GENERAL SERVICES AGREEMENT EXAMPLE
THIS GENERAL SERVICES AGREEMENT (this “Agreement”) is entered into as of Today’s Date (the “Effective Date”) by and between THINKFISH, LLC, a Wyoming limited liability company, with the mailing address of P.O. Box 1993 Manhattan Beach, CA 90267 (the “Agency”), and Client Company Name. with offices located at Client’s Company Address (the “Client”). The Agency and the Client are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, the Agency is in the business of providing promotion, marketing, and advertising services (the “Services”); and
WHEREAS, the Client desires to retain Agency to provide the Services, and Agency wishes to be so retained.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
SERVICES AND RESPONSIBILITIES.
Services.
Agency shall provide to Client the Services described generally in Exhibit A and set out more specifically in one or more statements of work to be issued by Client and accepted by Agency (each, an “SOW”). Agency shall only be responsible for the Services stated in the SOWs and only upon the execution of the SOW by Client. Agency and Client may enter into additional SOWs for additional or other Services upon the execution of the same by Agency and Client. Such additional SOWs shall be attached hereto and made a part hereof upon their full and final execution. In the event of any inconsistency between an SOW and this Agreement, the terms of this Agreement shall control.
Agency shall use commercially reasonable efforts to provide the Services: (a) in accordance with the terms and subject to the conditions set forth in the respective SOW and this Agreement; (b) using personnel of required skill, experience, and qualifications; and (c) in a workmanlike and professional manner.
Agency will create a proposed outreach strategy to its network of investors (“The REEF”) as well as through LinkedIn outreach. Agency will work with Client on proposed messaging and script(s), and Client will review and approve in advance of any outreach. Client will be responsible for ensuring that the language is in compliance with all securities laws. Agency will only use approved messaging and scripts in its investor outreach. In certain occasions where Agency needs Client’s input on a script or message, Agency shall seek Client input for specific language to use with the prospective investor.
Agency Personnel
Agency shall be responsible for the payment of all compensation owed to all employees and Permitted Subcontractors (as defined in Section 1(B)(ii) necessary to perform the Services, each of whom shall be suitably skilled, experienced, and qualified (collectively, the "Agency Personnel"); including, if applicable, the payment and withholding of social security and other payroll taxes, withholding of income taxes, unemployment insurance, workers' compensation insurance payments, and disability benefits.
Agency, in its sole and absolute discretion, may enter into agreements with or otherwise engage any person who is not an Agency employee, including any independent consultants, contractors, subcontractors, or affiliates of Agency (each such third party, a "Permitted Subcontractor"), to provide any Services to Client. Such agreements or engagements with Permitted Subcontractors shall not relieve Agency of its obligations under this Agreement, and Agency shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Agency's own employees. Nothing contained in this Agreement shall create any contractual relationship between Client and any Permitted Subcontractor.
No Exclusivity Agency retains the right to perform the same or similar type of services for third parties during the Term (as defined in Section 4(a).
Status Reports Upon Client’s written request, Agency shall provide Client with regular written status reports, including written confirmation of completion of Services.
Securities Laws Compliance Measures. Notwithstanding anything to the contrary herein, Agency shall not be responsible for any Securities Laws Compliance Measures, as hereinafter defined, on behalf of the Client, and shall not be liable for Client’s violation of any Securities Laws Compliance Measures, including any violation in connection with Agency’s provision of the Services (collectively, “Securities Laws Violations”).
CLIENT REPRESENTATIONS, WARRANTIES AND COVENANTS. Client hereby represents warrants and covenants to Agency that:
Client understands that the use of the term “Client” within this Agreement shall also refer to any person(s) authorized by Client to work with Agency with regards to the Services. Client shall appoint and, in its reasonable discretion, replace a Client employee to serve as the primary contact with respect to this Agreement and who will have the authority to act on behalf of Client with respect to matters pertaining to this Agreement.
Client shall provide copies of or access to Client's information, documents, samples, or other materials (collectively, "Client Materials") as Agency may reasonably request in order to carry out the Services in a timely manner and which Client considers reasonably necessary, and ensure that they are complete and accurate in all material respects. Client and its licensors are and shall remain, the sole and exclusive owner of all rights, titles, and interests in and to all Client Materials, including all copyrights, trademarks, service marks, trade dress, trade names, trade secrets, patents, mask works, and other intellectual and industrial property rights (collectively "Intellectual Property Rights") therein. Agency shall have no right or license to use any Client Materials other than during the Term to the extent necessary to provide the Services to Client, and all other rights in and to the Client Materials are expressly reserved by Client.
Client shall use best efforts to respond promptly to any Agency request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Agency to perform the Services in accordance with the requirements of this Agreement.
Client shall, at all times during the Term of this Agreement:
Maintain its entity in good standing with all applicable jurisdictions in which the Client operates;
Except as agreed to hereunder or under any SOW, maintain sole and full responsibility for all social media management and content creation necessary for its brand;
Continue its current and ongoing business activities in the normal course, such as advertising, marketing, and other growth activities; and
Take any and all action, directly or indirectly, so as to cause the Client to (1) comply with all registration requirements under the U.S. Securities Act of 1933, as amended, the U.S. Securities Exchange Act of 1934, as amended, and each and every other securities law of the United States and the states thereof, and all rules and regulations promulgated under all of such laws (collectively, the “Securities Laws”) or (2) qualify for an exemption from registration under the Securities Laws which does not prohibit Agency from performing the Services (collectively, the “Securities Laws Compliance Measures”).
Client acknowledges that, except as explicitly stated herein, Agency makes no representation or warranties concerning any results derived from the Services. Client further acknowledges that Agency is not responsible for any Securities Laws Compliance Measures on behalf of the Client, and shall not be liable for any Securities Laws Violations.
The Client Materials provided to Agency for use as permitted in this Agreement do not infringe or violate and will not infringe or violate the publicity and privacy rights or any other Intellectual Property Rights of any third party.
The Client hereby acknowledges and agrees that it has been advised that (i) the Agency is not a registered broker-dealer, an investment adviser, an escrow agent, or transfer agent under the Securities Laws; (ii) it should consult its own legal counsel to independently determine whether the use of the Services complies with the Securities Laws; and (iii) Agency has not provided accounting, tax or legal advice and has been advised to seek its own advisors with respect to such topics.
Neither the Client nor any of its officers, directors, employees, agents, or beneficial owners of 20% or more of the Client’s outstanding voting equity securities are or has been (i) indicted for or convicted of any felony or any securities or investment related offense of any kind, (ii) enjoined, barred, suspended, censured, sanctioned or otherwise restricted with respect to any securities or investment-related business or undertaking, (iii) the subject or target of any securities or investment-related investigation by any regulatory authority, or (iv) subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Laws;
The Client will cause to be timely made all securities filings required under the Securities Laws, and the Client shall timely prepare and cause to be filed with the Securities and Exchange Commission all forms and annual reports that the Client is required to file under the Securities Laws.
The Client hereby represents and warrants that: (i) it has full right, power and authority to enter into this Agreement and to perform all of its obligations hereunder; (ii) this Agreement has been duly authorized and executed and constitutes a legal, valid and binding agreement of the Client enforceable in accordance with its terms; (iii) the Client has read, consulted with its own legal advisor regarding, understands, and has and will continue to comply with the requirements of the Securities Laws, and any exemptions promulgated thereunder; (iv) it has not taken, and agrees that it will not take any action, directly or indirectly, so as to cause the Client to fail to qualify for an exemption from registration under the Securities Laws; (v) the information and Client Materials provided to the Agency and all communication with the public is accurate and complete and does not contain any misstatements, exaggerations or claims that cannot be supported by fact or material omissions, and it will secure legal counsel to review all such information. Client further acknowledges that (y) Agency and its Permitted Subcontractors will rely on the information provided by Client to provide the Services, and (z) its failure to submit Client Materials to Agency in a timely manner may impact Agency’s delivery of Services.
If applicable, the Client, and/or its respective legal counsel shall be solely responsible for the verification of any “accredited investor” status required pursuant to Rule 506(c) of Regulation D, promulgated under the Securities Laws.
FEES AND COSTS.
Service Fees. In consideration of the provision of Services and the rights granted to Client under this Agreement, Client agrees to pay Agency the fees as stated in the attached SOWs (the “Service Fees”). Except as stated otherwise on any applicable SOW, all invoices shall be due and payable within thirty (30) days of receipt of such invoice by the Client (the “Due Date”). Fees are paid upfront, and the first invoice is due prior to the onboarding meeting.
Suspension of Services. Agency, in its sole and absolute discretion, retains the right to suspend services indefinitely, without any liability whatsoever, should Client fail to pay invoices as and when due.
Expenses and Costs. Service Fees do not include any expenses and/or costs directly associated with and unique to the Services. Agency shall only charge Client for those expenses and costs as are agreed upon in the SOWs. All applicable expenses and costs shall be itemized on the invoice, and Agency shall provide Client with receipts to substantiate the same.
Sales Navigator Core. Notwithstanding anything to the contrary herein, in addition to any Service Fees due and payable in accordance herewith, Client shall be responsible for the cost of subscribing to “Sales Navigator Core,” a premium function within LinkedIn that is required for Agency to provide the Services. If and when applicable, Agency will provide Client with a referral link for a 2-month free trial (if the Client does not already have Sales Navigator Core enabled on their LinkedIn profile). As of the Effective Date, the cost of Sales Navigator Core is $99 per LinkedIn account per month, provided such amount is subject to change and not within Agency’s control.
TERM AND TERMINATION.
Term. The term of this Agreement shall commence on the Effective Date and continue for a period of three (3) months, subject to its earlier termination pursuant to this Section 4 or expiration (the “Term”).
Termination by Agency. This Agreement may be terminated, with immediate effect, by Agency in the event of a “default” by Client. For the purposes of this Agreement, the term “default” shall mean: (i) Client fails to timely pay any invoice and/or reinstate Services after their suspension; (ii) Agency determines, in its sole discretion, that Client is engaging in fraud; (iii) Client fails to maintain proper communication with Agency or timely submit requested information such that the delay materially interferes with Agency’s ability to deliver Services, as determined by Agency in its sole discretion; (iv) Client breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Client does not cure such breach within ten (10) days after receipt of written notice of such breach; (v) Client becomes insolvent; (vi) Client admits its inability to pay its debts generally as they become due; (vii) Client becomes subject to any bankruptcy proceeding which is not dismissed or vacated within ninety (90) days after filing; (viii) Client is dissolved or liquidated; (ix) Client makes a general assignment for the benefit of creditors; or (x) Client has a receiver, trustee, custodian, or similar agent appointed by court order to take charge of or sell any material portion of its property or business.
Termination in Violation of Section 4. Any actual or constructive termination in violation of this Section 4 shall result in Client being assessed seventy-five percent (75%) of the remaining value of Service Fees under all applicable SOWs.
Extension of Term. [Subject to extension in accordance with Section 5 herein,] the term of this Agreement may be extended by the Parties upon mutual agreement and subject to a written agreement documenting any such extension.
Effect of Expiration or Termination. Upon the expiration or termination of this Agreement for any reason, each party shall promptly: (1) return to the other party or destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other party's Confidential Information, as hereinafter defined; and (2) permanently erase all of the other party's Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery or information technology backup systems, which it shall destroy upon the normal expiration of its backup files.
SERVICE GUARANTEE. Agency guarantees to provide Client with a minimum of twenty (20) Booked Meetings, as hereinafter defined, over the Term of this Agreement (the “Meeting Minimum”). The Client understands and acknowledges that these are meetings only and are not a guarantee of any actual results. In the event Agency fails to deliver the Meeting Minimum within the Term, Agency shall extend the Term of this Agreement and continue to provide the Services, free of charge, until the Meeting Minimum has been met. For purposes of this Agreement, a “Booked Meeting” means an appointment/call with a third party interested in meeting with the Client confirmed on the Client’s calendar. Once an appointment is scheduled, the Client has twenty-four (24) hours to confirm or reject the meeting, not to be unreasonably withheld or delayed. Should the Client fail to cancel meetings within the timeline, the meeting shall count toward the guarantee. The guarantee contained in this Section 5 shall not apply in the event this Agreement is terminated pursuant to Section 4(b).
NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, (A) AGENCY, NOR ANY OTHER PERSON ON THE AGENCY'S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) CLIENT ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY AGENCY OR ANY OTHER PERSON ON THE AGENCY'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT.
SOCIAL MEDIA ACCESS. Due to the nature of the Services, Client agrees to provide Agency with all applicable passwords and login information to his/her/its LinkedIn and other applicable social media accounts. Client’s passwords shall remain the property of the Client, and under no event shall Agency retain any rights or access to Client’s passwords after the expiration or termination of this Agreement. Agency shall not use Client’s passwords or access Client’s social media accounts for any purpose other than the performance of Services under this Agreement. Agency shall take all required measures reasonably necessary to maintain the confidentiality of Client’s login(s) and password(s) to social media accounts. Client shall be solely responsible for ensuring that his/her/its LinkedIn and other applicable social media accounts (i) remain active and in good standing, (ii) that all applicable subscription or access fees are paid in a timely manner, and (iii) that Agency’s access is maintained throughout the Term of this Agreement. Agency shall have no responsibility for, nor any liability associated with, the operation, performance, or viability of Client’s LinkedIn or other applicable social media accounts except in the event of gross negligence or willful misconduct on the part of Agency.
CONFIDENTIALITY.
Confidential Information. During the performance or delivery of Services, a Party (the “Receiving Party”) may receive or be exposed to confidential and proprietary information of the other Party (the “Disclosing Party”), including but not limited to: products, processes, technologies, innovative concepts, customer information, processing capabilities, and information which may be of a personal nature and other valuable personal identity information designated as confidential expressly or by the circumstances in which it is provided (collectively “Confidential Information”). Confidential Information does not include (i) information already known or independently developed by the Receiving Party; (ii) information in the public domain through no wrongful act of the Receiving Party, (iii) information disclosed to the Receiving Party from a third party not subject to any confidentiality obligations; or (iv) information required to be disclosed by law subject, however, to the Receiving Party notifying the Disclosing Party of such disclosure requirement so as to allow the Disclosing party to seek protective or other court orders to maintain the confidentiality of all applicable Confidential Information subject to such disclosures, and the Receiving Party shall reasonably cooperate with such Disclosing Party efforts.
Restrictions on Disclosure of Confidential Information. The Parties hereby agree that, during the term of this Agreement and for a period of three (3) years thereafter, a Receiving Party shall not disclose any Confidential Information to any third party without the express written consent of the Disclosing Party. Notwithstanding the foregoing, Confidential Information may be disclosed to those employees, staff, and contractors of the Receiving Party on a “need to know” basis, provided that such individuals or entities are subject to similar restrictions on their use of Confidential Information.
INTELLECTUAL PROPERTY.
Agency Intellectual Property. Agency shall retain all rights to pre-existing ideas, processes, procedures, and materials used by Agency in developing or providing Services to Client. Agency warrants that the Services provided by Agency shall be original and not infringe upon any third party's intellectual property rights. To the extent that Agency is required to incorporate a third party’s proprietary materials into the Services Agency provides on behalf of Client, Agency shall obtain all licenses and authorizations necessary to do so. In the event Agency unintentionally incorporates the intellectual property of any third party, Agency shall be entitled to replace the same or, at its cost, obtain a license for the use of the same.
Client Intellectual Property. To the extent that Agency: (i) jointly or solely conceives, develops, or reduces to practice any new inventions, original works of authorship, developments, concepts, know-how, improvements, or trade secrets, whether or not patentable or registrable under the copyright or similar laws or other intellectual property, and which would be deemed to be Confidential Information of Client or a derivative of Client’s Confidential Information (collectively, “Client IP Derivative”), and, (ii) and such Client IP Derivative clearly relates to the Client’s business or technology, and, (iii) the Client IP Derivative has been created by Agency solely in the course of the performance of Services, Agency hereby assigns all rights, titles, and interest to such Client IP Derivative to Client. As requested by Client, and only with respect to Client IP Derivatives created by Agency for the Client as provided above, Agency shall take all steps reasonably necessary to assist Client in obtaining and enforcing in its own name all applicable Intellectual Property Right.
Work Made for Hire. All technical or business information, in whatever medium or format, including but not limited to, data, specifications, drawings, records, reports, proposals, software and related documentation, inventions, concepts, research, or other information (herein collectively referred to as “Agency Prepared IP”), originated or prepared by Agency in the course of, or as a result of, Services performed hereunder, shall be promptly furnished to Client. All such Agency Prepared IP shall be the exclusive property of Client and shall be deemed to be works made for hire. To the extent that it may not work for hire by operation of law (or otherwise impacts the independent contractor relationship between the parties). Agency hereby assigns to Client all rights, title, and interest in and to such Agency Prepared IP. As requested by Client, and only with respect to Agency Prepared IP, Agency shall take all steps reasonably necessary to assist Client in obtaining and enforcing in its own name all applicable intellectual property right pertaining to the Agency Prepared IP.
Acquisition of Prospects/Leads. Agency will provide Client with a copy of all leads, contact information, and existing information kept in the customer relationship management software directly related to the Agency’s provision of Services to the Client (the “Client CRM”). The Client CRM is created and maintained by the Agency and will contain a pipeline of leads that the Agency is in communication with in connection with the Services.
INDEMNIFICATION
Agency Indemnification Obligations. Except to the extent relating to (i) any Client Elements, as hereinafter defined, which shall be the sole responsibility of the Client, (ii) any Securities Laws Compliance Measures, which shall be the sole responsibility of the Client, and (iii) any Securities Laws Violations, Agency shall defend, indemnify, and hold harmless Client, and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, "Client Indemnified Party"), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees, the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers ("Losses") arising out of or resulting from any third-party claim alleging:
breach by Agency or any Agency Personnel of any material representation, warranty, covenant, or other obligations set forth in this Agreement;
gross negligence or more culpable act or omission of Agency or any Agency Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
that any of the Services or Client's receipt or use thereof infringes or violates the publicity or privacy rights or any other Intellectual Property Rights of a third party arising under the laws of the United States.
For purposes of this Section 10(A), “Client Elements” shall include all elements included in the Client-Owned Deliverables, as hereinafter defined, at the direction of the Client, including the Client Materials provided by Client in the development, preparation, and delivery of the Client-Owned Deliverables; and “Client-Owned Deliverables” means all deliverables and results created by the Agency for the Client in the provisions of the Services
Client Indemnification Obligations. Client shall defend, indemnify, and hold harmless Agency, and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, "Agency Indemnified Party"), from and against any and all Losses arising out of or resulting from any third-party claim or direct claim alleging:
breach by Client of any representation, warranty, covenant, or other obligations set forth in this Agreement;
negligence or more culpable act or omission of Client (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; and
that any Client Materials or Client's Intellectual Property Rights that Agency uses to perform the Services in accordance with the terms of this Agreement infringes or violates the publicity or privacy rights or any other Intellectual Property Rights of a third party.
Indemnification Procedures. A party seeking indemnification under this Section 10 (the "Indemnified Party") shall give the party from whom indemnification is sought (the "Indemnifying Party"): (a) prompt Notice (as hereinafter defined) of the relevant claim; provided, however, that failure to provide such Notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation, at the Indemnifying Party's expense, in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party's rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
EXCLUSIVE REMEDY. THIS SECTION 10 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY OF EACH INDEMNIFIED PARTY FOR ANY DAMAGES COVERED BY THIS SECTION 10.
LIMITATION OF LIABILITY.
NO LIABILITY FOR SECURITIES LAWS VIOLATIONS. IN NO EVENT WILL THE AGENCY BE LIABLE TO THE CLIENT FOR ANY DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR FINES, LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION) ARISING OUT OF THE CLIENT’S SECURITIES LAWS VIOLATIONS, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THE CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. EXCEPT WITH RESPECT TO THE AGENCY'S LIABILITY FOR INDEMNIFICATION, IN NO EVENT WILL THE AGENCY BE LIABLE TO THE CLIENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THE CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
MAXIMUM LIABILITY. EXCEPT WITH RESPECT TO THE AGENCY’S LIABILITY FOR INDEMNIFICATION, THE AGENCY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO AGENCY PURSUANT TO THIS AGREEMENT.
MISCELLANEOUS.
Relationship of Parties. Nothing in this Agreement is intended to create any joint venture, partnership or other relationship. The Parties shall at all times hereunder remain independent contractors. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
Entire Agreement. This Agreement, including the SOWs, exhibits, and related schedules attached hereto, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
Waiver. Waiver by a Party of a breach or noncompliance with any terms or conditions of this Agreement can be accomplished only by a specific written agreement and will not operate as or be construed to be a continuing waiver or a waiver of any subsequent breach or noncompliance.
Dispute Resolution. In the event of a dispute arising under this Agreement, the Parties shall first attempt to resolve the dispute through amicable and good-faith discussions for a period of thirty (30) days. If such a dispute cannot be resolved through good-faith discussions, the matter shall be settled through mandatory arbitration, to be conducted in Los Angeles, California, by the American Arbitration Association (“AAA”). The matter shall be overseen by one (1) arbitrator, who shall be appointed by the AAA. Each Party shall bear an equal share of the costs of the arbitration. Notwithstanding the above, a Party shall have the right to obtain injunctive relief such as temporary protective or restraining orders, preliminary injunctions, or other provisional relief (“Injunctive Relief”) without the posting of bond. However, the final determination and resolution on the merits of any dispute for which Injunctive Relief is sought shall be subject to mandatory arbitration, as stated above.
Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Choice of Law. This Agreement and all related documents, including all exhibits and SOWs attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by and construed in accordance with the laws of the State of California, United States of America (including its statutes of limitations) without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.
Notices. All notices, requests, consents, claims, demands, waivers, and other similar communications hereunder (each, a "Notice") shall be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the Notice has complied with the requirements of this Section 12(G).
Severability. In the event a court of law determines that any of the provisions contained in this Agreement are invalid or unenforceable, then only that provision shall be deemed void or unenforceable, and the remaining provisions of this Agreement shall remain in full force and effect.
Assignment. This Agreement may not be assigned by either Party without the express written consent of the other Party. Notwithstanding the foregoing, Agency retains the right to assign this Agreement to any: (i) wholly owned subsidiary, (ii) entity under common control as Agency; or (iii) any successor in interest to Agency by consolidation, merger, or operation of law or to a purchaser of all or substantially all of the Agency's assets. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Force Majeure. Client understands and acknowledges that Agency has no control over the processes of or the speed at which any local, state, or federal government act or any third-party corporation is involved in the delivery of Services. In addition, it is mutually agreed and acknowledged that in the event of a flood, earthquake, hurricane, tornado, blizzard, and other natural disasters; fire, riot, terrorism, war or civil disturbance; strikes by common carriers; extended loss of utilities; global pandemic or other healthcare disasters; or, other act of God, neither Party shall be responsible for any delays. Notwithstanding the foregoing, each party has a duty to use reasonable efforts to prevent or mitigate such impediments.
Amendment and Modification. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement]and signed by an authorized representative of each Party.
Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
[Signature Page to Follows]
IN WITNESS WHEREOF, the Parties have executed this General Services Agreement as of the Effective Date.
AGENCY: | CLIENT: |
THINKFISH, LLC
By: Name: Benjamin Padnos Title: CEO Date: Today’s Date | Client’s Company Name
By: Name: Client Name Title: Client Title Date: |
| | |
EXHIBIT A
SERVICES AND INITIAL STATEMENT OF WORK
The Parties hereby agree that the following shall be included in the Services (as defined in the Recitals of the Agreement):
Objective: To provide promotional, advertising, and marketing services to support Client in the growth of its business by positioning the Client in front of Qualified Leads (as defined below) by scheduling meetings with the same, such meetings to be attended and executed by Client.
Qualified Lead: A “Qualified Lead” shall mean any high-net-worth individual, venture capital, family office, or similar investor known to or identified by Agency as having (a) potential interest in participating in investments, (b) experience in making previous investments
Approach: The approach will be to utilize Agency’s marketing network on top of cold outreach methods to schedule these calls.
REEF Outreach: Agency will provide Client with access to its REEF internal investor network. Client’s deck and presentation materials will be strategically shared among the network yielding warm introductions. A member of the Agency Personnel, as defined in the Agreement, will be dedicated to managing all of Client’s LinkedIn inboxes, responding to and following up with prospects as the cadence is defined.
Miscellaneous: Agency does not provide financial advice and, as such, will not be required to participate in meetings arranged by it on Client’s behalf. Agency will arrange for and participate in weekly update and strategy calls with the Client during the Term of this Agreement
FEES
Client shall pay Service Fees in the amount of five thousand dollars ($5,000) per month during the Term of the Agreement. Service Fees shall be due and payable in accordance with Section 3(A) of the Agreement. Client agrees to pay the Service Fees via automatic electronic funds transfer from an account designated by the Client.
IN WITNESS WHEREOF, this Statement of Work is executed by the Parties on the date set forth below.
AGENCY: | CLIENT: |
THINKFISH, LLC
By: Name: Benjamin Padnos Title: CEO Date: Today’s Date | Client’s Company Name
By: Name: Client Name Title: Client Title Date: |
