Service Agreement – Financial Advisors

This Services Agreement (this “Agreement”), dated as of date signed (the “Effective Date”), is by and between Cultivating Digital Inc., a Tennessee corporation with offices located in Hixson, TN (the “Agency”) and the undersigned (“Customer” and together with Agency, the “Parties,” and each a “Party”).

WHEREAS the Agency has the capability and capacity to provide certain web design, digital, and traditional marketing services; and

WHEREAS Customer desires to retain the Agency to provide the said services, and the Agency is willing to perform such services under the terms and conditions hereinafter set forth;

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Agency and Customer agree as follows:

1. Services – The Agency shall provide to Customer the services (the “Services”) set out in one or more statements of work to be issued by Customer and accepted by the Agency (each, a “Statement of Work”). The initial accepted Statement of Work is attached hereto as Exhibit A. Additional Statements of Work shall be deemed issued and accepted only if signed by the Agency and the Customer or their duly authorized representatives appointed pursuant to Section 2.1(a) and Section 3.1, respectively.
2. Agency Obligations. The Agency shall:
   1. Designate employees or contractors that it determines, in its sole discretion, to be capable of filling the following positions:
      • A primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement (the “Agency Contract Manager”).
      • A number of employees or contractors that it deems sufficient to perform the Services set out in each Statement of Work, (collectively, with the Agency Contract Manager, “Provider Representatives”).
   2. Make no changes in Provider Representatives except:
      • Following notice to Customer.
      • Upon the resignation, termination, death or disability of an existing Provider Representative.
      • At the reasonable request of Customer, in which case the Agency shall use reasonable efforts to appoint a replacement at the earliest time it determines to be commercially viable.
   3. Maintain complete and accurate records relating to the provision of the Services under this Agreement, including the records of the time spent and materials used by the Agency in providing the Services. During the Term, upon Customer’s written request, the Agency shall allow Customer or the Customer’s representative to inspect and make copies of such records in connection with the provision of the Services; provided that Customer provides the Agency with at least twenty (20) business days advance written notice of such request.
3. Customer Obligations. Customer shall:
   1. Designate one of its employees to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Customer Contract Manager”), with such designation to remain in force unless and until a successor Customer Contract Manager is appointed.
   2. Require that the Customer Contract Manager respond promptly to any reasonable requests from the Agency for instructions, information, or approvals required by the Agency to provide the Services.
   3. Cooperate with the Agency in its performance of the Services and provide access to Customer’s premises, employees, contractors, and equipment as required to enable the Agency to provide the Services.
   4. Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in the Agency’s provision of the Services.
4. Fees and Expenses.
   1. In consideration of the provision of the Services by the Agency and the rights granted to Customer under this Agreement, Customer shall pay the fees set out in the attached hereto Statement of Work. Payment to the Agency of such fees and the payment of expenses pursuant to this Section 4 shall constitute payment in full for the performance of the Services. Unless otherwise provided in the applicable Statement of Work, said fees shall be payable in advance of the Services to be rendered and in no event later than ten (10) business days of receipt by the Customer of an invoice from the Agency pursuant to the applicable Statement of Work.
   2. Customer shall pay in advance to the Agency for all reasonable expenses to be incurred in accordance with the Statement of Work and within ten (10) business days of receipt by the Customer of an invoice from the Agency accompanied by reasonable estimates, receipts, third-party invoices, and other reasonable supporting documentation. Any differences between the estimated and actual costs incurred in connection with the Services will be adjusted in the subsequent the Agency’s invoice(s). Any additional expenses or incurred costs outside of the initial estimate must be approved in advance by the customer.  
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   4. Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of (a) the rate of five percent (5%) per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse the Agency for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and costs. In addition to all other remedies available under this Agreement or at law (which the Agency does not waive by the exercise of any rights hereunder), the Agency shall be entitled to suspend the provision of any Services if the Customer fails to pay any amounts/fees when due hereunder and such failure continues for thirty (30) calendar days following written notice thereof.
5. Limited Warranty and Limitation of Liability.
   1. The Agency warrants that it shall perform the Services:
      • In accordance with the terms and subject to the conditions set out in the respective Statement of Work and this Agreement.
      • Using personnel of commercially reasonable industry standards and required skill, experience, and qualifications.
      • In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
   2. Each party’s liability to the other party and remedy for breach of this warranty shall be as follows:
      • The parties shall use reasonable commercial efforts to promptly cure any such breach; provided, that if the Agency cannot cure such breach within a reasonable time (but no more than sixty (60) days) after Customer’s written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 8.2.  
      • In the event the Agreement is terminated pursuant to Section 5.2(a) above, the Agency shall within thirty (30) calendar days after the effective date of termination, refund to Customer any fees paid by the Customer as of the date of termination for the Service or Deliverables (as defined in Section 6 below), less a deduction equal to the fees for receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis. 
      • The foregoing remedy shall not be available unless Customer provides written notice of such breach within thirty (30) calendar days after the delivery of such Service or Deliverable to Customer.
   3. THE AGENCY MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 5.1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
6. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the Agency in the course of performing the Services, including any items identified as such in the Statement of Work (collectively, the “Deliverables”) shall be exclusively owned by Customer and shall be considered works made for hire by Agency for Customer. Customer shall exclusively own all United States and international copyrights and all other intellectual property rights in the Deliverables.
7. Confidentiality. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within ten (10) days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third Party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
   If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 7 only, Receiving Party’s Group shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, the Agency’s, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
8. Term, Termination, and Survival.
   1. This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services under all applicable Statments of Work (the “Term”) unless sooner terminated pursuant to Section 8.2 or Section 8.3 hereof.
   2. Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”) or if the Defaulting Party:
      • Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach.
      • Becomes insolvent or admits its inability to pay its debts generally as they become due.
      • Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within ten (10) business days or is not dismissed or vacated within fourty-five (45) business days after filing.
      • Is dissolved or liquidated or takes any corporate action for such purpose.
      • Makes a general assignment for the benefit of creditors.
      • Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
   3. Notwithstanding anything to the contrary in Section 8.2(a), the Agency may terminate this Agreement before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder: (a) and such failure continues for thirdty (30) calendar days after Customer’s receipt of written notice of nonpayment; or (b) more than three (3) times in any six month period;
   4. The rights and obligations of the Parties set forth in this Section 8.4 and in Sections 5, 6, 7, and 9, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
9. Limitation of Liability.
   1. IN NO EVENT SHALL EITHER Party BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
   2. IN NO EVENT SHALL EITHER PARTY’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, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO the AGENCY PURSUANT TO THE APPLICABLE STATEMENT OF WORK IN THE twelve months PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
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11. Entire Agreement. This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments and appendices, constitutes the sole and entire Agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work, the terms and conditions of this Agreement shall supersede and control.
12. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier 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) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 12.
13. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to/the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
14. Amendments. 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.
15. Waiver. No waiver by any Party of any of the provisions of this Agreement 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 right, 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 the exercise of any other right, remedy, power or privilege.
16. Assignment. Customer shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the Agency. Any purported assignment or delegation in violation of this Section 16 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. The Agency may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of the Agency’s assets without Customer’s consent; provided, however, that any such assignee will be subject to the terms and conditions hereof.
17. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
18. Relationship of the Parties. The relationship between the Parties is that of independent contractors. The details of the method and manner for the performance of the Services by the Agency shall be under its own control, Customer being interested only in the results thereof. The Agency shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services.  Nothing in this Agreement shall give the Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services.  The Services must meet the Customer’s final approval and shall be subject to the Customer’s general right of inspection throughout the performance of the Services and to secure satisfactory final completion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
19. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
20. Choice of Law. This Agreement and all related documents including all exhibits 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 Tennessee, 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 Tennessee.
21. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than the District of Tennessee, or, if such court does not have subject matter jurisdiction, the courts of the State of Tennessee, and any appellate court from any thereof. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
22. 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. Notwithstanding anything to the contrary in Section 12, 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.
23. Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Customer to make payments to the Agency hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, other potential disaster(s) or catastrophe(s), such as epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and(i) other imilar events beyond the reasonable control of the Impacted Party. 
    The Impacted Party shall give notice within ten (10) business days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.