This Services Agreement (this “Agreement”) is made and entered into as of July 5, 2022 (the “Effective Date”), by and between Assistagram LLC, an Iowa limited liability company (“Contractor”), and (“Client”). Contractor and Client shall each be referred to herein individually as a “Party,” and collectively as the “Parties.”
WHEREAS, Client desires to engage Contractor as an independent contractor to provide the Services (as defined below), and Contractor desires to accept such engagement, all on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree to the foregoing and as follows:
Generally. During the Term (as defined below), Contractor shall undertake and perform certain services for Client as set forth in Schedule A (collectively, the “Services”), as the same may be amended from time to time by mutual agreement of the Parties. Contractor shall perform the Services in a professional and workmanlike manner.
Client Obligations. In addition to, and without limiting, any other obligations set forth herein, Client shall: (i) cooperate with Contractor and respond promptly to any reasonable requests from Contractor for instructions, information, materials, or approvals required by Contractor to provide the Services or as otherwise reasonably needed for Contractor to exercise its rights or perform its obligations hereunder; (ii) take all steps necessary to prevent Client-caused delays in Contractor’s provision of the Services; and (iii) be responsible for carefully checking and approving the accuracy of all Work Product (as defined below) produced by Contractor and delivered to Client in all respects including, without limitation, logos, post content, images, spelling, business details, and information contained in press articles. Contractor shall not be liable for any errors or omissions in any such Work Product that is approved by Client. Contractor shall not be responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by: (x) Client’s delay in performing, or failure to perform, any of its obligations under this Agreement; or (y) or arising from any Force Majeure Events (as defined below). In addition, Client shall be solely responsible and liable for ensuring that the operation of its business, including, but not limited to, the use, marketing, advertisement or other exploitation of any Services and/or Work Product complies with Applicable Law (as defined below). For the avoidance of doubt, and by way of example, Client shall be responsible for ensuring that any content, information or claims provided by Client to be used by Contractor in performance of any Services, comply with Applicable Law and contain true and accurate statements and, to the extent applicable, fully-substantiated marketing claims.
Third-Party Providers. Contractor may, in its sole discretion, use third-party service providers or subcontractors from time to time to provide or assist with the Services. Subject to the terms and conditions of this Agreement, Contractor shall remain responsible and liable for any and all performance of its obligations under this Agreement.
Equipment and Materials. Contractor shall furnish all equipment, tools, materials and labor used to perform the Services. Contractor may set Contractor’s own hours and location of work, provided that the results of the Services are delivered within any timeframe(s) mutually approved by the Parties.
Fees; Expenses and Taxes.
Payment of Fees. In consideration of the Services and the rights granted to Client hereunder, Client shall pay Contractor the fees as set forth in Schedule A. All payments hereunder shall be non-refundable and non-recoupable.
Expenses. Only those costs and expenses of performing the Services that are pre-approved in writing by Client will be reimbursed or paid for by Client.
Late Payments. Client will pay interest, at a rate equal to the lesser of one and one-half percent (1.5%) per month (or part thereof) or the maximum legal rate permitted, on any amounts owed by Client hereunder that are not received by Contractor when due, other than such amounts that are disputed in such good faith during the pendency of the relevant dispute. In addition, Contractor shall have the right to suspend Services when any undisputed amount required to be paid by Client remains due and unpaid beyond the date such amount is due; provided, however, Contractor shall provide Client with advance written notice of at least five (5) business days’ prior to any suspension of Services. Any suspension of Services by Contractor as a result of Client’s failure to make payment as required will extend any applicable due dates of the Services to the extent impacted by such suspension or delay.
Taxes; No Withholding. Each Party shall be solely responsible for any taxes or assessments applicable to its rights or performance under this Agreement. The Parties acknowledge and agree that payments for the Services are not subject to withholding or deductions of any kind, and that Client will not withhold on Contractor’s behalf the payment of any social security, federal, state, or any other employee payroll tax, nor will Client withhold any state, provincial, or federal income tax. Client agrees to regularly report amounts paid to Contractor on Form 1099-MISC with the Internal Revenue Service (and/or equivalent information return to state tax authorities) as required by Applicable Law, and agrees to timely provide such Form 1099-MISC (and/or state equivalent information return) to Contractor.
Term and Termination.
Term. The term of this Agreement shall commence as of the Effective Date and shall continue in full force and effect for a term of 12 consecutive, calendar months unless terminated earlier as set forth herein (the “Term”).
Termination for Breach. This Agreement may be terminated by either Party if the other Party is in material breach of any obligation under this Agreement and, if capable of cure, fails to cure such default or breach within thirty (30) days after receiving written notice thereof (such notice specifying in reasonable detail the nature of such default or breach and such action(s) the breaching Party must take in order to cure each such item of default or breach).
Termination for Convenience. Either Party may terminate this Agreement, for any reason or for no reason, upon not less than thirty (30) days’ prior written notice to the other Party; provided, however, that neither Party shall be permitted to terminate this Agreement pursuant to this Section 3(c) during the three (3) month period commencing as of the Effective Date.
Effect of Termination. Upon termination of this Agreement for any reason, Client shall be required to pay Contractor any compensation due and payable as of the applicable termination date, as such compensation becomes due in accordance with Schedule A.
Confidential Information. For purposes of this Agreement, “Confidential Information” means all non-public or proprietary information of any kind, type or nature, in all cases regardless of whether disclosed orally or in writing and regardless of whether such information was identified as confidential, pertaining in any manner to a Party or its affiliates, including, without limitation, information relating to business plans, financial projections, investor or customer lists, business forecasts, research, technical data, know-how, inventions, trade secrets, recipes, formulas, processes, designs, drawings, marketing, Work Product, the terms of this Agreement, or other information considered to be confidential or proprietary or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary.
Non-Disclosure of Confidential Information. During and after the Term, the Party (the “Receiving Party”) who has received, or learned of, any Confidential Information of the other Party (the “Disclosing Party”) agrees not to, without the prior written approval of the Disclosing Party, (i) use any such Confidential Information for the Receiving Party’s own use or for any purpose except as contemplated under this Agreement, or (ii) disclose any Confidential Information of the Disclosing Party to third parties other than the Receiving Party’s personnel, agents and representatives, in each case who need to know such Confidential Information in connection with this Agreement, provided that such parties are bound by confidentiality obligations no less stringent than those contained herein and provided further that any breach by such parties shall be treated as a breach by the Receiving Party. The Receiving Party may disclose the Disclosing Party’s Confidential Information if required pursuant to Applicable Law; provided, however, that the Receiving Party discloses only such information as is required, and unless prohibited by Applicable Law, uses reasonable efforts to immediately notify the Disclosing Party in writing and take reasonable steps to assist the Disclosing Party in requesting confidential treatment or otherwise protecting the Disclosing Party’s Confidential Information. All Confidential Information of the Disclosing Party is, and will remain, the property of the Disclosing Party. Each Party acknowledges that its breach of the confidentiality obligations set forth in this Section 4 may cause irreparable harm for which the other Party shall be entitled to seek injunctive or other equitable relief, without the necessity of posting bond or any other deposit, and without limiting each Party’s other remedies available at law or otherwise.
Exceptions. The confidentiality obligations of this Section 4 shall not apply to Confidential Information that: (i) is or becomes known to the public other than by disclosure in violation of this Agreement or any similar confidentiality agreement; (ii) was known or available by lawful means to the Receiving Party by or from a third-party who rightfully possessed the information and did not violate any confidentiality obligations in its disclosure to the Receiving Party; (iii) is obtainable by a reasonably diligent businessperson from readily available and public sources of information; or (iv) is independently developed by the Receiving Party without access to such Confidential Information.
Return or Destruction of Confidential Information. Upon termination of this Agreement for any reason or upon the other Party’s written request, each Party shall promptly return or destroy, at the other Party’s direction, all material embodying the Confidential Information of the other Party in such Party’s possession, custody or control.
DTSA Notice. Notwithstanding the nondisclosure obligations set forth in this Agreement, pursuant to 18 U.S.C. § 1833(b), an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (i) in confidence to a federal, state or local government official, directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
Work Product; Ownership. Subject to Section 5(b), and subject to Client’s payment of the fees as set forth in Schedule A, Contractor hereby transfers and assigns, and agrees to transfer and assign, to Client all rights, title, interests, of any kind throughout the universe, in and to the results and proceeds of the Services that are completed by, or on behalf of, Contractor and delivered in final form to Client (collectively, the “Work Product”). Contractor hereby waives any so-called “moral rights,” which may now or hereafter be recognized, with respect to the Work Product. Contractor shall, at Client’s reasonable request, execute and deliver to Client, at the expense of Client, such documents or other instruments which Client may from time to time deem reasonably necessary to evidence, maintain, perfect, protect, enforce or defend Client’s right, title and interest in and to the Work Product and to carry out the intents and purposes of this Section 5(a), subject to Contractor’s reasonable opportunity to review and comment on such documents or other instruments.
Pre-Existing Works. If and only to the extent that Contractor desires, in Contractor’s sole discretion, to include Contractor’s pre-existing work or work originally created independent of the Services (“Contractor Pre-Existing Work”) in the Work Product, Contractor hereby grants to Client a non-exclusive, transferable, worldwide, perpetual license to use such Contractor Pre-Existing Work solely as embodied in such Work Product and only for the limited purposes in which such Work Product was intended to be used and was actually used during the Term (and no new or modified uses), and provided further that no portion of the Contractor Pre-Existing Work is unbundled from such Work Product or otherwise used separately from such Work Product. Except as expressly provided in this Agreement, nothing herein shall be construed to grant to Client any right, title or interest in, to or under Contractor Pre-Existing Work, whether by implication, estoppel or otherwise.
Representations, Warranties, and Covenants.
Mutual Representations, Warranties, and Covenants. Each Party hereby represents, warrants and covenants to the other Party that: (i) it has the full right, power, and authority to enter into this Agreement and perform its obligations hereunder; (ii) when executed and delivered, this Agreement shall constitute a legal, valid, and binding obligation, enforceable in accordance with its terms and conditions; (iii) it has obtained and shall maintain all rights, approvals and consents necessary to perform its obligations under this Agreement; and (iv) it has complied and shall comply with all applicable state, federal and local laws, rules and regulations (collectively, “Applicable Law”) in exercising its rights and performing its obligations under this Agreement.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES, WORK PRODUCT, AND ALL OTHER INFORMATION AND MATERIALS THAT MAY BE PROVIDED OR MADE AVAILABLE BY CONTRACTOR HEREUNDER ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND CONTRACTOR HEREBY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE OR ANY REPRESENTATION OR WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
Indemnification Obligations. To the greatest extent permitted under Applicable Law, Client agrees to indemnify, defend and hold harmless Contractor and its officers, managers, members, employees, agents, affiliates, attorneys, successors and permitted assigns from and against any and all third-party losses, expenses (including, but not limited to, reasonable attorneys’ fees), liabilities, damages, claims, suits, demands, judgments, and causes of action of any nature (individually “Claim” and collectively, “Claims”), whether such claims are alleged, threatened, settled or finally adjudicated, arising from or as a result of: (i) the performance of the Services; or (ii) any material breach by Client of this Agreement.
Exclusions. Notwithstanding anything herein to the contrary, Client shall not be obligated to indemnify, defend or hold harmless Contractor to the extent any such Claim is caused by: (i) the gross negligence, recklessness or intentional misconduct of Contractor; or (ii) a material breach by Contractor of its obligations under this Agreement to the extent such material breach is uncured and caused such Claim.
Indemnification Procedure. Contractor shall promptly notify Client of any Claim for which Contractor believes it is entitled to be indemnified, and Client shall immediately take control of the defense and investigation of such Claim, and shall employ counsel reasonably acceptable to Contractor to handle and defend the same, at Client’s sole cost and expense. Client shall not agree to any settlement without the prior written consent of Contractor. Contractor shall have the right, but not the obligation, to employ separate counsel and participate in the defense and investigation of any such Claim at its sole cost and expense; provided that, if Client does not conduct the defense and investigation of any Claim following Contractor’s request, Contractor’s employment of separate counsel and participation in the defense and investigation of such Claim shall be at Client’s sole cost and expense. Client shall promptly advance expenses to Contractor on a monthly basis as an integral part of its indemnification obligations hereunder. The indemnification obligations of this Section 7 shall survive the termination or expiration of this Agreement.
Limitation of Liability.
Limitation on Recoverable Damages. EXCEPT WITH RESPECT TO EITHER PARTY’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR WITH RESPECT TO CLIENT’S INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SUFFERED BY THE OTHER PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR SUCH DAMAGES ARE REASONABLY FORESEEABLE.
Damages Cap. CLIENT AGREES THAT IN NO EVENT SHALL THE AMOUNT OF ANY MONETARY DAMAGES TO WHICH IT IS ENTITLED AS A RESULT OF A BREACH OF THIS AGREEMENT BY CONTRACTOR EXCEED THE SUM OF AMOUNTS PAID BY CLIENT TO CONTRACTOR UNDER THIS AGREEMENT.
Independent Contractor Status. Contractor’s relationship with Client is that of an independent contractor, and nothing in this Agreement is intended to, or shall be construed to, create a partnership, agency, joint venture, employment or similar relationship between the Parties. Neither Party has authority (and shall not hold itself out as having authority) to bind the other Party and shall not make any agreements or representations on the other Party's behalf without the other Party's prior written consent.
Credit. Contractor shall have the right to use Client’s name and a brief description of the Services (including, without limitation, in the form of a case study) in its respective marketing materials and business development efforts.
Incorporation of Recitals. The recitals set forth above, by this reference, are hereby incorporated into and deemed a part of this Agreement.
Headings. The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
Severability. If a court of law holds any provision of this Agreement to be illegal, invalid or unenforceable: (i) such provision shall be deemed amended to achieve an economic effect that is as near as possible to that provided by the original provision; and (ii) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby.
No Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party. Subject to the foregoing, this Agreement shall inure to the benefit of, and shall be binding upon, the Parties and their respective successors and permitted assigns.
Waiver. The failure of either Party at any time to enforce performance by the other Party of any provision of this Agreement shall in no way affect such Party’s rights to enforce the same, nor shall the waiver by either Party of any breach of any provision hereof be deemed to be a waiver of any other breach of the same or any other provision hereof.
Force Majeure. Except for Client’s payment obligations hereunder, neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any provision of this Agreement if and to the extent such failure or delay is caused by or results from acts or circumstances beyond its reasonable control including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic (including, without limitation, COVID-19), lock-outs, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage (each, a “Force Majeure Event”). If a Party is affected by a Force Majeure Event, the affected Party shall: (i) provide prompt notice to the other Party, stating the period of time the Force Majeure Event is expected to continue; and (ii) use diligent efforts to end such failure or delay and minimize the effects of such Force Majeure Event.
Survival. Sections 2(d), 3(d), 4, 5, 6, 7, 8, 9, 10 and 11, as well as any other terms of this Agreement that expressly extend, or by their nature should extend, beyond termination or expiration of this Agreement, shall survive and continue in full force and effect after any termination or expiration of this Agreement.
Notices. Any notice or other communication required or permitted by this Agreement to be given to a Party shall be in writing and shall be deemed given: (i) if delivered personally or by commercial messenger or courier service, then when actually delivered; (ii) if sent by certified or registered mail, return receipt requested, then upon verification of receipt; or (iii) if sent via email or facsimile transmission, then upon acknowledgment of receipt, in each case addressed to the addresses set forth below on the signature page or to such other addresses as may be specified upon written notice to the other Party.
Governing Law; Dispute Resolution. This Agreement shall be governed in all respects by the laws of the State of Iowa, without regard to conflict of laws principles. Except with respect to the right to seek injunctive relief, any dispute arising out of or relating to this Agreement, or the breach thereof shall be submitted to final and binding arbitration administered by Judicial Arbitration and Mediation Services (“JAMS”) in accordance with JAMS Streamlined Arbitration Rules and Procedures then in effect. The arbitration shall take place in Des Moines, Iowa, or such other location as is mutually agreed by the Parties.
Counterparts; Electronic Copy. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
Entire Agreement; No Oral Amendments. This Agreement, together with Schedule A, constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements (whether written or oral) concerning such subject matter. This Agreement may not be modified or amended except in a writing signed by the Parties which specifically references this Agreement.
Founder and CEO of Assistagram LLC
1 E Erie Street Ste. 525 PMB157
Chicago, IL 60611