Platform Account Contract (this “Agreement”) is a binding agreement between you (“User”
or “you”) and SRAX, Inc., with an address at 000 Xxxxxx Xx. Xxx Xxxxxxx, XX 00000 (“Company”).
This Agreement governs your use of the Platform (as defined below) made available to you by the Company, including through the
Website (as defined below), and is effective as of the date of presentation and acceptance by you as set forth in the following
paragraph (including through the Website and/or Platform). Each of Company and User may be referred to herein as a “party”
and collectively as the “Parties.”
terms not defined herein will have the meaning ascribed to them in the Standard Terms and Conditions for Internet Advertising
for Media Buys of One Year or Less (Terms and Conditions), a copy of which are attached hereto as Exhibit A.
Additionally, with regard to any inconsistent or contradictory terms or conditions contained in the Terms and Conditions or the
IO, the terms contained in this Agreement will govern. All Capitalized terms defined herein shall have the following meanings:
Access Exception means any failure or delay to provide access to or aspects of the Platform due to:
interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Company
pursuant to this Agreement; (b) strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, pandemic, hostilities,
war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical
power, heat, light, air conditioning, or loss and destruction of property; (c) User’s or any Authorized User’s negligence
or breach of this Agreement; (d) regularly scheduled downtime for purposes of upgrading and maintaining the Platform and Website;
and (e) any other causes beyond Company’s reasonable control.
Users means those employees of the Company explicitly authorized by the Company to access and use the Platform in accordance
with this Agreement.
Commission means the United States Securities and Exchange Commission.
Common Stock means the common stock of the User.
Data User has the meaning set forth in Section 4(a).
Effective Date shall mean the date on which the User accepts this Agreement as described herein.
Fees means the following pursuant to this Agreement:
access: $18,000 for access to the Platform for a 12-month period from the Effective Date. This platform access fee is
non-cancelable and will be deemed fully earned when paid.
User hereby agrees to a non-cancelable purchase of Deliverables from the Company in the amount of $130,000. The purchase price
will be paid on the Effective Date of this Agreement and made pursuant to a valid IO.
Fees may be assessed if the Depository Trust Company (“DTC”) or Non-Objecting Beneficial Owner (“NOBO”)
lists exceed 5,000 Stakeholders or the frequency of these imports exceeds once per calendar week for DTC and once per calendar
month for NOBO. These assessments will represent the actual cost to SRAX, without markup.
Company will provide creative required to fulfill “Deliverables” as needed which may include: landing page,
IAB standard display ad units, placements within various social media outlets and email composition. In addition, company will
spend a reasonable amount of time in design consultation, development, edits and changes.
means an Insertion Order, entered into by the User and the Company, in substantially the same form as attached hereto as Exhibit
Legend Removal Date has the meaning set forth in Section 7(b).
Permitted Use has the meaning set forth in Section 4(a).
means the SRAX IR platform that the user will utilize pursuant to the terms of this Agreement.
Purchase Price means the closing price of User’s Common Stock on the Effective Date.
Restricted Party means any third-party designated as such by User in writing from time-to-time.
Revenue Share Data Sale has the meaning set forth in Section 4(a).
144 means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose
and effect as Rule 144.
Act means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
Stakeholder means a holder of a security issued by User.
Information means aggregation of anonymous Stakeholder data derived from User’s use of the Platform but in no event
will it include Personally Identifiable Information (“PPI”) unless Stakeholder specifically consent to the use of
their PPI by [*].
Term has the meaning set forth in Section 6(a).
as the same may be updated from time-to-time in accordance with the terms thereof.
Trading Day means a day on which the principal Trading Market is open for trading.
Market means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York
Stock Exchange or the OTC Bulletin Board (or any successors to any of the foregoing).
User’s Revenue Share has the meaning set forth in Section 5(b).
VWAP means, for any date, the price determined by the first of the following clauses that applies:
if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock
for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported
by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the OTC
Bulletin Board is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding
date) on the OTC Bulletin Board, (c) if the Common Stock is not then listed or quoted for trading on the OTC Bulletin Board and
if prices for the Common Stock are then reported in the “Pink Sheets” published by Pink OTC Markets, Inc. (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock
so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser
selected in good faith by the Company and reasonably acceptable to the User, the fees and expenses of which appraiser shall be
paid by the User.
Website means the website and any web based applications and any content, functionality, and services offered on or through,
available at: xxxx://xxxxxx.xxx.
. Subject to and conditioned on User’s payment of the Fees and compliance with all other terms and conditions of this
Agreement, Company hereby grants User a non-exclusive, non-transferable and non- sublicensable right to access and use the Platform
during the Term, solely by the Authorized Users for User’s own internal business purposes, and in accordance with the terms
and conditions of this Agreement. Company reserves all rights in or to the Platform not expressly granted to User in this Agreement.
Access . The Platform is accessible through the Website (and may eventually be accessible through a mobile application) and
in and made part of this Agreement as if fully contained herein. Each reference to the “Agreement” shall be deemed
the terms of this Agreement shall prevail.
to the terms of this Agreement, Company shall use commercially reasonable efforts to make access to the Platform available 24
hours per day and 7 days per week. If access to the Platform is available less than 99% of the time in any calendar month for
reasons not constituting an Access Exception, then, following User’s written request, Company will provide User a credit
equal to 10% of the Fees due for such month for each percentage point by which such uptime commitment is missed (for example,
if access to the Platform was available 98% - 98.9% of the time in a month, the credit would be equal to 10%, and if access to
the Platform was available 97% - 97.9% of the time, the credit would be equal to 20%), up to a maximum of the full amount of Fees
due for such month. Any credit will be applied to the next month’s Fees due hereunder and, if this Agreement terminates
prior to application of the applicable credit, such credit shall be treated as a reimbursement obligation by Company. This Agreement
does not entitle User to any support for the Platform.
may update or modify the Platform from time to time at Company’s sole discretion, and may require User to obtain and use
the most recent version(s); provided, that if any such update materially decreases the functionality of the Platform, User may,
at any time within 30 days of implementation of such updates and as its sole remedy, terminate this Agreement with 15 days prior
written notice to Company.
is responsible and liable for all uses of the Platform resulting from access provided to User, directly or indirectly, whether
such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, User is
responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute
a breach of this Agreement if taken by User will be deemed a breach of this Agreement by User. User shall use reasonable efforts
to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the
Platform, and shall cause Authorized Users to comply with such provisions.
is responsible for supplying access to all data necessary to make use of the Platform, including NOBO and/or SPR data. User agrees
to provide all the necessary documents requested by the Company to grant them access to said data.
is responsible for complying with all federal, state, and local laws, ordinances, codes, rules, regulations, judgments, decrees,
orders including securities laws related to the User’s securities and as applicable to User and its securities.
Share Data Sales. Subject to the terms of this Agreement, including Section 5(c), Company may grant third parties (“Data
Users”) a right to use the Stakeholder Information for purposes of marketing products, services and opportunities to
the Stakeholders identified in the Stakeholder Information (the “Permitted Use”) in exchange for consideration
to be negotiated by Company in its sole discretion with any such Data Users (any such transaction, a “Revenue Share Data
Sale”). As used herein, “Revenue Share Data Sale” means only the sale of the data underlying the Stakeholder
Information, and not any related media sales.
Parties. Notwithstanding the foregoing, if the Data User is a Restricted Party, Company shall not grant, or enter any agreement
to grant, such Restricted Party any rights in or to the Stakeholder Information without the prior written consent of User. If
the Data User is not a Restricted Party, no prior consent is required.
of Data Sales. Upon entering a Revenue Share Data Sale, Company shall promptly notify User and provide User information regarding
the identity of the applicable Data User and the consideration payable to Company (or how such consideration will be determined
and calculated) in connection with the Revenue Share Data Sale.
License. User hereby grants Company a right and license to use the Stakeholder Information for the Permitted Use and such
right and license shall continue on a perpetual basis, notwithstanding any expiration or termination of this Agreement, until
(i) User notifies Company in writing that it is terminating such right and license, and (ii) any agreement between Company and
a Data User for Revenue Share Data Sales has expired.
Reserved. As between the parties, User shall remain the owner of the Stakeholder Information and reserves all rights therein
except as explicitly set forth in this Agreement.
Authority. User represents and warrants that if applicable, it has the right, power and authority and has obtained all consents
necessary to provide the Stakeholder Information and grant the rights contained in this Article 4, including granting Company
the right to use, and grant use of, Stakeholder Information for the Permitted Use, and that use of the Stakeholder Information
for the Permitted Use by Company and/or Data Users is permitted by applicable law. Provided however that in the event the Stakeholder
Information contains PPI, User will provide the Company with copies of such consents. User shall indemnify, defend and hold harmless
Company and its affiliates from any claims, actions, damages, losses, liabilities, costs and expenses (including reasonable attorney’s
fees) incurred by Company and related to a breach of the preceding sentence.
As payment for the Fees (excluding Additional Fees) User will issue the Company such number of shares of Common Stock equal to
the aggregate amount of Fees divided the Purchase Price (“Shares”).
Additional Fees. The Additional Fees, if any, will be billed to your credit card on file during that Term.
Share. During the Term, Company shall pay User 50% of gross profits generated and actually received by Company from Data Users
in connection with each Revenue Share Data Sale (the “User’s Revenue Share”). User’s Revenue Share shall
be calculated by Company monthly and User’s Revenue Share for any particular month during the Term shall be paid by Company
to User on or before the last day of the month following the month in which User’s Revenue Share is earned (e.g., User’s
Revenue Share tied to gross profits generated and actually received by the Company in December will be paid by the Company on
or before January 31).
User is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed
by any federal, state, or local governmental or regulatory authority on any amounts payable by or to User hereunder, other than
any taxes imposed on Company’s income.
The initial term of this Agreement begins on the Effective Date and continues as a one (1) year subscription from such date (the
“Initial Term”). This Agreement will automatically renew on a month-to-month basis after the first year until either
party gives the other party written notice of non-renewal at least 30 days prior to the expiration of the then-current term “Renewal
Term”. Collectively, the Initial Term and any subsequent Renewal Term will be referred to as the “Term.”
In addition to any other express termination right set forth in this Agreement: either party may terminate this Agreement, effective
is incapable of cure, or being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party
User acknowledges that it will not be entitled to a refund of any Fees and that the Fees are deemed earned by the Company on the
Effective Date. Upon termination of this Agreement, User shall immediately lose access to the Platform and any of User’s
data derived from the Platform, including Stakeholder Data.
The provisions set forth in Sections 1, 4(d)-(f), 5, 6, 7 and 8 of this Agreement, and any other right or obligation of the parties
in this Agreement, by its nature, should survive termination or expiration of this Agreement (including any terms related to ownership
of intellectual property, confidentiality or indemnification), will survive any expiration or termination of this Agreement.
Agreements of the Parties|
of Shares. User acknowledges and agrees that Company may from time to time pledge pursuant to a bona fide margin agreement
with a registered broker-dealer or grant a security interest in some or all of the Shares to a financial institution that is an
“accredited investor” as defined in Rule 501(a) under the Securities Act and, if required under the terms of such
arrangement, the Company may transfer pledged or secured Shares to the pledgees or secured parties. Such a pledge or transfer
would not be subject to approval of the User and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall
be required in connection therewith. Further, no notice shall be required of such pledge. User will execute and deliver such reasonable
documentation as a pledgee or secured party of Shares may reasonably request in connection with a pledge or transfer of the Shares.
Removal of Restrictive Legend.
evidencing the Shares shall not contain any legend, (i) while a registration statement covering the resale of such Shares is effective
under the Securities Act, (ii) following any sale of such Shares pursuant to Rule 144, (iii) if such Shares are eligible for sale
under Rule 144, without the requirement for the User to be in compliance with the current public information required under Rule
144 as to such Shares and without volume or manner-of-sale restrictions, or (iv) if such legend is not required under applicable
requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission).
The User shall cause its counsel to issue a legal opinion to its transfer agent promptly (and at no further cost to the Company)
at any time after the Effective Date if the requirements of Rule 144 have been met, if required by the transfer agent to effect
the removal of the legend contained on the Shares. The User agrees that at such time as a restrictive legend is no longer required
pursuant to Rule 144, it will, no later than three Trading Days following the delivery by the Company to the User or the transfer
agent of a certificate representing Shares issued with a restrictive legend (such third Trading Day, the “Legend Removal
Date”), deliver or cause to be delivered to the Company a certificate representing such Shares that is free from all restrictive
and other legends. Certificates for the Shares subject to legend removal hereunder shall be transmitted by the transfer agent
to the Company by crediting the account of the Company’s prime broker with the Depository Trust Company System as directed
by the Company.
Liquidated Damages. In addition to the Company’s other available remedies, the User shall pay to the Company, in cash,
as partial liquidated damages and not as a penalty, for each $1,000 of value of Shares (based on the VWAP of the Common Stock
on the date such Shares are submitted to the transfer agent) delivered for removal of the restrictive legend, $10 per Trading
Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after
the Legend Removal Date until such certificate is delivered without a legend. Nothing herein shall limit Company’s right
to pursue actual damages for the User’s failure to deliver certificates representing any Shares, and the Company shall have
the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance
and/or injunctive relief.
of Attorney. User irrevocably appoints the Company as User’s attorney-in-fact, with full authority in the place and
instead of such User and in the name of such User, from time to time in the Company’s discretion, to take any action and
to execute any instrument in order to effectuate the removal of a restricted legend from any certificate evidencing the Shares,
including providing the transfer agent an opinion of counsel, if required, and instructing the transfer agent to remove the restrictive
legend from the Shares. This power of attorney is coupled with an interest and shall be irrevocable for the term of this Agreement
and thereafter as long as the Company is the owner of the Shares
Election of Remedies. User acknowledges that Company’s exercise of its Power of Attorney as provided for in 7(c)(iii)
is not an election of remedies. The remedies contained in this Section 7 are intended to be cumulative.
Each party shall deliver all communications in writing either in person, by certified or registered mail, return receipt requested
and postage prepaid, by email (with confirmation of transmission), or by recognized overnight courier service, and addressed to
the other party at the addresses set forth above (or to such other address that the receiving party may designate from time to
time in accordance with this section).
Materials. Company may reference its relationship with User on Company’s website and in its marketing materials; provided,
that, Company’s specific use of User’s name is subject to User’s prior written consent, which consent shall
not be unreasonably withheld.
Agreement. This Agreement and the Exhibits hereto, including any terms incorporated herein, contains the entire understanding
of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written or oral understandings,
agreements, representations, and warranties with respect to such subject matter. The headings in this Agreement are for reference
only and do not affect the interpretation of this Agreement.
Neither party may assign its rights or delegate its obligations without the express prior written consent of the other party,
which consent may not be unreasonably withheld. Notwithstanding the foregoing, this Agreement may be assigned without consent
of the other party if there is a sale, merger or acquisition of all or a majority of the assets of a party, or if there is a sale
of a controlling interest of such Party. This Agreement is binding upon and inures to the benefit of the parties hereto and their
respective permitted successors and permitted assigns.
Amendment or Waiver. The parties may not amend this Agreement except by written instrument signed by the parties. No waiver
by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party
so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy,
power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or of any other right,
remedy, power or privilege. Notwithstanding the foregoing, nothing herein shall be deemed to limit Company’s ability to
an amendment or waiver of any provision of this Agreement.
If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended
to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in
full force and effect.
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WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective duly authorized representatives as
of the Effective Date.
B Corp. |
shall not trade more than 15% of the “Users” current or previous days total volume on the same or following day.
recognizes that “User” is a cannabidiol (CBD) based company and may be in involved both manufacture and distribution
of related products.
will provide “Company” with DTC information. “Company” will not be purchasing DTC on behalf of “User”.