement binding upon all of the
Parties hereto. This Agreement and all related documents shall be governed by
and construed in accordance with the applicable laws pertaining, in the State of
New York (other than those conflict of law rules that would defer to the
substantive laws of another jurisdiction). The headings contained in this
Agreement or any related document are for reference purposes only and shall not
affect the meaning or interpretation of this Agreement or any related document.
Each and every supplement or modification to or amendment or restatement of this
Agreement or any related document shall be in writing and signed by all of the
Parties hereto, and each and every waiver of, or consent to any departure from,
any term or provision of this Agreement or any related document shall be in
writing and signed by each affected Party hereto.
Section 16. Waiver of Jury Trial; All Waivers Intentional,
Etc. In any action, suit or proceeding in any jurisdiction brought against SMS
by the Company, or vice versa, each Party hereby absolutely, unconditionally,
irrevocably and expressly waives forever trial by jury. This waiver of jury
trial by each Party, and each other waiver, release, relinquishment or similar
surrender of rights (however expressed) made by a Party in this Agreement, has
been absolutely, unconditionally, irrevocably, knowingly and intentionally made
by such Party.
Section 17. Entire Agreement. No Party or any of its
representatives has made, accepted or acknowledged any representation, warranty,
promise, assurance, agreement, obligation or understanding (oral or otherwise)
to, with or for the benefit of the other Party or any of its representatives
other than as expressly set forth in this Agreement. This Agreement contains the
entire agreement of the Parties, amends, restates and completely replaces the
Existing Service Agreement, and supersedes and completely replaces all prior and
other communications, discussions and other representations, warranties,
promises, assurances, agreements and understandings (oral, implied or otherwise)
between the Parties, with respect to the matters contained in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement
effective as of the day and year first written above.
SPAR Marketing Services, Inc., SPAR Marketing Force, Inc.,
a Nevada corporation a Nevada corporation
By: By:
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