Terms of Service.
Last revised on: Sunday, February 18, 2024
1. Standard Terms. This Services Agreement (this “Agreement”), dated as of the Client’s agreement of the form on https://obgfund.com/client-sign-up (the “Effective Date”), is by and between Ouroboros Group, with offices located at 401 N ASHLEY DR, #173254 TAMPA, FL 33602-4301 (the “OBG”) and Client (as described in the Header) (together with OBG, the “Parties”, and each a “Party”). In consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, OBG and Client agree as follows:
2. Services. OBG shall provide to Client the services as a Chief Investment Officer consultant (the “CIO”) (the “Services”) set out in one or more statements of work to be issued by OBG and accepted by Client (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 OBG and the Client, appointed pursuant to this Agreement’s header.
3. OBG Obligations. OBG shall designate employees, contractors or sub-contractors that it deems sufficient to perform the Services set out in each Statement of Work, (“Provider Representatives”) and use its best efforts to adhere to the deadlines set forth in the Statement of Work. OBG or an assignee may assign all right in title in the performance of this Agreement, including the enforcement of the this Agreement, which will allow the assignee(s) all right(s), privilege(s), and obligation(s) under this Agreement.
4. Client Obligations. Client shall:
4.1. Respond promptly to any reasonable requests from OBG for instructions, information, or approvals required by OBG to provide the Services.
4.2. Cooperate with OBG in its performance of the Services and provide access to Client’s premises, data, software accounts, social media accounts, prior research, consumer insight information, shared cloud-based folders, web analytics, domain registrar login information, contractors, and equipment as applicable and required to enable OBG to provide the Services.
4.3. Take all steps necessary, including obtaining any required licenses or consents, to prevent Client-caused delays in OBG’s provision of the Services.
4.4. Be responsible for the accuracy, completeness and propriety of information concerning Client’s products and services which Client furnishes to OBG verbally or in writing in connection with the performance of this Agreement.
5. Fees and Expenses.
5.1. In consideration of the provision of the Services by OBG and the rights granted to Client under this Agreement, Client shall pay the fees set out in the applicable Statement of Work.
5.2. Any payments not received within seven (7) days from the due date thereof shall be subject to a late fee, which shall bear interest at the lesser of (a) the rate of 1.5% per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly.
5.3. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or regarding, OBG’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
6. Limited Warranty and Limitation of Liability.
6.1. OBG warrants that it shall perform the Services:
a) In accordance with the terms and subject to the conditions set out in the respective Statement of Work and this Agreement.
b) Using personnel of commercially reasonable skill, experience, and qualifications.
6.2. In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
7. Term, Termination, and Survival.
7.1. This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services under all Statements of Work unless sooner terminated pursuant to Section 7.2 or Section 7.3.
7.2. Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party:
a) 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 30 days after receipt of written notice of such breach.
b) Becomes insolvent or admits its inability to pay its debts generally as they become due.
7.3. Notwithstanding anything to the contrary in Section 7.2(a), OBG may terminate this Agreement before the expiration date of the Term on written notice if Client fails to pay any amount when due hereunder: (a) and such failure continues for thirty (30) days after Client’s receipt of written notice of nonpayment; or (b) more than three (3) times in any two (2) month period.
7.4. Any non-cancelable materials, services, etc., OBG has properly committed itself to purchase for Client’s account, (either specifically or as part of a plan such as modules, photography and/or external services) shall be paid for by Client, in accordance with the provisions of this Agreement. OBG agrees to use commercially reasonable efforts to minimize such liabilities upon written notification from Client. OBG shall provide written proof, upon request of Client, that any such materials and services, are non-cancelable.
7.5. If upon termination there exist any materials furnished by OBG or any services performed by OBG for which Client has not paid OBG in full, until such time as Client has paid OBG in full Client agrees not to use any such materials, in whole or in part, or the product of such services.
7.6. Upon termination of this agreement, provided that there is no outstanding indebtedness then owing by Client to OBG, OBG shall transfer, assign and make available to Client all property and materials in its possession or control belonging to Client. Client agrees to pay for all costs associated with the transfer of materials.
8. Limitation of Liability.
8.1. IN NO EVENT SHALL OBG, OR THE AFFILIATES, SUBSIDIARIES, OFFICERS, EMPLOYEES, OR AGENTS OF OBG, BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, 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 OBG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
8.2. IN NO EVENT SHALL OBG’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 OBG PURSUANT TO THE APPLICABLE STATEMENT OF WORK.
9. Intellectual Property.
9.1. Client grants OBG a non-exclusive perpetual license and the permission to utilize Client’s name, the Deliverables or the results of any of the Services provided for purposes of displaying them on OBG’s website and/or owned and operated social media accounts for purposes of providing a case study, information that demonstrates that Client is a client of OBG, and/or for award submission purposes which will not reasonably degrade Client’s intellectual property rights.
9.2. Upon clearance of Client’s final payment, intellectual property rights shall be automatically assigned as follows: (a) Client shall own the elements that OBG creates as a final Deliverable pursuant to the Statement of Work. OBG shall, if applicable and requested by Client, give Client source files and finished files and Client is urged to keep them somewhere safe as OBG is not required to keep a copy. Client owns all elements of text, images and data that Client provided, unless they are owned by a third party; (b) OBG shall own the unique combination of these elements that constitutes a complete design and shall license that to Client, exclusively and in perpetuity.
9.3. All inventions, ideas, creations, discoveries, computer programs, works of authorship, data, developments, technology, designs, innovations and improvements (whether or not patentable and whether or not copyrightable) which are made, conceived, reduced to practice, created, written, designed or developed by the OBG, solely or jointly with others or under its direction and whether during normal business hours or otherwise, (i) during the term of the agreement if related to the business of the Client or (ii) after the term of the agreement if resulting or directly derived from Client’s business, (collectively, “Inventions”) shall be the sole property of the Client. The OBG hereby assigns to the Client all Inventions and any and all related patents, copyrights, trademarks, trade names, and other industrial and intellectual property rights and applications therefor, in the United States and elsewhere and appoints any officer of the Client as duly authorized attorney to execute, file, prosecute and protect the same before any government agency, court or authority. However, this paragraph shall not apply to Inventions which do not relate to the business or research and development conducted or planned to be conducted by the Client at the time such Invention is created, made, conceived or reduced to practice and which are made and conceived by the OBG not during normal working hours, not on the Client’s premises and not using the Client’s tools, devices, equipment or proprietary information. OBG further acknowledges that each original work of authorship which is made by the OBG (solely or jointly with others) within the scope of the Agreement and which is protectable by copyright is a “work made for hire,” as that term is defined in the United States Copyright Act or in respect to Section 9.2.
10. Offering to Accredited Investors. It is understood that the sale of interests in the Parties is intended to be (a) exempt from the registration requirements of the Securities Act of 1933, as amended (the “1933 Act”) pursuant to Section 4(a)(2) thereof and Rule 506 thereunder pursuant to the exemption for offerings and sales made solely to “accredited investors” as defined in Rule 501 under the 1933 Act, or (b) otherwise exempt from the registration requirements of the 1933 Act pursuant to Section 4(a)(2) thereof or any other applicable exemptions. Neither the Parties will directly or indirectly, make any offer or sale of any interests in the Parties if as a result the offer and sale of interests in the Parties or the solicitation of commitment to the Parties contemplated hereby would fail to be entitled to the exemption from the registration requirements of the 1933 Act provided for in such Section 4(a)(2) and Rule 506 thereunder for offerings and sales made solely to accredited investors, or would otherwise fail to be entitled to the exemption from the registration requirements of the 1933 Act provided for in such Section 4(a)(2) or otherwise and if necessary without first allowing OBG to associate with a licensed broker dealer. Client acknowledges that OBG is not a licensed broker dealer and is soliciting securities only for its own account under the issuer exemption Rule 3a4-1.
11. Exclusivity of Sale of Interests. Client agrees to abstain from any sale of interest or assets in the Client to any other party except for OBG during the term of the Agreement or to any party introduced to OBG within the two (2) year following the termination of the Agreement. Violation of this section shall have a liquidated damages provision equal to five percent (5%) of the value of the sale plus reasonable attorney’s fees, costs, and expenses in collecting such amounts.
12. 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.
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 modify this Agreement to affect 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 and signed by 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. 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.
17. Relationship of the Parties. The relationship between the parties is that of independent contractors. The details of the method and manner for performance of the Services by OBG shall be under its own control, Client being interested only in the results thereof. OBG 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 Client the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. The Services must meet the Client’s final approval and shall be subject to the Client’s general right of inspection throughout the performance of the Services and to secure satisfactory final completion, such approvals not to be unreasonably withheld or delayed. 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.
18. 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.
19. 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 Delaware, United States of America (including its statutes of limitations) and 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 Delaware.
20. Choice of Forum. Except in respect to obligations under Section 21, 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 Delaware State Court. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in State of Delaware. 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. In any arbitration or court action at law or equity that is brought by one of the Parties to this Agreement to enforce or interpret the provisions of this Agreement, or for any claim or controversy, the prevailing Party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that Party may be entitled.
21. Arbitration. If any claim or controversy arises out of this Agreement, or related to this Agreement, or any claim or controversy of the Parties or agents of the Parties. The Parties shall first make a good faith attempt to resolve the matter through their management. In the event such good faith negotiation fails to settle any dispute within thirty (30) days from notice of such dispute, the claim or controversy shall be settled by binding arbitration by one arbitrator, conducted in accordance with the Rules of Arbitration of the International Chamber of Commerce. The decision of the arbitrator is final and shall be binding on both Parties. The site of arbitration be virtually conducted as much as possible, but physically shall be in Chicago, Illinois. The English language shall be used in the arbitration proceedings, and all documents, exhibits and other evidence shall also be in the English language. The decision of the arbitrator may be entered as a final judgment in any court of competent jurisdiction. The arbitrator shall not be empowered to award damages in excess of, and/or in addition to, actual damages, including punitive damages, and the arbitrator shall deliver a reasoned opinion in connection with his/her decision. Notwithstanding the foregoing, either Party may seek injunctive or other equitable relief in any court of competent jurisdiction. The Client will be responsible to paying all arbitration fees upfront and further acknowledges that this provision is reasonable and the Client has been able to review this provision or that the Client has chosen to accept this provision and waive Client’s review of this Agreement by counsel.
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. Language. This Agreement is being executed in English language. The Parties acknowledge and agree that communications shall be in English.
24. Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act in connection with the transaction contemplated under this Agreement, each Party and its employees and agents shall not directly or indirectly make any offer, payment, or promise to pay; authorize payment; nor offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing any act or decision of an official of any government (including a decision not to act) or inducing such a person to use his or her influence to affect any such governmental act or decision in order to assist such Party in obtaining, retaining or directing any such business.
25. Export. The Parties acknowledge that certain technical data to be provided hereunder and certain transactions hereunder may be subject to export controls under the Laws of the United States and other jurisdictions. No Party shall export or re-export any such items or any direct product thereof or undertake any transaction in violation of any such Laws.
26. Force Majeure. OBG shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of OBG 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, 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, provided that, if the event in question continues for a continuous period in excess of thirty (30) days, Client shall be entitled to give notice in writing to OBG to terminate this Agreement.
Exhibit A
1) Development and execution for Client by OBG of a business development and sale plan.
2) Client shall pay OBG seven hundred dollars ($700) per hour or 5% of the value of the sale, whichever is greater.