This SERVICES AGREEMENT (this “Agreement”) is entered into and shall become effective on date of signing (the “Effective Date”), by and between Hahn Agency, LLC, d/b/a #provokebetter, a Maryland limited liability company (“Company”) and (“Client/Customer”).
WHEREAS, Company is in the business of providing certain business support services; and
WHEREAS, Client/Customer desires to engage Company to provide certain services to Client/Customer in accordance with the Proposal of Company and which is attached hereto as Exhibit A.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the Parties hereby agree to the terms and conditions set forth herein.
RELATIONSHIP OF THE PARTIES
Engagement to Provide Services. Client/Customer hereby engages Company to provide certain services as more specifically set forth in Exhibit A, the terms of which are hereby incorporated by reference and made a part hereof in their entirety (“Services”) and Company hereby agrees to provide such Services subject to all terms and conditions of this Agreement.
1.2 No Partnership or Agency. Nothing in this Agreement is intended to, or shall operate to, create a partnership, joint venture, or agency relationship between the parties, or to authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). Company and Client/Customer agree and acknowledge that Company will provide the Services as an independent contractor and not as a representative or agent of Client/Customer.
Services. Company shall provide the Services to Client/Customer subject to the terms and conditions of this Agreement.
Payment for. Client/Customer shall pay Company for the Services in accordance with Exhibit A.
TERM AND TERMINATION
Term. Unless sooner terminated in accordance with this Article 5, the term of this Agreement shall be from the Effective Date until the end of the period stated in Exhibit A.
Termination by Either Party Without Cause. Either party may terminate this Agreement for any reason upon providing at least thirty (30) days prior written notice to the other party.
Termination by Either Party For Cause. Either party may terminate this Agreement in the event the other party (the “Defaulting Party”) materially defaults in the performance of any duty or obligation imposed upon it by this Agreement and such default continues for a period of ten (10) days after written notice thereof has been given to the Defaulting Party by the non-Defaulting Party. If such default remains uncured upon the expiration of such notice period, the non-Defaulting Party may terminate this Agreement upon further written notice to the Defaulting Party.
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
The Company represents and warrants to Client/Customer as follows:
Organization and Qualification. Company is and during the term of this Agreement shall be duly organized, validly existing and in good standing under the laws of its state of formation.
Authority and Binding Effect. Company has the power and authority to execute, deliver and perform this Agreement, which has been authorized by all necessary corporate/company action on the part of Company. This Agreement has been executed and delivered by Company and is a valid and binding obligation of Company, enforceable against it in accordance with its terms, except as enforcement hereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditors’ rights generally and general legal principles governing the availability of equitable remedies.
No Conflicts, Defaults or Violations. Neither the execution nor delivery of this Agreement, nor the performance by Company of its obligations hereunder, will breach, conflict with or constitute a default under Company’s governing or organizational documents, or any material contract, lease, note or other agreement to which Company is a party or violate any applicable law.
Client/Customer represents and warrants to Company as follows:
Organization and Qualification. Client/Customer is and during the term of this Agreement shall be duly organized, validly existing and in good standing under the laws of its state of formation.
Authority and Binding Effect. Client/Customer has the power and authority to execute, deliver and perform this Agreement, which has been authorized by all necessary corporate/company action on the part of Client/Customer. This Agreement has been executed and delivered by Client/Customer and is a valid and binding obligation of Client/Customer, enforceable against it in accordance with its terms, except as enforcement hereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditors’ rights generally and general legal principles governing the availability of equitable remedies.
No Conflicts, Defaults or Violations. Neither the execution nor delivery of this Agreement, nor the performance by Client/Customer of its obligations hereunder, will breach, conflict with or constitute a default under Client/Customer’s governing or organizational documents, or any material contract, lease, note or other agreement to which Client/Customer is a party or violate any applicable law.
Confidentiality. For purposes of this Agreement, “Confidential Information” means information that is disclosed by a party or its affiliates (a “Disclosing Party”) to the other party (a “Receiving Party”) that is marked “Confidential,” “Proprietary” or similarly or that, by its nature or the circumstances surrounding its disclosure, ought in good faith be considered confidential, including without limitation the Disclosing Party’s non-public technical, business, financial, customer and other information and management know how, techniques, methodologies, systems and programs. Receiving Party will not redistribute, market, publish, disclose or divulge to any other person or entity, or use or modify for use, directly or indirectly in any way for any person or entity, except as otherwise provided herein, the Confidential Information and shall protect such information from unauthorized use, access or disclosure in the same manner as a Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than a reasonable degree of care. A Receiving Party may disclose Confidential Information to its respective employees, agents, and contractors who have a need to know such Confidential Information for the performance of their duties and who are bound by contractual or other legal obligations of confidentiality. Notwithstanding the foregoing, in no event shall information held or obtained by a Receiving Party be deemed to be Confidential Information if that information: (i) was already lawfully known to the Receiving Party at the time of disclosure to the Receiving Party; (ii) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no fault of the Receiving Party has become, generally available to the public; (iv) is independently developed by the Receiving Party without access to, or use of, a Disclosing Party’s Confidential Information; (v) is approved in writing by a party entitled to disclose Confidential Information; (vi) is necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (vii) is required to comply with s, governmental or regulatory regulations, or subpoenas or court orders from a court of competent jurisdiction, or to prosecute or defend itself in any litigation or legal dispute arising out of or related to this Agreement.
Work for Hire. Except for any rights expressly granted under this Agreement, it is the intention of the parties that all rights, including, without limitation, copyright in any reports, surveys, marketing, promotional, and collateral materials prepared by Company in connection with its services performed for the Client/Customer (the “Work Product”) shall automatically vest in the Company. The parties expressly acknowledge that the Work Product was specially ordered or commissioned by the Company, and further agree that it shall be considered a “work made for hire” within the meaning of the copyright laws of the United States (Section 101 of the Copyright Act), and that the Company is entitled as author to the copyright and all of the rights to the Work Product, throughout the world, including, but not limited to, the right to make such changes in the Work Product and such uses of the Work Product, as the Company may determine in its sole and absolute discretion.
Intellectual Property. Except for rights expressly granted under this Agreement, each party will retain exclusive interest in and ownership of its Intellectual Property developed prior to this Agreement or developed outside the scope of this Agreement. For purposes of this Agreement “Intellectual Property” means all of the following and similar intangible property and related proprietary rights, interests and protections, however arising, pursuant to the laws of any jurisdiction throughout the world, including such property that is owned by a party and that in which a party holds exclusive or non-exclusive rights or interests granted by license from other persons:
trademarks, service marks, trade names, brand names, logos, trade dress and other proprietary indicia of goods and services, whether registered, unregistered or arising by Law, and all registrations and applications for registration of such trademarks, including intent-to-use applications, and all issuances, extensions and renewals of such registrations and applications;
internet domain names, whether or not trademarks, registered in any generic top level domain by any authorized private registrar or governmental entity;
original works of authorship in any medium of expression, whether or not published, all copyrights (whether registered, unregistered or arising by law), all registrations and applications for registration of such copyrights, and all issuances, extensions and renewals of such registrations and applications;
confidential information, formulas, designs, devices, technology, know-how, research and development, inventions, methods, processes, compositions and other trade secrets, whether or not patentable; and
patented and patentable designs and inventions, all design, plant and utility patents, letters patent, utility models, pending patent applications and provisional applications and all issuances, divisions, continuations, continuations-in-part, reissues, extensions, reexaminations and renewals of such patents and applications.
Notices. All notices required or permitted by this Agreement shall be in writing and shall be deemed given if sent, postage prepaid, certified mail, return receipt requested, to the addresses set forth below:
To Company: Hahn Agency, LLC
Attn: Whitney Hahn, President, 5100 Buckeystown Pike 250, Frederick, MD 21704
Or to such other address as either party shall indicate to the other in accordance with the provisions of this Section.
Binding Effect. This Agreement shall be binding on the parties hereto and their successors and assigns.
Assignment. Neither party may assign, delegate, or in any way dispose of all or any of its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall be in the sole discretion of the party whose consent is sought. DM. Any attempted assignment in contravention of this provision shall be null and void and of no effect.
Counterparts. This Agreement may be executed in one or more counterparts, each of which need not contain the signatures of all parties hereto, and all of such counterparts taken together shall constitute one agreement. The parties agree that signature pages may be transmitted by facsimile or e-mail, and any such signature, including an electronic signature, shall have the same legal effect as an original.
Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Maryland, without regard to conflicts of law rules.
Arbitration. Any controversy or claim arising out of or relating to this Agreement or the breach thereof that cannot be resolved by mutual agreement shall be settled exclusively by final and binding arbitration in accordance with the then prevailing rules of the American Arbitration Association, and judgment upon the award rendered may be entered in any court having jurisdiction thereof. The arbitration proceedings shall be held in the State of Maryland at a mutually agreed upon location.
Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all prior oral and written understandings between the Parties. This Agreement may be changed, modified or amended from time to time only in a writing signed by the parties.
Waiver. No waiver of any provision of this Agreement or any breach hereunder shall be deemed a waiver of any other provision or subsequent breach, nor shall any such waiver constitute a continuing waiver. Delay or failure of any party to insist on strict performance or observance of any provision of this Agreement or to exercise any rights or remedies hereunder shall not be deemed a waiver. Any waiver shall be effective only if in writing and signed by the waiving party.
Severability. If any part of this Agreement, or the application thereof to any person or circumstance, is for any reason held invalid or unenforceable, it shall be deemed severable and the validity of the remainder of this Agreement or the application of such provision to other persons or circumstances shall not be affected thereby.
No Third-Party Beneficiaries. This Agreement is made and entered into solely for the benefit and protection of the parties hereto and their successors and permitted assigns, and no other person or entity shall have any cause of action hereunder.
Force Majeure. In the event either party shall be prevented from performing its obligations hereunder due to governmental or administrative prohibitions, labor difficulties, acts of God, acts of public enemy, riot, pandemic, accidents, or other causes beyond the control of the other party, be thereafter released from its obligations so long as such causes shall continue.
Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING ANY CLAIM FOR LOST PROFITS OR REVENUES) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Non-Solicitation. Each party agrees that it will not solicit the other’s employees or contractors (either directly or through agents), without the prior written permission of the other party, which permission shall be in the sole discretion of the party whose permission is sought, during the term of this Agreement and for a one (1) year period following its termination for any reason.
Indemnification. Each party shall indemnify, hold harmless and defend the other party and its officers, directors, shareholders, members, managers, agents, successors, heirs and assigns (each an “Indemnified Party”) from and against any liability, loss, claim, lawsuit, damage, injury, cost, expense (including reasonable attorneys’ fees) or other detriment suffered by the Indemnified Party resulting directly or indirectly from any of the following: (a) any material breach or failure to perform any of its responsibilities or obligations under this Agreement; (b) acts , omissions, ordinary or gross negligence, or intentional acts of the indemnifying party, its employee, agent, or representative; or (c) any inaccuracy in, or breach of, any of the representations, warranties or covenants made by it under this Agreement.