CONFIDENTIAL SERVICES AGREEMENT
Exhibit 10.2
This Confidential Services Agreement (hereinafter
referred to as "Agreement") is effective as of the
5th
day of
June, 2019 (hereinafter “the Effective Date”), by and
between ▇▇▇ ▇▇▇▇▇, LLC, a Nevada limited liability company,
(hereinafter referred to as "▇▇▇ ▇▇▇▇▇"), and Charlie’s Chalk
Dust, a California limited liability company, (hereinafter referred
to as "Contractor"). Contractor and ▇▇▇ ▇▇▇▇▇ shall collectively be
the “Parties”.
WHEREAS,
Contractor possess highly unique knowledge, skills, and abilities
including, but not limited to those involving the marketing, sale,
business development and customer service operations necessary to
significantly increase the sales of ▇▇▇ ▇▇▇▇▇’▇ products and
goods, develop and proliferate ▇▇▇ ▇▇▇▇▇’▇ brand, and enable
▇▇▇ ▇▇▇▇▇ to reach new customers, and markets while satisfying and
retaining existing customers; and
WHEREAS, ▇▇▇
▇▇▇▇▇ is distributor and purveyor of consumer goods infused with
cannabinoids including cannabidiol
(CBD)
who wishes to engage Contractor to perform Services so that ▇▇▇
▇▇▇▇▇ may utilize the same to increase the likelihood of its
profitability and commercial success.
NOW, THEREFORE, in
consideration of the mutual promises agreed to herein, the Parties
hereto agree as follows:
1. SERVICES.
1.1 Nature
of Services. Contractor
will, at ▇▇▇ ▇▇▇▇▇’▇ request, work on
the development
and creation, and will create, ▇▇▇ ▇▇▇▇▇’▇ sales strategy,
brand, brand development and brand strategy, marketing strategy,
and marketing collateral, customer service strategy and at ▇▇▇
▇▇▇▇▇’▇ request, perform sales functions, branding functions,
marketing functions, and functions relating to ▇▇▇ ▇▇▇▇▇’▇
customer service operations. Contractor understands the ▇▇▇ ▇▇▇▇▇
wishes to outsource this work to Contractor and the Parties agree
that Contractor will perform all of the above work, functions and
services (collectively, the “Services”)
as requested by and on behalf of ▇▇▇ ▇▇▇▇▇. The Parties agree that
the Services shall be done by Contractor exclusively on a
“work for hire basis”, as that term is understood
within the meaning of the Copyright Act of 1976, as amended. The
Parties agree that the Services have been and will be specifically
ordered and specifically commissioned by ▇▇▇ ▇▇▇▇▇. The Services
shall be requested by ▇▇▇ ▇▇▇▇▇ in person and/or via electronic
mail via an email address provided by ▇▇▇ ▇▇▇▇▇ to Contractor. ▇▇▇
▇▇▇▇▇ agrees that Contractor's services need not be rendered at any
specific location and may be rendered via email or other forms of
communication, whether virtually, remotely or in person, and at any
location selected by Contractor. Nothing in this Agreement shall
require or permit Contractor to exert any direction, management, or
control over ▇▇▇ ▇▇▇▇▇ in Contractor’s providing the Services
and nothing shall require or permit ▇▇▇ ▇▇▇▇▇ to exert any
direction, management or control over Contractor. Notwithstanding
the above, it is understood that ▇▇▇ ▇▇▇▇▇ shall provide guidance
to Contractor with respect to the Services so that Contractor, in
its capacity as an independent contractor may perform the Services
that ▇▇▇ ▇▇▇▇▇ specifically commissions Contractor to perform as an
independent contractor.
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2. Assignment.
To the
extent that any intellectual property Contractor creates in
connection with Contractor’s specially commissioned work for
▇▇▇ ▇▇▇▇▇ does not qualify as “work for hire”, within
the meaning of the Copyright Act of 1976, as amended, Contractor
hereby assigns to ▇▇▇ ▇▇▇▇▇ any right, title or interest that
Contractor may have or may be able to obtain with respect to such
specially commissioned work including all copyrights, trademarks,
patents, and other proprietary rights for valuable consideration
hereby acknowledged. Contractor further agrees to sign, upon 72
hours of request of any Commissioning ▇▇▇ ▇▇▇▇▇ any documents
needed to confirm such assignment to ▇▇▇
▇▇▇▇▇.
3. License.
Notwithstanding
the “Work for Hire” and “Assignment”
provisions above, in the event that Contractor is deemed to own or
have any intellectual property rights that are used, embodied, or
reflected in specially commissioned work for ▇▇▇ ▇▇▇▇▇, or any
component or derivative thereof, Contractor hereby grants ▇▇▇
▇▇▇▇▇, its successors and assigns, an irrevocable, perpetual,
exclusive, worldwide, royalty-free right and license to use,
execute, reproduce, display, and exploit all intellectual property
rights that Contractor may otherwise
have.
4. Authority.
Contractor
warrants and represents that (i) Contractor has the legal right and
authority to enter into this Agreement and perform its obligations
under this Agreement; (ii) the performance of Contractor’s
obligations hereunder will not violate any applicable laws or
regulations or cause a breach of any agreements with any third
parties; (iii) Contractor will perform the services required by
this Agreement in a professional and workmanlike manner in
accordance with the generally accepted professional standards in
effect at the time of such performance.
5. Remedies.
Contractor
agrees that any breach, or threatened breach, of this Agreement by
Contractor could cause irreparable damage to ▇▇▇ ▇▇▇▇▇ and that in
the event of such breach, or threatened breach, ▇▇▇ ▇▇▇▇▇ shall
have, in addition to any and all remedies of law, the right to an
injunction, specific performance and all other equitable relief to
prevent the violation of any of Contractor’s obligations
hereunder without the necessity of any proof of actual damages or
the posting of a bond or other security.
6. Inconsistent
Acts. Contractor
agrees that Contractor will take no act in furtherance of
Contractor’s obligations under this Agreement which may or
actually cause harm of any kind to ▇▇▇ ▇▇▇▇▇ or expose the ▇▇▇
▇▇▇▇▇ to liability for damages to Contractor, Contractor’s
youth athletes, spectators, parents or guardians of any youth
athlete or any third party.
7. Reimbursements.
▇▇▇
▇▇▇▇▇ will reimburse Contractor for all business expenses which are
preapproved in writing by ▇▇▇ ▇▇▇▇▇ and incurred or paid by
Contractor in the performance of Contractor’ duties and
responsibilities for ▇▇▇ ▇▇▇▇▇. Contractor agrees not to incur any
expense greater than $550.00 without written preapproval from ▇▇▇
▇▇▇▇▇. Contractor agrees that ▇▇▇ ▇▇▇▇▇ shall not be liable for any
expense which has not first been preapproved in
writing.
8. Termination
of Contractor. This
Agreement shall be unilaterally terminable by Contractor in
Contractor’s sole discretion, and terminable by Contractor at
any time Contractor wishes.
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8.1
Relationship of the Parties. Contractor
enters into this Agreement as, and shall continue to be, an
independent contractor. All Services shall be performed only by
Contractor. Under no circumstances shall Contractor, or any of
Contractor's employees, directors, or officers, look to ▇▇▇ ▇▇▇▇▇
as his/her employer, or as a partner, agent or principal, and vice
versa. Neither Contractor, nor any of Contractor's employees,
directors, or officers, shall be entitled to any benefits accorded
to ▇▇▇ ▇▇▇▇▇'▇ employees, including without limitation worker's
compensation, disability insurance, vacation, or sick pay.
Contractor, if it so choses in its sole discretion, shall be
responsible for providing, at Contractor's expense, and in
Contractor's name, unemployment, disability, worker's compensation
and other insurance to Contractor’s
employees.
9. Compensation.
In
exchange for providing the Services, ▇▇▇ ▇▇▇▇▇ shall pay to
Contractor the rate as set forth on “Exhibit A”
attached hereto and made part hereof. The rate set forth on Exhibit
A may be updated from time to time based on then-current market
conditions, upon mutual written agreement between the Parties.
Payment shall be made on a quarterly basis on a day agreed upon by
the Parties. No other fees and/or expenses will be paid to
Contractor, unless such fees and/or expenses have been approved in
advance by ▇▇▇ ▇▇▇▇▇ in writing. Contractor shall be solely
responsible for any and all taxes, Social Security contributions or
payments, disability insurance, unemployment taxes, and other
payroll type taxes applicable to such
compensation
10. Protection
of ▇▇▇ ▇▇▇▇▇'▇ Confidential Information.
10.1
Confidential Information.
▇▇▇
▇▇▇▇▇ now owns and will hereafter
develop,
compile and own certain proprietary techniques, trade secrets, and
confidential information which have great value in its business
(collectively, “▇▇▇
▇▇▇▇▇ Information”).
▇▇▇ ▇▇▇▇▇ may disclose ▇▇▇ ▇▇▇▇▇ Information to Contractor during
Contractor's performance of the Services. ▇▇▇ ▇▇▇▇▇ Information
includes not only information disclosed by ▇▇▇ ▇▇▇▇▇, but also
information developed or learned by Contractor during Contractor's
performance of the Services. ▇▇▇ ▇▇▇▇▇ Information is to be broadly
defined and includes all information which has or could have
commercial value or other utility in the business in which ▇▇▇
▇▇▇▇▇ is engaged or contemplates engaging or the unauthorized
disclosure of which could be detrimental to the interests of ▇▇▇
▇▇▇▇▇, whether or not such information is identified by ▇▇▇ ▇▇▇▇▇.
By way of example and without limitation, ▇▇▇ ▇▇▇▇▇ Information
includes any and all information concerning discoveries,
developments, designs, improvements, inventions, formulas, recipes,
software programs, processes, techniques, know-how, data, research
techniques, customer and supplier lists, marketing, sales, pricing
or other financial or business information, scripts, and all
derivatives, improvements and enhancements to any of the above. ▇▇▇
▇▇▇▇▇ Information also includes like third-party information, which
is in ▇▇▇ ▇▇▇▇▇'▇ possession under an obligation of confidential
treatment.
10.2
Protection of Confidential Information. Contractor
agrees that at all times during or subsequent to the performance of
the Services, Contractor will keep confidential and not divulge,
communicate, or use ▇▇▇ ▇▇▇▇▇ Information, except for Contractor's
own use during the Term of this Agreement to the extent necessary
to perform the Services. Contractor further agrees not to cause the
transmission, removal or transport of tangible embodiments of, or
electronic files containing, ▇▇▇ ▇▇▇▇▇ Information from ▇▇▇ ▇▇▇▇▇'▇
principal place of business, without prior written approval of ▇▇▇
▇▇▇▇▇.
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10.3 Exceptions.
Contractor's
obligations with respect to any portion of the ▇▇▇ ▇▇▇▇▇
Information as set forth above shall not apply when Contractor can
document that (i) it was in the public domain at the time it was
communicated to Contractor by ▇▇▇ ▇▇▇▇▇; (ii) it entered the public
domain subsequent to the time it was communicated to Contractor by
▇▇▇ ▇▇▇▇▇ through no fault of Contractor; (iii) it was in
Contractor's possession free of any obligation of confidence at the
time it was communicated to Contractor by ▇▇▇ ▇▇▇▇▇; or (iv) it was
rightfully communicated to Contractor free of any obligation of
confidence subsequent to the time it was communicated to Contractor
by ▇▇▇ ▇▇▇▇▇.
10.4
▇▇▇ ▇▇▇▇▇ Property.
All
materials, including without limitation
documents, drawings, drafts, notes, designs, computer media,
electronic files and lists, including all additions to, deletions
from, alterations of, and revisions in the foregoing (together
the “Materials”),
which are furnished to Contractor by ▇▇▇ ▇▇▇▇▇ or which are
developed in the process of performing the Services, or embody or
relate to the Services, the ▇▇▇ ▇▇▇▇▇ Information or the
Innovations (as defined below), are the property of ▇▇▇ ▇▇▇▇▇, and
shall be returned by Contractor to ▇▇▇ ▇▇▇▇▇ promptly at ▇▇▇
▇▇▇▇▇'▇ request together with any copies thereof, and in any event
promptly upon expiration or termination of this Agreement for any
reason. Contractor is granted no rights in or to such Materials,
the ▇▇▇ ▇▇▇▇▇ Information or the Innovations, except as necessary
to fulfill its obligations under this Agreement. Contractor shall
not use or disclose the Materials, ▇▇▇ ▇▇▇▇▇ Information or
Innovations to any third party.
11. Assignment
of Inventions & Copyrights.
11.1 Definition
of Inventions.
Contractor
understands that the term “Inventions”
in this Agreement means any and all ideas, concepts, inventions,
discoveries, developments, modifications, improvements, know-how,
trade secrets, data, designs, diagrams, plans, specifications,
methods, processes, techniques, formulas, algorithms, tools, works
of authorship, derivative works, software, content, textual or
artistic works, mask works, video, graphics, sound recordings,
structures, products, prototypes, systems, applications, creations
and technologies in any stage of development, whether or not
patentable or reduced to practice and whether or not
copyrightable.
11.2 Contractor
agrees that unless otherwise specified and agreed to by ▇▇▇ ▇▇▇▇▇
in writing, all Materials created or modified by Contractor in
connection with the Services, including, without limitation, all
Inventions, works of authorship, inventions, research,
developments, discoveries, processes, ideas, methods, concepts and
other tangible and intangible materials (collectively,
“Work
Product”),
shall be “work for hire” and that ▇▇▇ ▇▇▇▇▇ shall be
the exclusive owner of the Work Product and all intellectual
property rights associated with the Work Product, including all
trademarks, patents or copyrights contained therein. To the extent
any Work Product does not qualify as “work for hire,”
Contractor hereby assigns ownership of all such Work Product to ▇▇▇
▇▇▇▇▇. Contractor agrees to take all reasonable measures, to assist
▇▇▇ ▇▇▇▇▇ in perfecting all rights ▇▇▇ ▇▇▇▇▇ has in any Work
Product or intellectual property Contractor creates for ▇▇▇ ▇▇▇▇▇
pursuant to this Agreement. Contractor hereby appoints ▇▇▇ ▇▇▇▇▇ as
its attorney-in-fact with the limited power to execute assignments
of such Work Product and Inventions.
11.3
Assignment of Inventions.
Contractor
hereby assigns to ▇▇▇ ▇▇▇▇▇, the
entire right, title, and interest in and to the Inventions and Work
Product, and any and all applications for patent and patents in any
and all countries, including all divisions, continuations,
reissues, and extensions thereof and all rights of priority
resulting from the filing of any application. Contractor further
authorizes and requests any official whose duty it is to issue
patents to issue any patent on said invention or resulting
therefrom to ▇▇▇ ▇▇▇▇▇, or its successors, assigns, or nominees,
and Contractor agrees that on request and without further
consideration, but at the expense of ▇▇▇ ▇▇▇▇▇, Contractor will
communicate to ▇▇▇ ▇▇▇▇▇ or its representatives or nominees any
facts known to Contractor respecting said improvements and testify
in any legal proceedings, sign all lawful papers, execute all
divisional, continuing, and reissue applications, make all rightful
oaths, and generally aid ▇▇▇ ▇▇▇▇▇, its successors, assigns, and
nominees to obtain and enforce proper patent protection for said
invention in all countries.
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12.
Ownership
of Work Product and Inventions. Contractor
acknowledges that Work Product and Inventions and the associated
Intellectual Property Rights may have substantial economic value,
that any and all proceeds resulting from use and exploitation
thereof shall belong solely to ▇▇▇ ▇▇▇▇▇, except as otherwise
provided for in this Agreement, and that the compensation
Contractor receives from ▇▇▇ ▇▇▇▇▇ for the Services, Work Product
and Inventions Contractor provides ▇▇▇ ▇▇▇▇▇ under this Agreement
includes fair and adequate consideration per the work for hire
doctrine, and for all assignments and waivers hereunder so that
ownership of such Work Product, Inventions or other fruits of the
Services belong solely to ▇▇▇ ▇▇▇▇▇.
13. REPRESENTATIONS
AND WARRANTIES
13.1 Contractor
Representation and Warranty.
Contractor represents and
warrants that it has the right, power and authority to enter into
this Agreement and to grant the rights herein granted; that to
Contractor’s knowledge, ▇▇▇ ▇▇▇▇▇'▇ use of the Licensed
Artwork will not violate or infringe upon the right of any third
party.
13.2 ▇▇▇
▇▇▇▇▇ Representation and Warranty. ▇▇▇
▇▇▇▇▇ represents and
warrants that it has the right, power and authority to enter into
this Agreement and to fully perform all of its obligations
hereunder.
14. TERM
AND OPTION
14.1 Term.
This license shall commence on the Effective Date and shall
exist
in perpetuity, unless earlier terminated in accordance with the
terms and conditions set forth herein.
15. BOOKS
AND RECORDS
15.1 ▇▇▇
▇▇▇▇▇ shall keep complete books of account and records
in
accordance with generally accepted accounting principles of all
activities under this Agreement. Such books of account and records
shall be retained by ▇▇▇ ▇▇▇▇▇ and kept available for at least five
(5) years after the termination of this Agreement for possible
inspection, copying, extracting and/or audit by
Contractor.
15.2 Contractor
shall have the right to conduct audit with respect to the
books,
records, factory invoices and all other documents and material in
the possession or under the control of ▇▇▇ ▇▇▇▇▇ relating to this
Agreement, the cost of which shall be borne by the
Contractor.
16.
Confidentiality/Non-Disclosure. To
perform Services, Contractor understands it will be informed by or
create for, ▇▇▇ ▇▇▇▇▇ of highly confidential, valuable, trade
secret and otherwise protected information. Such highly
confidential and/or trade secret information includes but is not
limited to: a) the names, emails, contact information, phone
numbers, addresses of ▇▇▇ ▇▇▇▇▇’▇ customers, vendors, and
employees; b) costs and budgets incurred by ▇▇▇ ▇▇▇▇▇; c) strategic
plans; d) business strategies; and e) sales, marketing, business
development, branding, and customer service methodologies.
Contractor agrees that, during
Contractor’ term of engagement,
and at all times thereafter, not
to disclose to anyone, and separately, not use for the benefit of
Contractor or any third party any information which Contractor
knows or should reasonably know, is highly valuable, confidential,
secret, trade secret or otherwise protected information of ▇▇▇
▇▇▇▇▇ including the information described above (collectively
“Confidential Information”). Contractor shall not
disclose any Confidential Information that Contractor receives or
is otherwise privy to relative to its relationship with ▇▇▇
▇▇▇▇▇.
Contractor
further agrees and shall not at any time, use any such information
that has been garnered by or provided to Contractor, while engaged
by ▇▇▇ ▇▇▇▇▇ except in furtherance of the course of
Contractor’s engagement by ▇▇▇ ▇▇▇▇▇ hereunder, and if
Contractor’s engagement terminates, any such information
stored in any tangible medium will be returned or destroyed, as
directed by ▇▇▇ ▇▇▇▇▇. Contractor further represents that his
performance of all the terms of this Agreement, does not and will
not breach any other agreement Contractor is now or will in future
be bound by. Contractor agrees to keep in strict confidence all
proprietary information and Confidential Information acquired by
Contractor from ▇▇▇ ▇▇▇▇▇ and further agrees to not share any
Confidential Information with anyone. Contractor represents that
Contractor has not entered into, and will not enter into, any
agreement either written or oral in conflict herewith and shall not
enter into any such contract in future.
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A. “Highly
Confidential Information” shall
mean any information which Contractor knows or should reasonably
know is highly valuable, confidential, secret, trade secret or
otherwise protected information of ▇▇▇ ▇▇▇▇▇ whether, written or
oral, which Contractor knows or should reasonably know that, under
the circumstances, is proprietary or confidential. The Parties
agree and it is understood that
this Agreement is
itself, “Highly Confidential” in nature and is not to
be shared without prior written approval of the
Parties.
B. “Trade
secret”
shall mean information relative to ▇▇▇ ▇▇▇▇▇’▇ method of
operations, and objectives, trade partners, pricing information,
financial information utilized by ▇▇▇ ▇▇▇▇▇, custom computer
software or hardware, system documentation, product offerings,
manuals, processes, methods, inventions or other information or
materials relating to ▇▇▇ ▇▇▇▇▇’▇ affairs that are not
otherwise publicly available and for which steps are routinely
taken by ▇▇▇ ▇▇▇▇▇ to protect such trade secrets from disclosure.
Additionally, Contractor agrees that customer lists,
customers’ identities, contact information such as phone
numbers and e-mail addresses, vendor lists, vendors’
identities, vendors’ contact information including their
phone numbers and e-mail addresses, pricing lists, product
information and testing results, business and financial data,
information regarding marketing strategies and development of
operations, strategic partnerships or products in the United States
or abroad are specifically within the definition of trade secrets
for the purposes of this agreement, to the extent he are the result
of ▇▇▇ ▇▇▇▇▇’▇ work product and/or not generally known to the
public or to other persons who would otherwise obtain economic
value, actual or potential, should such information be
disclosed.
C. Non-Disclosure:
Contractor further agrees not to share with or use Confidential
Information, Highly Confidential Information or Trade Secret
information to anyone. Additionally, Contractor specifically agrees
not to share such information with anyone for the benefit of any
person or entity other than ▇▇▇ ▇▇▇▇▇, especially any competitor to
▇▇▇ ▇▇▇▇▇. This duty of non-disclosure shall be in perpetuity and
survive and continue in the event Contractor’s relationship
with ▇▇▇ ▇▇▇▇▇ ever ceases. Contractor explicitly acknowledges that
any such disclosure would constitute a misappropriation of
protected trade secrets, resulting in unfair competition to ▇▇▇
▇▇▇▇▇ and that Contractor shall be liable to ▇▇▇ ▇▇▇▇▇ for all
damages. In addition, although it may be self evident, Contractor
agrees that during Contractor’s engagement with ▇▇▇ ▇▇▇▇▇,
Contractor will not, directly or indirectly, lend any advice or
assistance, or engage in any activity or act in any manner, for the
purpose of establishing, operating, assisting or managing any
business or entity that is engaged in activities competitive with
the business of ▇▇▇ ▇▇▇▇▇ as it is conducted at any time during
Contractor’ engagement without the express and written
pre-approval of ▇▇▇ ▇▇▇▇▇. Contractor acknowledges that trade
secrets constitute a major asset of ▇▇▇ ▇▇▇▇▇, and that the use,
misappropriation or disclosure of trade secrets would constitute a
breach of trust and could cause irreparable injury to ▇▇▇ ▇▇▇▇▇ and
that it is essential for the protection of each ▇▇▇ ▇▇▇▇▇’▇
goodwill and maintenance of each Commissioning
▇▇▇ ▇▇▇▇▇’▇ competitive position that the trade secrets be
kept secret and that Contractor neither disclose the trade secrets
to others nor use the trade secrets to Contractor’ own
advantage or to the advantage of others during Contractor’
engagement or at any time after. Contractor expressly agrees that
any effort by Contractor to use such information, except as
authorized by each ▇▇▇ ▇▇▇▇▇, would constitute a violation of
Contractor’ fiduciary duties while engaged by each ▇▇▇
▇▇▇▇▇.
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D. Non-
Circumvent:
Contractor covenants that Contractor will not in any way, either on
Contractor’s own or via any corporate entity or individual
that Contractor may currently, in past or in future work with,
solicit any of ▇▇▇ ▇▇▇▇▇’▇ clients, employees or vendors to
engage in any business related to or competitive to, those
discussed and/or performed with ▇▇▇ ▇▇▇▇▇ without ▇▇▇ ▇▇▇▇▇’▇
written preapproval and consent. This non-circumvent obligation
shall exist throughout Contractor’s engagement with ▇▇▇ ▇▇▇▇▇
and extend for 4 years after the date of conclusion of the Term.
For purposes of clarity, ▇▇▇ ▇▇▇▇▇ does not wish to limit
Contractor’s ability to perform work, for competitors or
otherwise, however, ▇▇▇ ▇▇▇▇▇ and Contractor explicitly agree that
the intent of this non-circumvent clause is to protect ▇▇▇ ▇▇▇▇▇
from Contractor using ▇▇▇ ▇▇▇▇▇’▇ confidential customer
lists, emails, addresses, reports, consumer information and
profiles, intellectual property, trade secrets or business
relationships to benefit any third party especially any competitor
to ▇▇▇ ▇▇▇▇▇.
17. Non-Solicitation
of Business Partners, Clients, Staff, Contractors and
Independent
Contractors. Contractor
hereby acknowledges that the contact information of the each ▇▇▇
▇▇▇▇▇’▇ business partners, clients, affiliates, contractors
and independent contractors is confidential and that Contractor
will not solicit any such person engaged by any ▇▇▇ ▇▇▇▇▇ away from
the employ of any ▇▇▇ ▇▇▇▇▇ during the term of Contractor’
engagement and for a period of 4 (four) years after the conclusion
of the Term, without the express written preapproval of ▇▇▇
▇▇▇▇▇.
18.
Headings. The
headings of Sections herein are used for convenience only and shall
not affect the meaning of contents
hereof.
19.
Waiver; Amendment. No
provision hereof may be waived except by a written agreement signed
by the waiving party. The waiver of any term or of any condition of
this Agreement shall not be deemed to constitute the waiver of any
other term or condition. This Agreement may be amended only by a
written agreement signed by the parties
hereto.
20.
Severability. If
any of the provisions of this Agreement shall be held unenforceable
by the final determination of a court of competent jurisdiction and
all appeals there from shall have failed or the time for such
appeals shall have expired, such provision or provisions shall be
deemed eliminated from this Agreement but the remaining provisions
shall nevertheless be given full effect. In the event this
Agreement or any portion hereof is more restrictive than permitted
by the law of the jurisdiction in which enforcement is sought, this
Agreement or such portion shall be limited in that jurisdiction
only to the extent required by the law of that
jurisdiction.
21.
Governing Law. This
Agreement and any claim or controversy arising out of or relating
to it, shall be governed by and construed in accordance with the
laws of the State of California without regard to conflict of law
principles that would result in the application of any law other
than the law of the State of California . This Agreement shall be
binding on the parties, their affiliates, subsidiaries, successors
and assigns.
22.
Venue and Alternate Dispute Resolution. Notwithstanding
the provision pertaining to ▇▇▇ ▇▇▇▇▇’▇
unilateral right to seek equitable relief, the Parties
agree that any and all disputes concerning
Contractor’s relationship with ▇▇▇ ▇▇▇▇▇ will be heard before
an arbitrator in Orange County, California (the
“Arbitrator”). The Parties agree that the Parties shall
split the costs of Arbitration with respect to the
Arbitrator’s fees but that each Party shall bear its own
costs regarding Arbitration and attorney fees and that an disputes
that can not be resolved between them shall be submitted for
arbitration within 30 days upon notice of demand to
arbitrate.
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23.
Equitable Relief. In the
event of a breach or a threatened breach of any of the provisions
contained in this Agreement, Contractor acknowledges that ▇▇▇ ▇▇▇▇▇
will respectively, suffer irreparable injury not fully compensable
by money damages and, therefore, will not have an adequate remedy
available at law. Accordingly, ▇▇▇ ▇▇▇▇▇ shall be entitled to
obtain such injunctive relief or other equitable remedy from any
court of competent jurisdiction as may be necessary or appropriate
to prevent or curtail any such breach, threatened or actual,
without having to post bond. The foregoing shall be in addition to
and without prejudice to any other rights that ▇▇▇ ▇▇▇▇▇ may have
under this Agreement, at law or in equity, including, without
limitation, the right to ▇▇▇ for damages including attorney’s
fees for which Contractor agrees to be
liable
24.
NOTICES. All
notices required by this Agreement shall be in writing and shall be
transmitted by email.
To ▇▇▇ ▇▇▇▇▇:
Attn: ▇▇▇▇ ▇▇▇▇▇
email:▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
To Contractor:
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with copies for notice to both ▇▇▇ ▇▇▇▇▇ and Contractor to:
▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇;
▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
25.
GOVERNING LAW. This
Agreement is made in accordance with and shall be governed and
construed under the laws of the State of California, and of the
USA.
26.
FORCE MAJEURE. Neither
Party shall be in default of this Agreement by reasons of its delay
in the performance of, or failure to perform, any of its
undertakings if such delay or failure is caused by force majeure.
Force majeure includes, but is not limited to, strikes, riots,
fire, explosions, acts of God or public enemy, rebellions, civil
strife, interference by military authorities, compliance with
governmental statutes, rules, regulations, decrees, including
consent decrees, of courts of the Territory, and any other similar
event beyond a party's reasonable ability to control. The Party
unable to perform shall promptly notify the other Party and shall
use its best efforts to recommence performance as soon as possible.
The Party against whom force majeure is invoked shall have the
right to suspend performance of its obligations under this
agreement until resumption of full performance by the other
Party.
27.
NO AGENCY OR PARTNERSHIP. No
agency or partnership or joint venture of any sort is created by
this Agreement. Neither Party shall make any representation to the
contrary. Both Parties shall have the obligation to correct any
misunderstanding by any third party with respect to this Section,
if such misunderstanding is known to the
party.
28.
NO PARTY DEEMED DRAFTER. This
Agreement is to be deemed to have been
drafted
jointly by the Parties and any uncertainty or ambiguity shall not
be construed for or against either party based on attribution of
drafting by either party.
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29.
ASSIGNMENT/SUB-LICENSE. This
Agreement is not assignable by Contractor
without
the express, prior written consent of ▇▇▇ ▇▇▇▇▇, which shall not be
unreasonably withheld.
30.
NO WAIVER. A
failure of either party to exercise any right provided for herein
shall not be deemed to be a waiver of any right
hereunder.
31.
SEVERABILITY.
Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under
applicable law. Such provision shall be ineffective in the extent
of such prohibition or invalidity without invalidating the
remainder of such provision or the remaining provisions of this
Agreement. Any unenforceable provision will be replaced by a
mutually acceptable provision, which comes closest to the intention
of the parties at the time the original provision was agreed
upon.
32.
ENTIRE AGREEMENT. This
Agreement constitutes the entire, final, and complete Agreement
between the Parties with respect to Services and supersedes all
previous agreements or representations, written or oral, with
respect to Services. This Agreement may not be modified or amended
except in writing signed by a duly authorized representative of
each Party. In the event any provision of this Agreement is held to
be invalid or unenforceable, the valid or enforceable portion
thereof and the remaining provisions of this Agreement will remain
in full force and effect. Any waiver (express or implied) by either
Party of any default or breach of this Agreement shall not
constitute a waiver of any other or subsequent default or
breach.
The Parties hereto have each caused this Agreement to be signed and
delivered by its duly authorized representative as of the date
first written above.
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▇▇▇
▇▇▇▇▇, LLC
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CONTRACTOR
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/s/
▇▇▇▇ ▇▇▇▇▇
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇
▇▇▇▇▇
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▇▇▇▇▇▇▇
▇▇▇▇▇
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▇▇▇
▇▇▇▇▇, LLC
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Charlie’s
Chalk Dust, LLC
|
|
Date:
06/05/2019
|
Date:
06/05/2019
|
APPENDIX A to SERVICE AGREEMENT
PAYMENT TO CHARLIE’S CHALK DUST FOR SERVICES AND
RIGHTS
▇▇▇ ▇▇▇▇▇, LLC, shall pay to Charlie’s Chalk Dust, LLC,
twenty five percent (25%) of “Net Profits” of ▇▇▇
▇▇▇▇▇, LLC. “Net Profits” is defined as “all net
sales less all costs and expenses to operate ▇▇▇ ▇▇▇▇▇ LLC’s
business.” All payment to Charlie’s Chalk Dust, LLC
shall be payable within 45 days at the close of each of ▇▇▇ ▇▇▇▇▇
LLC’s fiscal quarters.
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