PROFESSIONAL SERVICES AGREEMENT TERMS OF SERVICE

For contracts signed effective July 1, 2022 – February 28, 2023. If you signed a contract effective March 1, 2023, or later, later versions of the PROFESSIONAL SERVICES AGREEMENT TERMS OF SERVICE can be found here.

These Professional Services Agreement Terms of Service, along with the applicable Statement of Work (“SOW”), as well as any appliable Addendum, collectively constitute the Agreement “Agreement” between Growth Operators Advisory Services, LLC, a Delaware limited liability company (“GOAS”) and The Customer identified on the SOW (“Customer”). Customer desires to engage GOAS to perform certain professional services and GOAS desires to perform the services on the terms and conditions set forth in the Agreement including these Professional Services Terms of Service (or “Terms of Service’).

1. SERVICES.

1.1 Statement of Work. GOAS agrees to perform the services as described in the Statement of Work (“Services”) for Customer during the term of the Agreement. “Statement of Work” or “SOW” means a mutually agreed upon Statement of Work executed by both parties. The SOW will define the Services to be performed during each phase of the project, any Deliverables (as defined in Section 4.2) and the fees, costs and expenses (“Services Fees”) to be paid. If the parties execute multiple SOWs, each SOW, combined with the Terms of Service and an Addendum (if any) constitutes a separate and individual Agreement between Customer and GOAS. GOAS may revise or add personnel assigned to perform Services under any SOW as reasonably determined by GOAS to meet the needs of the SOW, with such revisions effective upon written notice (email is sufficient) to Customer.

1.2 Customer Assistance. Customer shall provide GOAS with such resources, information and assistance as GOAS may reasonably request in connection with the performance of the Services. Customer acknowledges and agrees that GOAS’ ability to successfully perform the Services in a timely manner is contingent upon its receipt from Customer of the information, resources and assistance reasonably requested. GOAS shall have no liability for (a) deficiencies in the Services resulting from the acts or omissions of Customer, its agents or employees or (b) performance of the Services in accordance with Customer’s instructions.

1.3 Acceptance. Without limiting any applicable warranties set forth in the Agreement, the Services will be deemed accepted upon performance and any Deliverables delivered pursuant to the SOW will be deemed accepted upon delivery to Customer.

1.4 Non-Exclusive Engagement. Customer acknowledges and agrees that, so long as GOAS does not breach any of its obligations in Section 6 (Confidentiality), nothing set forth in this Agreement impairs GOAS’ right to provide to any third parties products and services similar to the services to be provided to Customer on such terms and conditions as GOAS may determine in its sole discretion.

2. RELATIONSHIP OF THE PARTIES

2.1 Independent Contractor Relationship. The parties acknowledge that GOAS is an independent contractor of Customer, and GOAS’ employees or subcontractors are not employees of Customer. Nothing in this Agreement will be construed as creating a partnership, joint venture, or agency relationship between the parties, or as authorizing either party to act as an agent for the other or to enter contracts on behalf of the other. Nothing in this Agreement is intended to confer any rights or remedies on any other person or entity, which is not a party to this Agreement.

2.2 Hiring of GOAS Employees or Subcontractors. Customer acknowledges that GOAS has expended significant time and resources to obtain a base of employees and subcontractors and endeavors to match each Customer’s needs with an appropriate employee or subcontractor to fit the Customer’s needs. Therefore, during the Term of this Agreement and for a period of one (1) year after its termination, Customer agrees not to hire or cause to be hired, as either an employee of or an independent consultant to Customer or a related company, any GOAS employee or subcontractor who was placed with Customer pursuant to this Agreement. A breach of this provision, without GOAS’ approval, will entitle GOAS to receive immediate payment from Customer in the amount of One Hundred and Fifty Thousand Dollars ($150,000.00) as liquidated damages and not as a penalty, as a reasonable reflection of GOAS’s damages. For purposes of this provision, the terms “employee” and “subcontractor” mean any individual or entity that GOAS places with the Customer pursuant to this Agreement.

3. FEES AND PAYMENT

3.1 Fees and Payment. In consideration of the rights granted and services provided by GOAS hereunder, Customer shall pay GOAS all Services Fees as set forth in this Section 3.1. Unless expressly specified otherwise in the SOW, all Services shall be performed at GOAS’ then-current time and materials rates, as provided from GOAS by email from time to time to Customer, with updated rates effective upon email delivery. Further, GOAS may add or revise resources and personnel performing under any SOW, as determined by GOAS to meet the requirements of the SOW, and such updated resources / personnel, along with corresponding fees for such resources / personnel, are effective as of the date of such notice (email is sufficient). Nothing in this Agreement shall be deemed to imply an agreement for the completion of Services for a fixed price. GOAS will earn and be paid by Customer for actual time worked and expenses incurred in connection with the performance of Services. All fees generated from Services performed by GOAS shall be considered earned as work is performed. All fees due hereunder are non-refundable and are not contingent on any additional services or products to be provided. GOAS may increase its rates for Services hereunder effective immediately upon written notice to Customer.

3.2 Costs and Expenses. Customer shall reimburse GOAS for reasonable preapproved travel, lodging and meal expenses, and such other costs and expenses as GOAS may incur in connection with the performance of Services.

3.3 Payment Terms.
Except as otherwise set forth herein or in the SOW, GOAS will invoice Customer on a semi-monthly basis for amounts due hereunder, and Customer shall pay all amounts invoiced within fifteen (15) days after the invoice date. All payments must be made in U.S. dollars. Outstanding balances owing to GOAS under any provision of the Agreement or any SOW, including Section 2.2, shall accrue interest at a rate equal to the lesser of one and one half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus GOAS’ reasonable costs of collection including reasonable attorney fees. All fees due hereunder are exclusive of, and Customer shall be responsible for, all sales, use and other taxes and similar charges applicable to the transactions contemplated by this Agreement, except for taxes based upon GOAS’ net income. GOAS may, without being in breach hereunder, suspend Services if Customer fails to pay on time, in addition to any and all other remedies to which GOAS may be entitled

4. OWNERSHIP; ASSIGNMENT; LICENSE.

4.1 Customer Property. Customer owns all intellectual property rights in all information and material of Customer provided to GOAS or made available by Customer under this Agreement (“Customer Property”).

4.2 Assignment of Deliverables. The parties understand and agree that all Deliverables (defined below) shall be owned by Customer and, subject to Customer’s payment of all applicable fees related to the SOW and such Deliverables, as applicable, GOAS hereby assigns to Customer all right, title, and interest worldwide in and to such Deliverables, including all intellectual property rights therein, but excluding GOAS Property included in such Deliverable or necessary for Customer to fully utilize such Deliverable, which is licensed to Customer by GOAS in Section 4.4. “Deliverable” means any item delivered to Customer by GOAS under this Agreement, including Work Product included in such Deliverable or necessary for Customer to fully utilize such Deliverable. “Work Product” means (a) all original works of authorship that GOAS creates for Customer in the course of performing the Services, (b) ideas, know-how, processes, techniques and inventions that GOAS makes, develops, conceives or reduces to practice, whether alone or jointly with others, in the course of performing the Services, (c) all enhancements, modifications, improvements and derivative works of each and any of the foregoing and (d) all copyrights, trademarks, service marks, trade secrets, patents, patent applications and other proprietary rights related to each and any of the foregoing.

4.3 GOAS Property. Notwithstanding Section 4.2, as between the parties, GOAS retains ownership of all (a) intellectual property, works of authorship, ideas, know-how, processes, techniques and inventions that GOAS uses in connection with the provision of the Services that GOAS makes, develops, or reduces to practice, whether alone or jointly with others or otherwise obtained by GOAS prior to, or independently of, this Agreement, (b) Work Product that has applicability to GOAS’ provision of services to its customers generally, (c) all enhancements, modifications, improvements and derivative works of each and any of the foregoing and, and (d) intellectual and proprietary rights related to each and any of the foregoing (collectively, the “GOAS Property”).

4.4 License of GOAS Property. Subject to Customer’s payment of all applicable fees related to the SOW and the Deliverables, as applicable, GOAS hereby grants to Customer a non-exclusive, perpetual, irrevocable, worldwide, fully-paid right and license, under all of GOAS’ intellectual property rights, to all GOAS Property included in any Deliverable or necessary for Customer to fully utilize any Deliverable, to use, reproduce, distribute and create derivative works of such GOAS Property solely for Customer’s internal business purposes, and the right to grant sublicenses to third parties to such rights solely for Customer’s internal business purposes.

4.5 Use of Information. Customer acknowledges and agrees that if Customer provides GOAS with any information, feedback or suggestions for any new features, functionality or performance for the Services (“Services Information”), GOAS may use such Services Information for any purpose without obligation to Customer and all such Services Information will be free from any confidentiality or other restrictions that might otherwise be imposed upon GOAS pursuant to the terms of this Agreement. Customer acknowledges that the incorporation of such new features, functionality, or performance will be the sole and exclusive property of GOAS.

4.6 Reservation of Rights. Any rights not expressly granted by one party to the other party under this Agreement are reserved by such party, its licensors and suppliers.

4.7 General Skills and Knowledge. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement prohibits GOAS from utilizing any skills or knowledge of a general nature gained or created by GOAS during the course of providing the Services, including, information publicly known or available or that could reasonably be acquired in similar work performed for another customer of GOAS, subject to Section 6.

5. WARRANTIES; DISCLAIMER

5.1 Limited Warranty. GOAS warrants to Customer that the Services will be performed in a workmanlike and professional manner in accordance professional standards in the industry and the requirements of this Agreement. GOAS shall, as its sole obligation and Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section 5.1, re-perform the Services which gave rise to the breach or, if GOAS cannot re-perform such defective Services, Customer may terminate this Agreement pursuant to Section 7.2 for GOAS’ breach; provided that Customer shall notify GOAS in writing of the breach within thirty (30) days following performance of the defective Services, specifying the breach in reasonable detail.

5.2 Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 5.1 ABOVE, THE SERVICES AND ANY GOAS PROPERTY ARE PROVIDED “AS IS,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. GOAS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE OR COURSE OF DEALING. GOAS DOES NOT WARRANT THAT THE SERVICES OR THE DELIVERABLES WILL MEET CUSTOMER’S REQUIREMENTS.

6. CONFIDENTIALITY

6.1 Definition. “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) relating to or disclosed in the course of the performance of this Agreement. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party, because of legends or other markings, the circumstances of disclosure or the nature of the information itself.

6.2 Protection. Recipient will not use any Confidential Information of the Discloser for any purpose not expressly permitted by this Agreement and will disclose Confidential Information only to the employees or individual independent contractors of Recipient who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

6.3 Exceptions.
Recipient’s obligations under Section 6.2 above with respect to any Confidential Information of Discloser will terminate if and when Recipient can demonstrate that such information: (a) was already lawfully known to Recipient at the time of disclosure by Discloser; (b) is disclosed to Recipient by a third party who, to the reasonable knowledge of Recipient, had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access to or use of the Confidential Information. In addition, Recipient may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that Recipient notifies Discloser of such required disclosure in writing prior to making such disclosure and cooperates with Discloser, at Discloser’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.

6.4 Ownership and Return of Confidential Information. All Confidential Information furnished to GOAS by Customer under this Agreement is the sole and exclusive property of Customer or Customer’s suppliers or customers. Within five (5) days after any request by Customer, but in any event upon the termination of this Agreement, GOAS shall destroy or deliver to Customer, at Customer’s option, all materials in GOAS’ possession or control that contain or disclose any Confidential Information. GOAS will provide Customer a written certification of GOAS’ compliance with its obligations under this Section.

7. TERM AND TERMINATION

7.1 Term. The term of this Agreement shall commence on the Effective Date and shall continue until terminated as set forth herein or in the SOW (the “Term”).

7.2 Termination. Either party may terminate this Agreement at any time upon at least thirty (30) days’ prior written notice. Either party may terminate the Agreement by written notice in the event the other party is in material breach of any obligation under this Agreement, which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) days after receipt of notice of such default. Notwithstanding the foregoing, GOAS may also terminate this Agreement immediately upon written notice in the event (a) Customer fails to pay any amounts due hereunder within fifteen (15) days after receiving written notice from GOAS that payment is past due, or (b) Customer breaches any provision in Section 2.2, 4.4 or 6. The termination or expiration of a single Agreement between the parties shall not cause the automatic termination of any other Agreement between the parties.

7.3 Effect of Termination. Upon the expiration or termination of this Agreement, (a) each party shall return the other’s Confidential Information in its possession or control, and (b) all amounts owed to GOAS under this Agreement which accrued before such termination or expiration will be immediately due and payable. Sections 1.3, 1.4, 2, 3, 4, 5, 6, 7.3, 8, and 9 will survive the expiration or termination of this Agreement for any reason.

8. LIMITATIONS OF LIABILITY

8.1 IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA, LOST PROFITS AND COSTS OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE DELIVERABLES OR ANY SERVICES PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.2 IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE GOAS PROPERTY OR ANY SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID OR PAYABLE TO GOAS UNDER THE APPLICABLE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS IN SECTION 8 SHALL NOT APPLY WHERE PROHIBITED BY LAW.

9. GENERAL

9.1 Assignment. Neither party may assign or transfer, by operation of law or otherwise, this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent, such consent shall not be unreasonably withheld or delayed; except that either party may assign this Agreement by operation of law or otherwise to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns and shall not confer any rights or remedies upon any person or entity not a party hereto.

9.2 Subcontractors and GOAS Employees. Customer understands that GOAS may delegate the performance of the Statement of Work to qualified subcontractors. In such event, GOAS will require subcontractors to enter into nondisclosure or other agreements consistent with the terms of this Agreement. GOAS will remain responsible for the performance of Statement of Work delegated to its subcontractors.

9.3 Force Majeure. Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of any cause which is beyond the reasonable control of such party.

9.4 Notices. All notices, consents, and approvals under this Agreement must be delivered in writing by electronic mail, courier, facsimile, or certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address for each party first set forth on the signature page and will be effective upon receipt. Additionally, electronic mail and facsimile may not be used for providing legal notices but may be used to distribute routine communications and to obtain approvals and consents.

9.5 Required Insurance. If requested by Growth Operators, Customer shall provide proof that the Customer, at its own cost and expense, procure and keep in full force and effect during the Term at least the following insurance coverages:
(a)Commercial General/Public Liability insurance with a minimum limit of One Million Dollars (U.S.$1,000,000) per occurrence and shall include GOAS, its parent companies, employees, officers, directors and affiliates as an additional insured;
(b) Director & Officer (“D&O) insurance with a minimum limit of One Million Dollars (U.S.$1,000,000) per occurrence and in aggregate.
(c) Cyber Liability insurance with a minimum limit of One Million Dollars (U.S.$1,000,000) per claim and in aggregate. Such policy must include network risk/cyber coverage including coverage for unauthorized access, failure of security, breach of privacy periods, as well as notification costs and regulatory defense.
(d) All coverage must be insured through licensed insurers with a minimum A.M. Best financial rating of “A-“, size “IX”.
(e) If requested in writing by GOAS (email is sufficient), Customer shall furnish to GOAS a certificate of insurance signed by an authorized representative of
Customer’s insurance company(s), giving evidence of such insurance in a form acceptable to GOAS.

9.6 Governing Law.
This Agreement will be governed by and interpreted in accordance with the laws of the State of Delaware without reference to its choice of law rules

9.7 Remedies. Except as otherwise expressly provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. Each party acknowledges and agrees that any actual or threatened breach of Sections 2.2, 4 or 6 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive from the non-prevailing party.

9.8 Observance of Company Rules. At all times while on Customer’s premises, GOAS will observe Customer’s rules and regulations with respect to conduct, health, safety and protection of persons and property.

9.9 Compliance with Laws. Each party shall comply with those laws and regulations in jurisdictions within the United States that are specifically applicable to the applicable party notwithstanding this Agreement.

9.10 Waivers. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Any waiver must be in writing and signed by the party entitled to the benefit of the right being waived. Unless otherwise stated in the waiver, any waiver applies only to the specific circumstance for which the waiver is given and not to any subsequent circumstance involving the same or any other right.

9.11 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect.

9.12 Entire Agreement; Amendment; Public Company Addendum. This Agreement, including the SOW and any exhibits or attachments thereto, constitute the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. In the event that Customer is a publicly traded company, Customer shall also sign GOAS’s then-current Public Company Engagement Addendum to the Professional Services Agreement, which is also then incorporated into and a part of this “Agreement.” This Agreement sets forth the general terms and conditions applicable to all Services provided by GOAS to Customer under the specific terms and conditions set forth in the applicable, individual, SOW. No terms and conditions proposed by either party shall be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. However, under this Agreement and any SOW, GOAS may, immediately upon notice, revise the specific personnel assigned to perform Services, revise rates under a SOW, or make non-material revisions to project scope in a SOW; this sentence specifically supersedes and controls over any SOW. To the extent of any conflict between the provisions of these Terms and Conditions and the provisions of any SOW, the provisions of the SOW shall govern. This Agreement will not be modified except by a subsequently dated written amendment signed on behalf of GOAS and Customer by their duly authorized representatives.

END OF TERMS OF SERVICE.