1. Scope of Services. Promoter shall perform the services (the “Services”) for the Company as
described in a Statement of Work (“SOW”) executed pursuant to this Agreement. Each SOW
executed pursuant to this Agreement shall be attached hereto as part of Exhibit A. From time to
time, the parties may execute additional SOWs, each of which shall be numbered chronologically, as
Exhibit A-1, A-2, etc., and appended to this Agreement upon their execution. Such SOWs shall
identify the Services to be performed, provide specifications, instructions, and compensation to be
paid, but shall not modify any other term or condition of this Agreement, and without the need for
reference shall incorporate all terms and conditions of this Agreement. In the event there is a conflict
between the SOW and the Agreement, the terms and conditions of the Agreement prevail. This is not
an exclusive arrangement. Further, Company makes no guarantee that it will seek any minimum
amount of Services under this Agreement.
2. Payment. In consideration for the provision of the Services by the Promoter, the Promoter shall be
paid at the rate indicated in a SOW. The fees described in a SOW are Company’s sole compensation
obligation to Promoter for rendering Services to the Company.
3. Term. This Agreement shall commence on the Effective Date and shall continue in effect for a
period of one (1) year, and shall be automatically extended for successive one (1) year terms unless it
is terminated earlier in accordance with Section 4 hereof. In the event that the term of a SOW
extends beyond the termination of this Agreement, or the parties execute additional SOWs after the
termination of this Agreement without executing a successor agreement or an amendment extending
this Agreement’s term, this Agreement shall be automatically extended for the duration of the term of
such a SOW.
4. Early Termination. Notwithstanding anything to the contrary contained in this Agreement, the
Company may terminate this Agreement immediately for any reason or for no reason and, in such
event, the Promoter shall immediately stop performing all Services (unless otherwise directed by the
Company in writing), and the Company shall have no further obligation or liability to the Promoter
other than to make any payments of fees and expense reimbursements required pursuant to Section 2
hereof on account of Services performed prior to such termination, provided, however, in the event
the Company terminates this Agreement due to a violation of Section 6.7(i)-(iv) hereof, the Company
shall have no obligation to make any payments beyond the date such violation occurred or began.
5. No Publicity. As indicated in Section 5 above, Promoter will maintain the existence of this
Agreement with Company as Confidential Information. Promoter shall derive no rights in the names
or marks of Company, nor shall it use the names or marks of the Company, other than as expressly
contemplated in a SOW, and then only to the extent necessary to perform the Services. Promoter
shall not include work done for Company in case studies, white papers, or similar materials, even
when such materials do not identify Company by name.
6. Ownership rights.
6.1. Rights to Deliverables. Company shall own all intellectual property rights in the
Deliverables. “Deliverables” means any work product (including but not limited to any intellectual
property rights) developed by Promoter in connection with its performance of the Services under this
Agreement. “Intellectual Property Right(s)” shall mean any and all right, title and interest
(including all patent, patent registration, copyright, trademark, trade name, service mark, service
name, trade secret, or other proprietary right arising or enforceable under any United States federal
or state law, rule or regulation, non-United States law, rule or regulation or international treaty) in
any technology, system, invention, medium, or content, including print, pictures, photographs, video,
marks, logos, designs, drawings, artistic and graphical works, music, speech, computer software and
documentation, any other works of authorship and any form, method or manner of expression or
communication.
6.2. Assignment of Deliverables. The Promoter agrees that all Deliverables which the Promoter
or any of its employees or subcontractors makes, conceives, reduces to practice or develops (in
whole or in part, either alone or jointly with others) as part of the provision of the Services shall be
the sole property of the Company. The Promoter agrees to assign (and/or to cause its employees or
subcontractors to assign) and hereby does assign to the Company all title, patents, patent rights,
copyrights, trade secret rights, sui generis, database rights, and other intellectual or industrial
property rights of any sort anywhere in the world (collectively, “Rights”) to all such Deliverables.
The Company shall be the sole owner of all Rights in connection such Deliverables. Without
limiting the generality of the foregoing, the Promoter acknowledges and agrees that all such
Deliverables shall be deemed to be “works made for hire” within the meaning of the U.S. Copyright
Act, and the copyright and all other Rights to such Deliverables shall be owned solely, completely
and exclusively by the Company.
6.3. Assistance by Promoter. The Promoter agrees to perform, during and after the term of this
Agreement, all acts deemed necessary or desirable by the Company to permit and assist it in
evidencing, perfecting, obtaining, maintaining, defending and enforcing Rights and/or the
Promoter’s (or any of its employees’ or subcontractors’) assignment with respect to such
Deliverables in any and all countries. Such acts may include, but are not limited to, execution of
documents and assistance or cooperation in legal proceedings. The Promoter hereby irrevocably
designates and appoints the Company and its duly authorized officers and agents as the Promoter’s
agents and attorneys-in-fact to act for and on behalf and instead of the Promoter, to execute and file
any documents and to do all other lawfully permitted acts to further the above purposes with the
same legal force and effect as if executed by the Promoter.
6.4. Moral Rights. Any assignment of copyright hereunder includes all rights of paternity,
integrity, disclosure and withdrawal and any other rights that may be known as or referred to as
“moral rights” (collectively, “Moral Rights”). To the extent such Moral Rights cannot be assigned
under applicable law and to the extent the following is allowed by the laws in the various countries
where Moral Rights exist, the Promoter hereby waives such Moral Rights and consents to any action
of the Company that would violate such Moral Rights in the absence of such consent. The Promoter
will confirm any such waivers and consents from time to time as requested by the Company.
6.5. Company Information and Materials. All information and materials, including computer
software, provided to Promoter by Company in connection with the Services, including
modifications, changes and derivatives thereto or otherwise made available to the Promoter by the
Company (the “Company Materials”) are and shall remain the property of Company or its licensors,
whom shall retain all intellectual property rights therein. Promoter obtains no right, title, or interest
therein, except that Promoter may use the Company Materials for the sole, exclusive and limited
purpose of performing the Services in accordance with this Agreement. Promoter shall comply with
the terms of any license or other agreement applicable to such Company Material of which it is given
notice by Company. Promoter shall not encumber the Company Materials in any way, and promptly
shall return to Company any and all Company Materials in Promoter’s possession or control upon
Company’ request and in any event upon termination or expiration of this Agreement.
6.6. Promoter Information and Materials. To the extent that Promoter brings to bear in its
performance of the Services the Promoter’s proprietary software, methodologies, techniques and
tools which are assets of Promoter prior to the execution of a SOW or which are developed by
Promoter independent from its performance under this Agreement (collectively, “Promoter
Properties”), such Promoter Properties shall remain the sole and exclusive property of Promoter. To
the extent that Promoter Properties are embedded in, or required to be used in connection with, any
Deliverable, Promoter hereby grants to Company a nonexclusive, irrevocable, world-wide, perpetual,
fully paid up and royalty-free license for Company, Company affiliates and their third party service
providers to use, copy, modify, maintain, support, and create derivative works of such Promoter
Properties solely in connection with Company’ internal business processes and requirements.
6.7. Know-How. Nothing contained in this Agreement shall restrict either party from the use of
any ideas, concepts, know-how, methodologies, processes, technologies, algorithms or techniques
relating to the Services which such party retains as mental impressions, provided that in doing so
such party does not infringe the Intellectual Property Rights of the other party or third parties who
have licensed or provided intellectual property to the other party. Notwithstanding the foregoing, the
Promoter shall be prohibited from (i) creating any website, video or other deliverable, other than
those governed by this Agreement, that copies, recreates, simulates and/or incorporates, in any way,
the design, layout, formatting, or framing of any of the Company’s videos, websites, templates,
copyright protected text, branding, or logos, (ii) creating any website, video or other deliverable that
attempts to sell products similar to those offered by Company or otherwise may be used to compete
with Company and/or the services Company provides, (iii) seeking to purchase or register any
keywords, search terms or other identifiers related to the trademarks of the Company or the trade or
service marks or names of Company’s primary competitors, including misspellings or variations
thereof for use in any search engine, portal, sponsored advertising service or other search or referral
service unless otherwise agreed to by the Company; or (iv) seeking to purchase or register any
domains or other identifiers that include variations on the trade or service marks or names of the
Company intended to approximate misspellings or typographical mistakes of same or which
otherwise would constitute typo or domain squatting, including variations thereof for use in any
search engine, portal, sponsored advertising service or other search or referral service unless
otherwise agreed to by the Company.
7. Warranties of Promoter.
7.1. The Promoter’s performance under this Agreement shall be conducted with due diligence
and in full compliance with high professional standards for Promoter’s industry. The Promoter shall
comply with all applicable laws, rules and regulations in the course of performing the Services.
8. Indemnity by Promoter.
8.1. The Promoter represents and warrants that any and all Deliverables that the Promoter will
create under this Agreement will not violate the proprietary rights of any third party. Promoter
agrees to indemnify, defend and hold harmless Company and Company affiliates and their respective
officers, directors, employees, agents, successors, and assigns, from any losses related to, arising
from, or in connection with any third party claim related to, arising from, or in connection with the
actual or alleged infringement of the Services or Deliverables of any third party proprietary rights.
9. Remedies.
9.1. If the Promoter violates any provision of this Agreement, the Company shall, in addition to
any damages to which it is entitled, be entitled to seek immediate injunctive relief against the
Promoter prohibiting further actions inconsistent with the Promoter’s obligations under this
Agreement.
9.2. To the extent a Party is required to seek enforcement of this Agreement or otherwise defend
against an unsuccessful claim of breach, the unsuccessful Party shall be liable for all attorney’s fees
and costs incurred by the successful party to enforce the provisions of this Agreement.
9.3. All rights and remedies provided in this Agreement are cumulative and not exclusive, and
the exercise by either Party of any right or remedy does not preclude the exercise of any other rights
or remedies that may now or subsequently be available at law, in equity, by statute, in any other
agreement between the Parties, or otherwise. Despite the previous sentence, the Parties intend that
the Promoter’s exclusive remedy for Company’s payment breach shall be its right to damages equal
to its earned but unpaid fees.
10. General.
10.1. Notices. All notices, requests and other communications hereunder shall be in writing and
will be deemed to have been given on the date of receipt if (i) delivered personally against written
receipt, or (ii) by facsimile transmission against facsimile confirmation, or (iii) mailed return receipt
requested, or (iv) delivered by nationally recognized overnight courier, to the parties at the following
addresses or facsimile numbers:
If to Company to:
With copy to:
Ascent Law
Attn: Gregory B. Lyle
8833 S. Redwood Road, Ste. C
West Jordan, UT 84088
If to the Promoter to:
10.2. Entire Agreement; Modification. This Agreement constitutes the entire agreement among
the parties with respect to the Services and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof. This Agreement may be
Company Name: Oakie Enterprises, LLC
Address: 9648 PO Box 171421
City, State, Zip: Salt Lake City, UT 84117
Attn:
Email:
Company/Individual Name:
Address:
City, State, Zip:
Attn:
Facsimile No.:
Email:
amended or modified only by an instrument in writing duly executed by the parties to this
Agreement.
10.3. Waiver. No waiver by any party of any term or condition of this Agreement, in any one or
more instances, shall be deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion. All remedies, either under this Agreement or by
law or otherwise afforded, will be cumulative and not alternative.
10.4. No Assignment; Binding Effect. Neither this Agreement nor any right, interest or obligation
hereunder may be assigned (by operation of law or otherwise) by any party without the prior written
consent of the other party and any attempt to do so will be void; provided, however, that the
Company may, upon notice to the Promoter but without being obligated to obtain the Promoter’s
consent, assign this Agreement or any of its rights, interests or obligations hereunder to an affiliate of
the Company. Subject to the preceding sentence, this Agreement is binding upon, inures to the
benefit of and is enforceable by the parties hereto and their respective successors and assigns.
10.5. Independent Contractor. Nothing herein contained shall be deemed to create an agency, joint
venture, partnership or franchise relationship between the parties. The Promoter acknowledges that
the Promoter is an independent contractor to Company, that it is not authorized to act on behalf of the
Company, and that none of its employees or subcontractors is an employee of the Company or is
entitled to any Company employment rights or benefits. The Promoter further acknowledges and
agrees that the Promoter, on behalf of itself and its employees and subcontractors, waives any and all
rights the Promoter has, or may have, against the Company under the Employee Retirement Income
Security Act of 1974. The Promoter shall be solely responsible for any and all tax obligations of the
Promoter arising from or relating to this Agreement, including but not limited to, all city, state and
federal income taxes, social security withholding tax and other self employment tax incurred by the
Promoter, and shall indemnify and hold harmless the Company against any liabilities, costs and
expenses suffered or incurred by the Company as a result of any determination by the Internal
Revenue Service or any other taxing authority that any employee or subcontractor of the Promoter is
an employee of the Company.
10.6. Survival. Rights and obligations under this Agreement which by their nature should survive,
including, but not limited to any warranties, indemnities, limitation of liabilities and all payment
obligations, will remain in effect after termination or expiration hereof.
10.7. Severability. Any term or provision of this Agreement that is invalid, illegal or
unenforceable in any situation in any jurisdiction shall not affect the validity, legality or
enforceability of the offending term or provision in any other situation or in any other jurisdiction. If
such invalidity, illegality or unenforceability is caused by length of time or size of area, or both, the
otherwise invalid provision shall be, without further action by the parties, automatically amended to
such reduced period or area as would cure such invalidity, illegality or unenforceability; provided,
however, that such amendment shall apply only with respect to the operation of such provision in the
particular jurisdiction in which such determinations is made.
10.8. Governing Law. This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of Utah, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Utah or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Utah.
10.9. Interpretation. The parties hereto agree that this Agreement is the product of negotiation
between sophisticated parties and individuals, all of whom were represented by, or had an
opportunity to be represented by legal counsel, and each of whom had an opportunity to participate
in, the drafting of each provision hereof. Accordingly, ambiguities in this Agreement, if any, shall
not be construed strictly or in favor of or against any party hereto but rather shall be given a fair and
reasonable construction. If there is any ambiguity between the SOW and this Agreement, this
Agreement shall govern.
10.10. Counterparts; Facsimile Execution. This Agreement may be executed and delivered (i) in
any number of counterparts, each of which will be deemed an original, but all of which together will
constitute one and the same instrument, and/or (ii) by facsimile, in which case the instruments so
executed and delivered shall be binding and effective for all purposes.