EXPLANATORY NOTE
This Amendment No. 2, or this Amendment, to the Regulation A Offering Statement on Form 1-A filed by VidAngel, Inc. on August 12, 2016 (the “Original Filing”) is being filed solely to file Exhibit 8.1 and to amend Exhibits 2.1, 3.1, 6.1 and 6.2 which were previously filed with Amendment No. 1 to the Original Filing. Accordingly, this Amendment consists only of Part I , the explanatory note, the signature page to the Form 1-A, the exhibit index, Exhibit 8.1 and the amended Exhibits 2.1, 3.1, 6.1 and 6.2. The Preliminary Offering Circular is unchanged and has therefore been omitted.
PART III – EXHIBITS
EXHIBIT INDEX
The following exhibits are filed as part of this Preliminary Offering Circular on Form 1-A:
Exhibit Number |
Description | ||
2.1 | Certificate of Incorporation of VidAngel, Inc., as amended. | ||
2.2 | Bylaws of VidAngel, Inc. | ||
3.1 | Investor Rights and Voting Agreement between VidAngel, Inc. and certain investors | ||
3.2* | Stockholders Agreement between VidAngel, Inc. and the Class B Common Stockholders | ||
4.1 | Form of Subscription Agreement | ||
6.1 | Employment Agreement between VidAngel, Inc. and David Quinto | ||
6.2 | Promotion and Marketing Services Agreement between VidAngel, Inc. and Harmon Brothers LLC | ||
8.1 | Form of Escrow Services Agreement between Issuer Direct Corp. and VidAngel, Inc. | ||
10.1 | Powers of Attorney (included on the signature page to this Offering Circular) | ||
11.1 | Consent of Tanner LLC | ||
11.2 | Consent of Kaplan Voekler Cunningham and Frank PLC (included in Exhibit 12.1) | ||
11.3 | Consent of NRG Research Group | ||
12.1 | Opinion of Kaplan Voekler Cunningham and Frank, PLC as to legality of the securities being registered | ||
*To be filed by amendment
III-1
SIGNATURES
Pursuant to the requirements of Regulation A, the issuer certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form 1-A and has duly caused this Offering Circular to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Provo, State of Utah on September 22 , 2016.
VIDANGEL, INC. | |||
By: | /s/ Neal S. Harmon | ||
Neal S. Harmon | |||
Chief Executive Officer and Director |
POWER OF ATTORNEY
We, the undersigned directors and officers of VidAngel, Inc. (the “Company”) hereby severally constitute and appoint Neal S. Harmon and Patrick Reilly, with full power of substitution, our true and lawful attorneys-in-fact and agents, to do any and all things in our names in the capacities indicated below which said Neal S. Harmon and Patrick Reilly may deem necessary or advisable to enable the Company to comply with the Securities Act of 1933, as amended, and any rules regulations and requirements of the Securities and Exchange Commission, in connection with the Regulation A Offering Circular on Form 1-A of the Company, including specifically but not limited to, power and authority to sign for us in our names in the capacities indicated below, the Regulation A offering circular and any and all amendments thereto; and we hereby ratify and confirm all that said Neal S. Harmon and Patrick Reilly shall lawfully do or cause to be done by virtue thereof.
This offering circular has been signed by the following persons in the capacities and on the dates indicated.
Name | Title | Date | ||
/s/ Neal S. Harmon | Chief Executive | September 22 , 2016 | ||
Neal S. Harmon | Officer and Director (principal executive officer) |
|||
/s/ Patrick Reilly | Director of Finance | September 22 , 2016 | ||
Patrick Reilly | (principal financial and accounting officer) | |||
/s/ * | Director | |||
Dalton Wright | September 22 , 2016 |
/s/ * | Director | September 22 , 2016 | ||
Paul Ahlstrom |
* /s/ Neal S. Harmon | Attorney-In-Fact | September 22 , 2016 | ||
Neal S. Harmon |
III-2
/s/ Neal S. Harmon | |||
Neal Harmon, Incorporator |
VIDANGEL, INC. | |||
By:
|
/s/ Neal Harmon | ||
Neal Harmon, Chief Executive Officer |
1.
|
Article III of the Certificate of Incorporation is amended to read in its entirety as follows:
|
VIDANGEL, INC. | |||
By:
|
/s/ Neal Harmon | ||
Neal Harmon, Chief Executive Officer |
VIDANGEL INC.
INVESTOR RIGHTS AND VOTING AGREEMENT
February 27, 2014
|
Name, Address and E-Mail
|
Number of Shares
|
ALTA VENTURES MEXICO FUND I, L.P.
[ADDRESS]
[ADDRESS]
Attn: Paul Ahlstrom
|
2,069,536
|
KICKSTART SEED FUND II, L.P.
2795 E. Cottonwood Pkwy, #350
Salt Lake City, UT 84121
Attn: Gavin Christensen
|
689,845
|
OSBORN COMPANIES, LC
4290 North Vintage Circle
Provo, UT 84604
Attn: Warren Osborn
|
551,876
|
TOTAL:
|
3,311,257
|
Name, Address and E-Mail | Number of Shares of Common Stock Held |
Harmon Ventures, LLC 251 North University Avenue Provo, UT 84601 Attn: Neal Harmon
|
8,938,520 |
Daniel Harmon [Address] [Address]
|
301,980 |
FirstStep Capital, L.L.C 136 E. South Temple, Ste 1050 Salt lake City, UT 84111
|
397,350 |
Jordan Harmon [Address] [Address]
|
189,960 |
Benton Crane [Address] [Address]
|
105,960 |
Alan Melby [Address] [Address] [Address]
|
66,230 |
TOTAL: | 10,000,000 |
As
a condition of my employment with VidAngel, Inc., a Delaware corporation with its headquarters in the
state of Utah, its subsidiaries, affiliates, predecessors, successors or assigns (together the “Company”),
and in consideration of my further employment with the Company and my receipt of the compensation now
and hereafter paid to me by the Company, and for other consideration, the receipt and sufficiency of which
are hereby acknowledged, I agree to the following:
1.
Confidential Information.
a.
Company Information. I agree at all times during the term of my employment and thereafter, to hold in strictest confidence,
and not to use, except for the exclusive benefit of the Company, or to disclose to any person, firm or entity without written
authorization of an authorized officer (other than myself), any Confidential Information of the Company. I understand that “Confidential
Information” means any non-public information that relates to the actual or anticipated business or research and
development of the Company, proprietary information, technical data, formulae, trade secrets or know-how, including, but not limited
to, research, business plans, marketing plans, product plans, products, services, suppliers, customer lists and customers (including,
but not limited to, customers of the Company on whom I call or with whom I become acquainted during the term of my employment),
markets, software, source code, developments, development environment, specifications, flow charts, inventions, operations, procedures,
methods, processes, compilations of data, technology, designs, drawings, engineering, devices, hardware configuration information,
marketing, finances or other business information. I further understand that Confidential Information does not include any of
the foregoing items that has become publicly known and made generally available through no wrongful act of mine or of others who
were under confidentiality obligations as to the item or items involved or improvements or new versions thereof.
b.
Acknowledgments. I acknowledge that during my employment with the Company, I will have access to Confidential Information,
all of which shall be made accessible to me only in strict confidence; that unauthorized disclosure of Confidential Information
will damage the Company’s business; that Confidential Information would be susceptible to immediate competitive application
by a competitor of the Company’s; that the Company’s business is substantially dependent on access to and the continuing
secrecy of Confidential Information; that Confidential Information is novel, unique to the Company and known only to me, the Company
and certain key
|
employees
and contractors of the Company; that the Company shall at all times retain ownership
and control of all Confidential Information; and that the restrictions contained in this
agreement are reasonable and necessary for the protection of the Company’s legitimate
business interests. Pursuant to the Defend Trade Secrets Act of 2016, I acknowledge that
I shall not have criminal or civil liability under any Federal or State trade secret
law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal,
State, or local government official, either directly or indirectly, or to an attorney;
and (ii) solely for the purpose of reporting or investigating a suspected violation of
law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding,
if such filing is made under seal. In addition, if I file a lawsuit for retaliation by
the Company for reporting a suspected violation of law, I may disclose the trade secret
to my attorney and may use the trade secret information in the court proceeding, if I
(X) file any document containing the trade secret under seal; and (Y) do not disclose
the trade secret, except pursuant to court order.
c.
Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose
any proprietary information or trade secrets of any former or concurrent employer or other person or entity and that I will
not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer,
person or entity unless consented to in writing by such employer, person or entity. I will use in the performance of my duties
only information which is generally known and used by persons with training and experience comparable to my own, which is
common knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or developed by
the Company.
d.
Third Party Information. I recognize that the Company
has received and in the future will receive from third parties their confidential or proprietary information subject to a duty
on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes.
I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person,
firm or corporation or to use it except as necessary in carrying out my work for the Company consistent with the Company’s
agreement with such third party.
2.
Inventions.
a.
Inventions Retained and Licensed. I have attached hereto,
as Exhibit A, a list describing all inventions, original works of authorship, developments,
|
improvements,
and trade secrets which were made by me prior to my employment with the Company (collectively
referred to as “Prior Inventions”), which belong to me, which
relate to the Company’s proposed business, products or research and development,
and which are not assigned to the Company hereunder; or, if no such list is attached,
I represent that there are no such Prior Inventions. If, in the course of my employment
with the Company, I incorporate into a Company product, process or service a Prior Invention
owned by me or in which I have an interest, I hereby grant to the Company a nonexclusive,
royalty-free, fully-paid up, irrevocable, perpetual, worldwide license to make, have
made, modify, use and sell such Prior Invention as part of or in connection with such
product, process or service, and to practice any method related thereto. Notwithstanding
the foregoing, I agree that I will not incorporate, or permit to be incorporated, Prior
Inventions or inventions of third parties in any Inventions without the Company’s
prior written consent
b.
Assignment of Inventions. I agree that I will promptly make full written disclosure to the Company, will hold in trust
for the sole right and benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest
in and to any and all inventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas,
trademarks or trade secrets, whether or not patentable or registrable under copyright or similar laws, which I have solely or
jointly conceived or developed or reduced to practice, or caused to be conceived or developed or reduced to practice and which
I may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice,
during the period of time I have been and am in the employ of the Company (collectively referred to as “Inventions”),
except as provided in Section 3(f) below. I further acknowledge that all original works of authorship which are made by
me (solely or jointly with others) within the scope of and during the period of my employment with the Company and which are protectable
by copyright are “works made for hire,” as that term is defined in the United States Copyright Act. I understand and
agree that the decision whether or not to commercialize or market any Invention developed by me solely or jointly with others
is within the Company’s sole discretion and for the Company’s sole benefit and that no royalty will be due to me as
a result of the Company’s efforts to commercialize or market any such Invention.
c.
Inventions Assigned to the United States. I agree to
assign to the United States government all my right, title, and interest in and to any and all Inventions whenever such full title
is required to be in the United States by a contract between the Company and the United States or any of its agencies.
d.
Maintenance of Records. I agree to keep and maintain
adequate and current written records of all Inventions made by me (solely or jointly with others) during the term of my employment
with the Company. The records
|
will
be in the form of notes, sketches, drawings, and any other format that may be specified by the Company.
The records will be available to and remain the sole property of the Company at all times.
e.
Patent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company’s expense, in
every proper way to secure the Company’s rights in the Inventions and any copyrights, patents, mask work rights or other
intellectual property rights relating thereto in any and all countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other
instruments which the Company shall deem necessary in order to apply for and obtain such rights and in order to assign and convey
to the Company, its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such Inventions,
and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. I further agree that my
obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after
the termination of this Agreement. If the Company is unable because of my mental or physical incapacity or for any other reason
to secure my signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations
covering Inventions or original works of authorship assigned to the Company as above, then I hereby irrevocably designate and
appoint the Company and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf
and stead to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and
issuance of letters patent or copyright registrations thereon with the same legal force and effect as if executed by me.
f.
Exception to Assignments. I understand that the provisions of this Agreement requiring assignment of Inventions to the
Company do not apply to any invention that qualifies fully under the provisions of Utah Code Title 34, Chapter 39, Section 3 (attached
hereto as Exhibit B). I will advise the Company promptly in writing of any inventions that I believe meet the criteria
in Utah Code Title 34, Chapter 39, Section 3 and are not otherwise disclosed on Exhibit A.
g.
No Self-Help or Unauthorized Code. I represent and warrant to the Company, that I will not knowingly infect, incorporate
into or combine with any computer system, computer program, software product, database or computer storage media of the company
any Self-Help Code or Unauthorized Code (as defined below). “Self-Help Code” means any back door, time
bomb, drop dead device, or other illegitimate or harmful routing, code, algorithm or hardware component designed or used: (i)
to disable, erase, alter or harm any computer system, computer program, database, data hardware or communications system, automatically
with the passage of time, or under the control of, or through some affirmative action by, any
|
person,
or (ii) to access any computer system, computer program, database, data, hardware or
communications system. “Self-Help Code” does not include any routine, code,
algorithm or hardware component which is known to Company management and which is intended
by Company management to be incorporated into or combined with any computer system, computer
program, software product, database or computer storage media of the Company. For example,
computer programs used for legitimate and authorized access to computer systems (e.g.,
remote assess via modem) are not Self-Help Code. “Unauthorized Code”
means any virus, Trojan horse, worm, or other illegitimate or harmful routine, code,
algorithm or hard component designed or used to disable, erase, alter, or otherwise harm
any computer system, program, database, data, hardware or communications system, or to
consume, use, allocate or disrupt any computer resources.
3.
Conflicting Employment. I agree that, during the term
of my employment with the Company, I will not engage in any other employment, occupation, consulting or other business activity
directly related to the business in which the Company is now involved or becomes involved during the term of my employment, nor
will I engage in any other activities that conflict with my obligations to the Company.
4.
Returning Company Documents. I agree that, at the time
of leaving the employ of the Company, I will deliver to the Company (and will not keep in my possession, recreate or deliver to
anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, formulae, specifications, drawings,
blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items developed
by me pursuant to my employment with the Company or otherwise belonging to the Company, its successors or assigns, including,
without limitation, those records maintained pursuant to paragraph 3(d). I understand and agree that compliance with this paragraph
may require that data be removed from my personal computer equipment. Consequently, upon reasonable prior notice, I agree to permit
the qualified personnel of the Company or its contractors access to such computer equipment for that purpose.
5.
Notification of New Employer. In the event that I leave
the employ of the Company, I agree to notify the Company of my new employer and hereby grant consent to notification by the Company
to my new employer about my rights and obligations under this Agreement.
6.
Solicitation of Employees. I agree that for a period
of 12 months immediately following the termination of my relationship with the Company for any reason, whether with or without
good cause or for any or no cause, at the option either of the Company or myself, with or
|
without
notice, I shall not either directly or indirectly solicit, induce, recruit or encourage any of the
Company’s employees to leave their employment, or take away such employees, or attempt to solicit,
induce, recruit, encourage or take away such employees, either for myself or for any other person
or entity.
7.
Conflict of Interest Guidelines. I agree to diligently
adhere to the Conflict of Interest Guidelines attached hereto as Exhibit C.
8.
Covenant Not to Compete.
a.
Covenant. I agree that during the course of my employment and for 12 months following the termination of my relationship
with the Company (the “Noncompetition Period”) for any reason, whether with or without good cause or
for any or no cause, at the option either of the Company or myself, with or without notice, I will not, without the prior written
consent of the Company, (i) serve as a partner, employee, consultant, officer, director, manager, agent, associate, investor,
or (ii) directly or indirectly, own, purchase, organize or take preparatory steps for the organization of, or (iii) build, design,
finance, acquire, lease, operate, manage, invest in, work or consult for or otherwise affiliate myself with any business, (a)
in competition with or otherwise similar to the Company’s business, (b) any other line of business in which the Company
was engaged at any time during my employment with the Company; or (c) any other line of business into which the Company, during
my employment with the Company, formed an intention to enter during the Noncompetition Period, and which an officer of the Company
has disclosed to me in writing within ten (10) days following the termination of my employment with the Company. This covenant
shall not prohibit me from owning less than two percent of the securities of any competitor of the Company, if such securities
are publicly traded on a nationally recognized stock exchange or over-the-counter market. The foregoing covenant shall cover my
activities in every part of the Territory in which I may conduct business during the term of such covenant as set forth above.
“Territory” shall mean (i) all counties in the state of the Company’s headquarters, (ii) all other
states of the United States of America and (iii) all other countries of the world; provided that, with respect to clause
(iii), the Company derives at least three percent (3%) of its gross revenues from any such geographic area prior to the date of
the termination of my relationship with the Company. Further, I agree that for a period of 12 months immediately following the
termination of my relationship with the Company for any reason, whether with or without cause, at the option either of the Company
or myself, with or without notice, I will not, without the prior written consent of the Company, (x) solicit business or sales,
for the same or similar products or services as provided by the Company, from any customer, client or account of the Company with
which I have had any contact during the term of employment (“Customers”) or (y) attempt
|
to
convert Customers to other sellers or providers for the same or similar products or services
as provided by the Company.
b.
Acknowledgement. I acknowledge that my fulfillment of the obligations contained in this Agreement, including, but not limited
to, my obligation neither to disclose nor to use the Company’s Confidential Information other than for the Company’s
exclusive benefit and my obligation not to compete contained in subsection (a) above, is necessary to protect the Company’s
Confidential Information and, consequently, to preserve the, trade secrets, value and goodwill of the Company. I further acknowledge
the time, geographic and scope limitations of my obligations under subsection (a) above are reasonable, especially in light of
the Company’s desire to protect its Confidential Information and trade secrets, and that I will not be precluded from gainful
employment if I am obligated not to compete with the Company during the period and within the Territory as described above.
c.
Severability. The covenants contained in subsection
(a) above shall be construed as a series of separate covenants, one for each city, county and state of any geographic area in
the Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the covenant
contained in subsection (a) above. If, in any judicial proceeding, a court refuses to enforce any of such separate covenants (or
any part thereof), then such unenforceable covenant (or such part) shall be eliminated from this Agreement to the extent necessary
to permit the remaining separate covenants (or portions thereof) to be enforced. In the event the provisions of subsection (a)
are deemed to exceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be reformed
to the maximum time, geographic or scope limitations, as the case may be, then permitted by such law.
9.
Representations. I agree to execute any proper oath
or verify any proper document required to carry out the terms of this Agreement. I represent that my performance of all the terms
of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by me in confidence or
in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter into, any oral or written
agreement in conflict herewith.
10.
General Provisions.
a.
Governing Law; Consent to Personal Jurisdiction. This
Agreement will be governed by the laws of the state of the Company’s headquarters without regard for conflicts of laws principles.
I hereby expressly consent to the exclusive personal jurisdiction of the state and federal courts located in the state of the
Company’s headquarters for any lawsuit filed there against me by the Company arising from or relating to this Agreement.
|
b.
Entire Agreement. This Agreement sets forth the entire agreement and understanding between
the Company and me relating to the subject matter herein and supersedes all prior discussions between
us. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement,
will be effective unless in writing signed by the party to be charged. Any subsequent change or changes
in my duties, salary or compensation will not affect the validity or scope of this Agreement.
c.
Other Agreements. In the event of any direct conflict between any term of this Agreement and any term of any other agreement
executed by me, the terms of this Agreement shall control. If I signed or sign any other agreement(s) relating to or arising from
my employment with the company, all provisions of such agreement(s) that do not directly conflict with a provision of this Agreement
shall not be affected, modified or superseded by this Agreement, but rather shall remain fully enforceable according to their
terms.
d.
Severability. If one or more of the provisions in this Agreement are deemed void by law, including, but not limited to,
the covenant not to compete in Section 9,
then the remaining provisions will continue in full force and effect.
e.
Survival. My obligations under this Agreement shall survive the termination of my employment with the Company and shall
thereafter be enforceable whether or not such termination is claimed or found to be wrongful or to constitute or result in a breach
of any contract or of any other duty owed or claimed to be owed to me by the Company or any Company employee, agent or contractor.
f.
Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives
and will be for the benefit of the Company, its successors, and its assigns.
g.
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be enforceable, and all
of which together shall constitute one agreement.
I
acknowledge and agree to each of the following:
I
am executing this Agreement voluntarily and without any duress or undue influence any other party;
I
have carefully read this Agreement. I have asked any questions needed for me to understand the terms, consequences and binding
effect of this Agreement and fully understand them; and
I
sought the advice of an attorney of my choice if I elected to before signing this Agreement.
Executed
on the date first set forth above.
|
Title
|
Date
|
Identifying
Number or Brief Description
|
None
|
||
PROMOTION & MARKETING
SERVICES AGREEMENT
|
RECITALS.
Client and Marketer deem the following factors to be important to their decision to enter
into the Agreement.
(i)
Marketer is in the business of providing internet-based and multi-media promotion and marketing
services, including the design and implementation of promotional and web-based advertising campaigns;
(ii)
Client desires to retain Marketer to provide certain promotional and advertising services in
accordance with Order Form (the "Campaign").
1.DEFINITIONS.
Capitalized terms have the meanings set forth or referred to in this Section.
1.1
Deliverables" means all documents, work product and other materials that are delivered to Client
hereunder by or on behalf of Marketer in connection with the Campaign or in the course of performing
the Services outlined in the Order Form(s).
1.2
“Services” means all work outlined in the Order Form(s) to be performed by Marketer,
for Client.
1.3
"Intellectual Property" means any and all trade secrets, Trademarks, domain names, original
works of authorship and related copyrights, and any other intangible rights protected
or protectable under federal or applicable state laws.
1.4
"Trademarks" means all rights in and to U.S. and foreign trademarks, service marks, trade
dress, trade names, brand names, logos, corporate names and domain names, and other similar
designations of source, sponsorship, association whether registered or unregistered.
2.
MARKETER SERVICES AND RESPONSIBILITIES.
2.1
Marketer Services. Marketer shall use commercially reasonable efforts to provide the
Services to Client in accordance with the terms of this Agreement in a professional and
diligent manner consistent with industry standards and good business practices.
2.2
The Promotional and Marketing Campaign. Marketer will develop and launch one or more marketing campaigns as set forth in one or
more Promotion & Marketing Order Forms (“Order Forms”) that reference and incorporate the terms of the Agreement.
2.3
Timeliness of Performance. Marketer will use commercially reasonable efforts to meet
all deadlines agreed to by the Parties in this Agreement or in the Order Form(s). Any
delay caused by to or materially contributed to Client shall extend the affected deadline
by the length of any caused or contributed to by Client.
2.4
Marketer Campaign Personnel. Marketer shall (i) appoint an employee to serve as the Primary
Contact as set forth in the Order Form(s) who will have the authority to act on behalf
of Marketer in connection with the Agreement and Services. The Primary Contact shall
supervise, direct, and be responsible for all employees and independent contractors (the
"Marketer Personnel") assigned to perform the Services, each of whom shall be suitably
skilled, experienced and qualified. Upon reasonable objection by Client articulating
the basis for such request, as determined in consultation between Client and Marketer,
Marketer shall promptly replace the objectionable Marketer Personnel.
(b) Marketer
shall use best commercially reasonable efforts to maintain the same Marketer Contract Manager throughout the Term of the Agreement.
|
(c) Marketer shall be responsible
for the payment of all compensation owed to the Marketer Personnel, including applicable wages, taxes, benefits, and insurance.
(d)
Marketer may use third party providers and subcontractors as deemed necessary and customary in the business provided that
Marketer shall remain fully responsible for the performance of each third parties.
(e) Marketer shall require each
third party provider to be bound in writing by the confidentiality and intellectual property assignment or license provisions
of this Agreement.
2.5
Prior to their public release, Marketer shall submit to Client for consultation and approval the deliverables described in
the Order Form(s) and any other materials that the Marketer proposes be displayed, published, reproduced, distributed or
otherwise made publicly available as part of the Campaign. Within 3 Business Days after receiving a submission and request
for approval from Marketer, Client shall provide Marketer with written notice approving or disapproving the materials submitted.
If the Client does not deliver written approval within such 3 business days, the submission will be deemed disapproved. If
Client gives timely written notice of disapproval of any materials, until Marketer revises the materials to the satisfaction
of Client, the materials shall not be publicly released. Client may withhold approval in its sole and absolute discretion.
Content released solely for the purpose of testing and optimization is not considered a public release and thus does not
require written approval from Client.
2.6 Marketer Free to Provide
Services to Other Clients. Marketer retains the right to perform the same or similar type of services for other clients during
the Term of this Agreement, provided that, Marketer shall exercise commercially reasonable care to ensure that it will not
interfere with the performance or timeliness of performing the Services.
2.7
Meetings With Client. On Client's reasonable request, Marketer’s Primary Contact and appropriate Marketer Personnel
shall attend, in-person or telephonic meetings with Client’s Primary Contact to discuss the Services or the Campaign.
If Client requires meeting at their own facilities, Client will cover all traveling costs incurred by Marketer Personnel.
3.
CLIENT OBLIGATIONS AND RESPONSIBILITIES.
3.1
Client shall use commercially reasonable efforts to:
(a)
Appoint and maintain throughout the Term a Client employee to serve as the Primary Contact, designed in the applicable Order Form,
who will have the authority to act on behalf of Client with respect to the Agreement and Services.
(b)
Provide copies of or access to such Client Materials and product samples as Marketer
may reasonably request in order to carry out and perform the Services in a timely, complete,
and accurate manner. Client and its licensors are, and shall remain, the sole and exclusive
owner of all right, title and interest in and to all Client Materials, including all
Intellectual Property therein. Marketer shall have a limited right to Client Materials
during the Term of this Agreement to the extent reasonably necessary to provide the Services
to Client.
(c)
Respond promptly to Marketer requests to provide direction, information, approvals, authorizations
or decisions that are reasonably necessary for Marketer to perform the Services in accordance
with the requirements of this Agreement.
|
(d)
The Client agrees to use Marketer as the sole provider of advertising to drive traffic to Deliverables for the life of the Deliverables.
4.
INTELLECTUAL PROPERTY RIGHTS; OWNERSHIP.
4.1
License to Certain Client Intellectual Property.
(a)
Subject the terms and conditions of this Agreement, Client grants Marketer and Marketer’s
third party providers a limited, non-exclusive, royalty-free, non-transferable and non-sub
licensable, worldwide license during the Term to use, in connection with and for the
purpose of Marketer’s showcasing, promoting, and marketing of its own services
as an advertiser and marketer to clients and prospective clients of Marketer, the following
intellectual property: (i) Client's Trademarks, including without limitation Client’s
trade names, trade dress, and logos; ; (ii) Client's domain names, website addresses,
websites and URL's ; and (iii) any Trademarks created by the Marketer on Client's behalf
as part of the Services (“Client Intellectual Property”). This license for
Marketer to use the Client Intellectual Property for showcasing, promoting and marketing
its services to clients and prospective clients shall be perpetual and irrevocable.
(b)
Client grants no other right or license to any Client Intellectual Property to Marketer
by implication, estoppel or otherwise. Any use by Marketer or any representative of Marketer
of any of Client's Trademarks and all goodwill associated therewith shall inure to the
benefit of Client.
4.2
Ownership of and License to Deliverables.
(a)
Client shall be the sole and exclusive owner of all right, title and interest in and
to the Deliverables, including all Intellectual Property therein. Marketer agrees, and
will cause Marketer Personnel to agree, that with respect to any Deliverables that may
qualify as "work made for hire" as defined in 17 U.S.C. § 101, such Deliverables
are hereby deemed a "work made for hire" for Client. To the extent that any of the Deliverables
do not constitute a "work made for hire," Marketer hereby irrevocably assigns, and shall
cause the Marketer Personnel to irrevocably assign to Client, in each case without additional
consideration, all right, title and interest throughout the world in and to the Deliverables,
including all Intellectual Property therein. The Marketer shall cause the Marketer Personnel
to irrevocably waive, to the extent permitted by applicable Law, any and all claims such
Marketer Personnel may now or hereafter have in any jurisdiction to so-called "moral
rights" or rights of droit moral with respect to the Deliverables.
(b)
Upon the reasonable request of Client, Marketer shall, and shall cause the Marketer Personnel
to, promptly take such further actions, including execution and delivery of all appropriate
instruments of conveyance, as may be necessary to assist Client to prosecute, register,
perfect or record its rights in or to any Deliverables.
(c)
Marketer and its licensors are, and shall remain, the sole and exclusive owners of all
right, title and interest in and to the Pre-Existing Materials, including all Intellectual
Property therein. Marketer hereby grants Client a perpetual, limited, royalty-free, non-transferable,
non-sublicenseable, worldwide license to use, perform, display, execute, reproduce, distribute,
transmit, modify (including to create derivative works), import, make, have made, sell,
offer to sell and otherwise exploit any Pre-Existing Materials to the extent incorporated
in, combined with or otherwise necessary for the use of the Deliverables solely to the
extent reasonably required in connection with Client's receipt or use of the Services
and Deliverables. All other rights in and to the Pre-Existing Materials are expressly
reserved by Marketer.
4.3
Residuals. The terms of this Agreement shall not be construed to limit either party’s
right to independently develop or acquire products or services without use of the other
party’s Proprietary or Confidential Information. Either party shall be free to
use for any purpose the residuals resulting from access to or work in the process of
development of the Deliverables or provision of services hereunder, provided that such
party shall maintain the confidentiality of the Confidential Information as provided
herein.
|
The term “residuals” means general skills, know-how, expertise and
generalized ideas and concepts which are in non-tangible form, which may be retained
in unaided memory by persons who have had access to the Deliverables or Confidential
Information, so long as it or they acquire and apply such information without disclosure
or unauthorized use of any Confidential Information. Neither party shall have any obligation
to limit or restrict the assignment of such persons or to pay royalties for any work
resulting from the use of residuals. However, the foregoing shall not be deemed to grant
to either party a license under the other party’s copyrights, patents, or other
intellectual property protected by federal or state statutory or common law.pt
5.CLIENT’S
PAYMENT OBLIGATIONS.
5.1 Fees and Expenses.
(a)
In consideration of the provision of the Services and the rights granted to Client under this Agreement, Client shall pay Marketer
the sum(s) set forth in the Order Form(s) in accordance with the milestones and payment schedule therein.
5.2 Payment.
(a)
Client shall pay all properly invoiced amounts due to Marketer pursuant to Section 5.1 within 30 days after Client's receipt of
such invoice, except for any amounts disputed by Client in good faith and in accordance with Section 5.4].
(b) Client shall make all payments
in US dollars by check or wire transfer in accordance with the following wire instructions:
●
Harmon Brothers LLC
●
Account #: #########
●
Zions Bank’s routing number: #########
●
Zions Bank’s SWIFT code: ######## (optional)
●
Zions Bank’s phone number: ###-###-####
5.3
Taxes. All expenses payable by Client under this Agreement are exclusive of all sales, use and excise taxes, and any other similar
taxes, duties and charges of any kind imposed by any Governmental Authority on such amounts. Marketer shall be responsible for
all such charges, costs and taxes, except for any taxes imposed on, or with respect to, Client's income, revenues, gross receipts,
personnel, or real or personal property or other assets.
5.4
Invoice Disputes. Client shall notify Marketer in writing of any dispute with an invoice (along with substantiating documentation/a
reasonably detailed description of the nature of the dispute and any remedial action required to resolve the dispute) within 60days
from the date of such invoice. Client will be deemed to have accepted all invoices for which Marketer does not receive timely
notification of dispute, and shall pay all undisputed amounts due under such invoices within the period set forth in Section 5.2.
The Parties shall seek to resolve all such disputes expeditiously and in good faith.
5.5
Late Payments. Except for invoiced payments that Client has successfully disputed, Client shall pay interest on all late payments,
calculated daily and compounded monthly at the rate of 1.5% per month. Client shall also be obligated to reimburse Marketer for
all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees.
6.
REPRESENTATIONS, WARRANTIES AND COVENANTS.
6.1
Mutual Representations, Warranties and Covenants. Each Party represents and warrants that:
(a)
it is a legal entity in good standing in the jurisdiction of its formation or registration, qualified to do business in every
jurisdiction in which such qualification is required for purposes of this Agreement, except where the failure to be so qualified
would not reasonably be expected to adversely affect its ability to perform its obligations under this Agreement.
(d)
it has not, and during the Term will not, enter into any oral or written contract or negotiations with any third party that would
impair the rights granted to the other Party under this Agreement, nor is it aware of any claims or actions that may limit or
impair any of the rights granted to the other Party hereunder;
|
(e)
the execution of this Agreement and associated Order Forms and Exhibits has been duly authorized by all necessary corporate action
of the Party and constitutes a legally binding undertaking.
6.2
Marketer Representations, Warranties and Covenants. Marketer represents, warrants and covenants to Client that:
(a)
it has, or shall obtain and shall maintain in full force and effect during the Term, all necessary licenses, permits, consents
and authorizations as may be necessary in connection with the Campaign and provision of the Services;
(b)
it shall materially comply with, and ensure that all Marketer Personnel and third party providers comply with, all policies and
guidelines of Client that are communicated to Marketer in writing;
(c)
Client will receive good and valid title to all Deliverables, free and clear of all encumbrances and liens of any kind; and
(d)
to the best of Marketer’s knowledge and belief, none of the Services, Deliverables or client's use thereof infringe or will
infringe any Intellectual Property of any third party arising under the Laws of the United States, and, as of the date hereof,
there are no pending or, to Marketer's knowledge, threatened claims, litigation or other proceedings pending against Marketer
by any third party based on an alleged violation of such Intellectual Property, in each case, excluding any infringement or claim,
litigation or other proceedings to the extent arising out of (i) any Client Materials or any instruction, information, designs,
specifications or other materials provided by Client to Marketer, (ii) use of the Deliverables in combination with any materials
or equipment not supplied or specified by Marketer, if the infringement would have been avoided by the use of the Deliverables
not so combined, and (iii) any modifications or changes made to the Deliverables by or on behalf of any Person other than Marketer.
6.3
Client Representations, Warranties and Covenants. Client represents, warrants and covenants to Marketer that:
(a)
it has or shortly will provided Marketer with a copy of any applicable internal policies or procedures and a written description
of any specifications or other requirements or restrictions applying to any of the Services or the Campaign; and
(b)
it has and shall maintain throughout the Term, all rights, licenses and consents required in connection with the Campaign, including
any such right or licenses required to lawfully use, and to authorize Marketer to use, any Client Intellectual Property or Client
Materials provided to Marketer for use in connection with the Campaign.
6.4
NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS
SECTION 6.4, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY'S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR
IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE,
USAGE, TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IN MAKING ITS DECISION
TO ENTER INTO THIS AGREEMENT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON
ON SUCH PARTY'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 6 OF THIS AGREEMENT.
7.
INDEMNIFICATION.
7.1
Client Indemnification Obligations. Client shall defend, indemnify and hold harmless Marketer, and its officers, directors, employees,
agents, Affiliates, successors and permitted assigns (collectively, "Marketer Indemnified Party"), from and against any and all
Losses arising out of or resulting from any third-party Claim, or direct Claim, alleging:
(a) breach by Client or its Personnel of any representation, warranty, covenant or other
obligations set forth in this Agreement
(b) gross negligence or more culpable act or omission of Client or its Personnel (including any recklessness or willful misconduct)
in connection with the performance of its obligations under this Agreement; and
|
(c)
that any Client Materials or Client Intellectual Property or Marketer's receipt or use thereof in accordance with the terms of
this Agreement infringes any Intellectual Property of a third party, arising under the applicable federal or state laws.
7.2
Marketer Indemnification Obligations. Marketer shall defend, indemnify and hold harmless Client and its officers, directors, employees,
agents, affiliates, successors and permitted assigns (collectively, "Client Indemnified Party"), from and against any and all
Losses arising out of or resulting from any third-party Claim, or direct Claim, alleging:
(a)
breach by Marketer or its personnel of any representation, warranty, covenant or other obligations set forth in this Agreement
(b)
gross negligence or more culpable act or omission of marketer or its personnel (including any recklessness or willful misconduct)
in connection with the performance of its obligations under this Agreement; and
(c)
that any of Marketer’s materials, intellectual property, or pre-existing materials or Client's receipt or use thereof in
accordance with the terms of this Agreement infringes any Intellectual Property of a party who was (or is) a prior (or current)
client of Marketer.7.3Indemnification Procedures. If Marketer or Client seeks indemnification under this Section 7, such party
(the "Indemnified Party") shall give the other party from whom indemnification is sought (the "Indemnifying Party"): (a) prompt
notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party
from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure;
and (b) reasonable cooperation in the defense of such claim. The Indemnifying Party shall have the right to control the defense
and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval
of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party's rights or interest.
The Indemnified Party shall have the right to participate in the defense at its own expense.
7.4
EXCLUSIVE REMEDY FOR CLAIMS OF INDEMNIFICATION. THIS SECTION 7 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING
PARTY AND THE SOLE AND EXCLUSIVE REMEDY OF EACH INDEMNIFIED PARTY FOR ANY DAMAGES COVERED BY THIS SECTION 7.
8.
LIMITATION OF LIABILITY.
8.1
NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT,
BUSINESS INTERRUPTION AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE,
REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2
MAXIMUM LIABILITY. EXCEPT FOR LIABILITIES ARISING OUT OF A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7.2(b) ABOVE
AND THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 9 BELOW, EACH PARTY'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, SHALL NOT EXCEED
THE SUM OF THE FEES AND EXPENSES IDENTIFIED IN THE ORDER FORM AND LIABILITY SHALL BE LIMITED TO THE INDIVIDUAL CAMPAIGN FROM WHICH
THE LIABILITY OR CLAIM ARISES, AND MAXIMUM LIABILITY SHALL ALSO BE LIMITED TO THE CREATIVE & PRODUCTION EXPENSES INCURRED
TO CREATE & PRODUCE SAID CAMPAIGN, WHETHER OR NOT PAID, EARNED OR UNEARNED IN THE PERIOD PRECEDING THE EVENT GIVING RISE TO
THE CLAIM. MAXIMUM LIABILITY SHALL NOT EXTEND TO FEES AND EXPENSES PAID TO THIRD PARTY ADVERTISING PLATFORMS. MAXIMUM LIABILITY
SHALL NOT EXTEND TO FEES AND EXPENSES ASSOCIATED WITH THE OPTIMIZATION AND DISTRIBUTION COSTS.
|
9.
CONFIDENTIALITY.
From time to time during the Term, either Party (as the "Disclosing
Party") may disclose or make available to the other Party (as the "Receiving Party") information about its business affairs and
services, confidential information and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential
information and other sensitive or proprietary information, as well as the terms of this Agreement, whether or not marked, designated
or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include
information that, at the time of disclosure : (a) is or becomes generally available to and known by the public other than as a
result of, directly or indirectly, any breach of this Section 9 by the Receiving Party or any of its Representatives; (b) is or
becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party
is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving
Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed
by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information;
or (e) is required to be disclosed pursuant to applicable Law. The Receiving Party shall protect and safeguard the confidentiality
of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect
its own Confidential Information, but in no event with less than a commercially reasonable degree of care; not use the Disclosing
Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform
its obligations under this Agreement; and not disclose any such Confidential Information to any Person, except to the Receiving
Party's Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to
exercise its rights or perform its obligations under this Agreement. The Receiving Party shall, at the expiration or earlier termination
of this Agreement or at the Disclosing Party's written request, promptly return or destroy all Confidential Information and copies
thereof that it has received under this Agreement.
10.
TERM AND TERMINATION.
10.
Term. The term of this Agreement commences on the Effective Date and continues until completion of the Services outlined in Order
Form(s), unless it is earlier terminated in accordance with the terms of this Agreement (the "Term").
10.2
Termination for Cause.
(a)
Either Party may terminate this Agreement, effective upon written Notice, to the other Party (the "Defaulting Party") if the Defaulting
Party:
(i)
materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure
(other than a failure by Client to make timely payments (a "Payment Failure"), which is separately addressed in Section 10.2(b),
the Defaulting Party does not cure such breach within fifteen (15) days after receipt of written notice of such breach;
(ii)
becomes insolvent or is generally unable to pay its debts as they become due;
(iii)
files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or
involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law;
(iv)
makes or seeks to make a general assignment for the benefit of its creditors;
(v)
applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction
to take charge of or sell any material portion of its property or business;
(vi)
is dissolved or liquidated; or
|
(vii)
is unable to perform its obligations under this Agreement due to the occurrence of a Force Majeure Event that lasts for more than
thirty (30) days.
(b)
Marketer may terminate this Agreement, effective upon written Notice to Client if:
(i)
a Payment Failure by Client continues for seven (7) days after Client's receipt of written notice of nonpayment; or
(ii)
during the Term, more than one Payment Failure occurs.
10.3
Termination Without Cause. Client may terminate this Agreement on twenty-five (25) Business Days' prior written Notice to Marketer
subject to Client's payment to Marketer of all outstanding expenses, invoices and costs. Termination without cause leaves intact
Client’s obligation and agreement to pay the percentage-based management fee for ongoing adspend, should the Client continue
to purchase adspend, internally or through a third party, to drive traffic to content created under the terms of this Agreement
for the life of the content and as set forth in the Order Form.
10.4
Termination by Marketer. The parties further acknowledge and agree that Marketer shall have the right to terminate the agreement
prior to commencement of the Campaign, without liability on the part of Client, if the parties do not mutually agree that the
final product meets their respective expectations as to quality sufficient to enable Marketer to successfully pursue the Campaign.
10.5
Effect of Expiration or Termination.
(a)
Expiration or termination of this Agreement will not affect any rights or obligations that:
(i)
are to survive the expiration or earlier termination of this Agreement; and
(ii)
were incurred by the Parties prior to such expiration or earlier termination.
(b)
Upon expiration or termination of this Agreement for any reason, Marketer shall:
(i)
promptly deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid and all Client Materials;
and
(ii)
provide reasonable cooperation and assistance to Client upon Client's written request and at Client's expense in transitioning
the Services to an alternate Marketer.
11.
MISCELLANEOUS.
11.1
Further Assurances. Upon a Party's reasonable request, the other Party shall, at its sole cost and expense, execute and deliver
all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.
11.2
Entire Agreement. This Agreement, including the related schedules attached hereto, constitutes the sole and entire agreement of
the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings,
agreements, representations and warranties, both written and oral, with respect to such subject matter.
11.3
Survival. Subject to the limitations and other provisions of this Agreement, (a) Section 6 (Representations, Warranties and Certain
Covenants) shall survive the expiration or earlier termination of this Agreement for a period of 24 months after such expiration
or termination; and (b) Section 5 (Client’s Payment Obligations), Section 7 (Indemnification), Section 8 (Limitation of
Liability), Section 9 (Confidentiality), Section 10 (Term; Termination), and Section 11 (Miscellaneous), of this Agreement, as
well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination,
shall survive the expiration or earlier termination of this Agreement for the period of twelve (12) months after such expiration
or termination. No lawsuit or other action based upon or arising in any way out of this Agreement may be brought by either Party
after the expiration of the applicable survival period; provided, however, that any claims asserted in good faith with reasonable
specificity and in writing by Notice prior to the expiration of the applicable survival period are not thereafter barred by the
expiration of the relevant period, and the survival of such claims shall be governed by the applicable statute of limitations
under the law of the jurisdiction.
|
11.4
Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall
be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address
that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered
by personal delivery, pre-paid by nationally recognized overnight courier, by e-mail of a PDF document (with confirmation of transmission),
or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this
Agreement, a Notice is effective upon receipt by the receiving party, and (b) if the party giving the Notice has complied with
the requirements of this Section 11.4.
11.5 Interpretation. The Parties drafted this Agreement without
regard to any presumption or rule requiring construction or interpretation against the Party drafting the instrument. The Order
Form(s) and exhibits referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim
herein.
11.6
Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
11.7
Severability. If any term or provision of this Agreement is 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; provided, however, that if any fundamental term or provision of this Agreement
is invalid, illegal or unenforceable, the remainder of this Agreement shall be unenforceable.
11.8
Amendment and Modification. No amendment to or modification of this Agreement is effective unless it is in writing and signed
by an authorized Representative of each Party.
11.9
Waiver.
(a)
No waiver under this Agreement is effective unless it is in writing and signed by an authorized Representative of the Party waiving
its right.
(b)
Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate
as a waiver on any future occasion.
(c)
None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Agreement:
(i)
any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under this Agreement; or
(ii)
any act, omission or course of dealing between the Parties.
11.10
Equitable Remedies. Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations
under Section 9 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy
and (b) in the event of a breach or a threatened breach by such Party of any such obligations, the other Party shall, in addition
to any and all other rights and remedies that may be available to such Party at law, at equity or otherwise in respect of such
breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and
any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other
security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy.
|
11.11
Assignment. Neither Party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without
the prior written consent of the other party; provided, however, that either Party may assign this Agreement to a successor-in-interest
by consolidation, merger or operation of law or to a purchaser of all or substantially all of the Party's assets. No assignment
shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer in violation of the
foregoing shall be void. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective
successors and permitted assigns.
11.12
Choice of Law. This Agreement, including all documents and exhibits, schedules, attachments and appendices attached to this Agreement
and thereto, and all matters arising out of or relating to this Agreement, shall be governed by, and construed in accordance with,
the Laws of the State of Utah, United States of America without giving effect to any conflict of laws provisions thereof.
11.13
Choice of Forum. Each Party 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 in any forum other than the district courts of the State
of Utah and the federal district court for the District of Utah. Each Party irrevocably and unconditionally submits to the exclusive
jurisdiction of such courts.
11.14
Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original.
11.15
Force Majeure.
(a)
No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement,
for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to
the other Party under this Agreement), when and to the extent such failure or delay is caused by or results from acts beyond the
affected Party's reasonable control and for which the law of Utah has recognized Force Majeure status. ("Force Majeure Event").
11.16
Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise,
employment or fiduciary relationship between the Parties. Marketer is an independent contractor pursuant to this Agreement. Neither
Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other
Party or to bind the other Party to any contract, agreement or undertaking with any third party.
11.17
Marketer and Client protect their contractor and employee relationships. Should either party choose to recruit, and/or bring into
their employ, or enter into a direct contractual relationship outside of this agreement; with any member of the other party’s
team, such party agrees to pay a one-time fee of the annual salary of such individual to the other party.
11.18
Marketer maintains ownership of all props, sets, costumes, raw footage, software, unused concepts; and maintains the right to
use, repurpose, or dispose of such property. Marketer will act in good faith so that such use will not result in brand or trademark
confusion for Client and their respective brands and/or trademarks.
11.19
In any dispute resulting in litigation between the parties, the prevailing party shall be entitled to recover its reasonable attorneys’
fees and court costs from the non-prevailing party.
|
MARKETER | CLIENT |
Signature: /s/ Benton Crane | Signature: /s/ Liz Ellis |
Printed name: Benton Crane | Printed Name: Liz Ellis |
Title: Director | Title: Dir Ops |
Promotion & MarketingServices
Order Form
|
MARKETER:
Harmon Brothers LLC
|
Primary Contact: Benton Crane
Phone:
###.###.####
Email:
[Email Address]
|
|
CLIENT:
VidAngel, LLC
|
Primary Contact: Dave Vance
Secondary Contact: Liz Ellis
Phone
Dave: ###.###.####
Phone
Liz: ###.###.####
Email
Dave: [Email Address]
Email
Liz: [Email Address]
|
|
Effective Date:
|
January 21, 2016 – VidAngel Board approval granted
|
1.
|
SERVICES. Marketer hereby agrees to provide the Promotion and Marketing Services set forth in the table below.
|
|
Background: The substance of this Agreement was presented by the Marketer’s team and decided at a meeting of the VidAngel Board convened on Thursday, January 21, 2016. Both Marketer and Client have conducted their business activities and relationships under the basic principles of this Agreement since that date. This document is retroactive to the Effective Date and memorializes and confirms our understanding, setting forth all Terms & Conditions.
|
2.
|
For the purposes of understanding the parameters of the Agreement, the services provided by Marketer are divided into two general classifications: Creative & Production Services and Optimization & Distribution Services.
|
3.
|
CREATIVE & PRODUCTION SERVICES: Marketer agrees to provide Creative & Production services on an open-ended and as-needed basis. When Client requests Creative & Production services, Marketer will make all reasonable efforts to deliver these services with best-in-class production values and superior execution and craft. Client is free to use other providers to create video content, and to enlist Marketer’s services on an at will basis. Any VidAngel content, produced or co-produced in reliance on or using Marketer’s services falls under the terms of this Agreement.
|
|
Billing for Creative & Production Services: Marketer will invoice Client for all Creative & Production Services at cost. Each of Marketer’s core team members has a personal hourly, billable rate. Time spent by the core team on Client’s projects will be billed at these rates with no additional markup. All third party sub-contractor invoices will also be re-invoiced to Client without any markup, and the original invoices and supporting documentation shall be available on request. All other costs, including but not limited to: props, craft (food and catering onset), facility rentals, travel, lodging, airfare, location fees, equipment rentals, equipment purchases, storage, costuming, vehicle rentals, talent fees, talent management fees, licensing fees, digital effects, post-production finishing services, music or composition, event specific or shoot specific insurance, and a proportional share of Marketer’s annual E&O Insurance (costs spread across multiple clients) will be invoiced to Client in a timely manner during, and immediately following, the completion of the Creative and Productions Services This is not intended to be a comprehensive list of expense types, and Marketer has the right to pass along any and all other costs to Client that are directly related to the Creative & Production phase of making the video production and building the marketing campaign.
|
4.
|
OPTIMIZATION & DISTRIBUTION SERVICES: Marketer’s business model revolves around optimizing and distributing video content produced, co-produced or otherwise created by Marketer both via organic social platforms as well as with paid adspend. Marketer’s primary work product involves “conversion videos,” meaning content videos, supporting web funnels and advertising designed to drive a purchase conversion and deliver the Client a return on investment. Once a conversion video content piece is created and delivered, Client is entitled to distribute said content by posting it on Client’s own internal website or on external video hosting platforms (such as Youtube, Facebook, Vimeo and others) to accrue organic traffic and views. Marketer does not charge additional fees for nonpaid use of the content.
|
|
Client shall pay Marketer a percentage-based management fee for all adspend which drives traffic to content produced, co-produced or otherwise created by Marketer. The percentages and the circumstances under which they apply are set forth in the table below as part of this Order Form.
|
|
In the event either Marketer or Client elect to sever their relationship as pertains to Creative & Production Services, Client is under contractual obligation with respect to paid advertising for the life of the video content already created under the Agreement. Should Client continue to purchase adspend for video content and conversion videos created under this Agreement, the percentage-based management fee shall continue to apply for the life of the content.
|
Description:
|
Reg. Price:
|
Discount:
|
Subtotal:
|
|||
o Exclusive Setup/Production Services
Marketer will produce and distribute multiple conversion videos in accordance with the Proposal and as requested by Client. Marketer will build and launch a landing-page on Client’s website in accordance with the Proposal.
|
$500,000 per campaign
|
All Production Services Delivered At Cost
|
Variable On A Per Campaign or Individual Content Basis
|
|||
o Exclusive Distribution Services
Marketer shall distribute the conversion videos it produces under this Agreement to Client branded channels at a collection of Internet websites, including but not limited to Youtube.com and Facebook.com
|
(included)
|
(included)
|
(included)
|
|||
o Promotion Marketing Services
Marketer shall promote the conversion videos across various media outlets, to be chosen or designated in consultation with Client, including but not limited to (a) Youtube.com; and (b) Facebook, which are both hereby expressly approved by Client. Client may engage in its own activities, either directly or through third parties, to promote the conversion videos; however, Client shall pay Marketer an adspend commission for paid advertising at the rates below. Client will consult Marketer to prevent overlap or cross messaging. In the event Client engages in its own promotional activities, Client will retain all responsibility and liability for compliance with regulatory and truth in advertising laws.
|
(included)
|
(included)
|
(included)
|
|||
o Adspend Commission (Marketer purchased)
Client shall pay Marketer a management fee for all adspend purchased through Marketer that drives traffic to the conversion videos.
|
20%
|
-5%
|
15%
|
|||
o Adspend Commission (Client purchased)
Client shall pay Marketer a management fee for all adspend purchased through any source other than Marketer that drives traffic to the conversion videos in the mediums of internet and direct response television
|
20%
|
-5%
|
15%
|
|||
o Adspend Commission (Client purchased – alternative sources)
Client shall pay Marketer a management fee for all adspend purchased through any source other than Marketer that drives traffic to the conversion videos in the mediums of radio, print and other non-internet and direct response television where an ad agency or marketer generally is used to place ads. An example of how this applies is if Client chooses to use video content created by Marketer, and use the content as a television advertisement. .
|
20%
|
-15%
|
5%
|
5.
|
PAYMENT SCHEDULE. Payments for the Creative & Production Services are payable on receipt, after a reasonable period to review invoices/bill submissions and verify line items and costs.
|
|
Payments for Optimization & Distribution Services (adspend) are payable in advance of adspend expenditures. Marketer will provide an up-to-date accounting of funds on deposit upon Client request.
|
|
REPORTS. Client shall report Adspend, supported by reasonable documentation within ten (10) business days following the end of each calendar month. Marketer shall provide Client with reports of data related to the Promotion Marketing Services and Adspend Commission upon request within ten (10) business days of the date the data was originally requested.
|
|
Client shall make all payments to Harmon Brothers LLC in US dollars by check or wire transfer in accordance with the following wire instructions:
|
|
Account #: #########
|
|
Zions Bank’s routing number: #########
|
|
Zions Bank’s phone number: ###-###-####
|
6.
|
TERMS AND CONDITIONS. The Services described in Section 1-5, above, and associated Exhibits are provided under the terms and conditions of the Harmon Brothers Promotion & Marketing Services Agreement, which is hereby incorporated herein by reference and which. Capitalized terms not defined herein shall have the same meanings as those reflected in the Promotion & Marketing Services Agreement. In the event any conflicting terms exist between this Order Form and the Harmon Brothers Promotion & Marketing Services Agreement, this Order Form shall control.
|
MARKETER | CLIENT |
Signature: /s/ Benton Crane | Signature: /s/ Liz Ellis |
Printed name: Benton Crane | Printed Name: Liz Ellis |
Title: Director | Title: Dir Ops |
Exhibit 8.1
ESCROW SERVICES AGREEMENT
This Escrow Services Agreement (this “Agreement”) is made and entered into as of [_________ ], 2016, by and between Issuer Direct Corp., a ______ corporation (“Issuer Direct” or “Escrow Agent”), and VidAngel, Inc., a Delaware corporation (“Issuer”).
RECITALS
WHEREAS, Issuer proposes to offer for sale to investors as disclosed in its offering statement on Form 1-A (the “Offering Statement”) filed with the U.S. Securities and Exchange Commission (the “SEC”) File No. 024-10596, shares of its Class B nonvoting common stock (the “Securities”) pursuant to Tier 2 of Regulation A under the Securities Act of 1933, as amended (the “Offering”), in the minimum amount of $5,000,000 (the “Minimum Offering Amount”) and the maximum amount of $11,250,000.00 (the “Maximum Offering Amount”).
WHEREAS, Issuer desires to establish an Escrow Account in which funds in excess of $5,000.00 received from a prospective investor (each, a “Subscriber” and collectively, “Subscribers”) for the purchase of Securities pursuant to the terms and conditions of a Subscription Agreement with the Issuer (the “Subscription Agreement”) will be held during the Offering, subject to the terms and conditions of this Agreement. Issuer Direct agrees to serve as Escrow Agent with respect to such Escrow Account in accordance with the terms and conditions set forth herein to be held at a FDIC insured bank (the “Bank”), in a segregated account as defined below.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing, it is hereby agreed as follows:
1. | Establishment of Escrow Account. Prior to the date the SEC issues a qualification for the sale of the Securities pursuant to the Offering Statement (the “Qualification Date”), the Escrow Agent shall establish an account at the Bank, entitled “Issuer Direct as Agent for VidAngel, Inc. Escrow Account” (the “Escrow Account”). The Escrow Account shall be a segregated, deposit account at the Bank. |
2. Escrow
Period. The Escrow Period shall begin on the Qualification Date and shall terminate
in whole or in part upon the earlier to occur of the following:
a. | The date upon which subscription amounts for the Minimum Amount of the Offering required to be sold have been deposited and cleared in the Escrow Account. The Escrow Account shall remain open pending receipt of Securities to meet the Maximum Amount of the Offering; or |
b. | December 31, 2016; or |
c. | The date upon which a determination is made by Issuer to terminate the Offering prior to closing. |
During the Escrow Period, the parties agree that (i) Escrow Account and escrowed funds will be held for the benefit of the Subscribers, and that (ii) the Issuer is not entitled to any funds received into escrow, and that no amounts deposited into the Escrow Account shall become the property of Issuer or any other entity, or be subject to any debts, liens or encumbrances of any kind of Issuer or any other entity, until the Issuer has triggered closing of such funds. Even after the sale of securities to investors, the Issuer may elect to continue to leave funds in the Escrow Account in order to protect investors as needed.
In addition, Issuer and Escrow Agent acknowledge that the total funds raised cannot exceed the Maximum Amount of the Offering permitted by the Offering Statement. Issuer represents that no funds have yet been raised for the Issuer. The parties acknowledge and agree that all funds in excess of $5,000.00 received by the Escrow Agent from a Subscriber in the Offering will be deposited in the Escrow Account established by the Escrow Agent at the Bank.
1 |
3. | Deposits into the Escrow Account. All Subscribers will be instructed by the Issuer and the Escrow Agent to transfer funds by wire or ACH directly into the Escrow Account pursuant to the following instructions:
Fifth Third Bank c/o Issuer Direct Corp 500 Perimeter Park Dr., Suite D Morrisville, NC 27560 ABA Number: TBD For Credit To: Issuer Direct Corp Escrow Account Account Number: _____________ SWIFT CODE: ########
| |
Escrow Agent shall cause the Bank to process all Escrow Amounts for collection through the banking system and shall maintain an accounting of each deposit posted to its ledger, which also sets forth, among other things, each Subscriber’s name and address, the quantity of Securities purchased, and the amount paid. All monies so deposited in the Escrow Account and which have cleared the banking system are hereinafter referred to as the "Escrow Amount." Escrow Agent shall promptly, concurrent with any new or modified subscription, provide Issuer with a copy of the Subscriber’s signed subscription agreement and other information as may be reasonably requested by Issuer in connection with the performance of its duties under this Agreement. As required by government regulations pertaining to the US Treasury, Homeland Security, the Internal Revenue Service and the SEC, federal law requires financial institutions to obtain, reasonably verify and record information that identifies each person (natural person or legal entity, including its authorized persons) who funds and executes securities transactions. Information requested of the Issuer and Subscribers will be typical information requested in the gathering and verification guidelines and best practices promulgated by anti-money laundering (“AML”) rules and regulations and those regulatory agencies that enforce them. Escrow Agent is under no duty or responsibility to enforce collection of any wire or ACH delivered to it hereunder
If any Subscription Agreement for the purchase of Securities is rejected by the Company in its sole discretion, then the Subscription Agreement and the Escrow Amount for such Subscriber shall be returned to the rejected Subscriber by the Escrow Agent within ten days from the date of rejection by the Company
Escrow Agent reserves the right to deny, suspend or terminate participation in the Escrow Account of any Subscriber to the extent Escrow Agent deems it advisable or necessary to comply with applicable laws or to eliminate practices that are not consistent with securities industry laws, rules, regulations or best practices. Escrow Agent may at any time reject or return funds to any Subscriber (i) that do not clear background checks (anti-money laundering, USA PATRIOT Act, social security number issues, etc.) to the satisfaction of Escrow Agent, in its sole and absolute discretion, or, (ii) for which Escrow Agent determines, in its sole discretion, that it would be improper or unlawful for Escrow Agent to accept or hold the applicable Subscriber’s funds, as Escrow Agent, due to, among other possible issues, issues with the Subscriber or the source of the Subscriber’s funds. Escrow Agent shall promptly inform Issuer of any such return or rejection.
4. Disbursements
from the Escrow Account. In the event Escrow Agent does not receive written
instructions from the Issuer to release funds from Escrow on or prior to the termination
of the Escrow Period, Escrow Agent shall terminate Escrow and make a full and prompt
return of funds so that refunds are made to each Subscriber in the exact amount received
from said Subscriber, without deduction, penalty, or expense to Subscriber.
2 |
In the event Escrow Agent receives cleared funds for the Minimum Amount of the Offering prior to the termination of the Escrow Period and Escrow Agent receives a written instruction from Issuer, Escrow Agent shall, pursuant to those instructions, distribute funds from such Escrow Amount pursuant to the instructions of Issuer. The Escrow Agent shall effect such transfer by the close of business on the date the Escrow Agent receives the written instruction from the Issuer; provided, however if the Escrow Agent receives the written instruction from the Issuer after 2pm Mountain Time, then the Escrow Agent shall effect such transfer by the close of business on the next succeeding business day. Issuer’s written instructions to Escrow Agent shall certify that all conditions set forth in the Offering Statement for release of funds have been met for a closing of the Offering and include a schedule of deductions from the Escrow Account for any funds for management and offering and selling expenses, including without limitation, any process fees incurred by the Escrow Agent, from the gross proceeds of the Escrow Account prior to remitting such funds, if and when due, to Issuer. Escrow Agent is hereby directed to remit such funds as directed by Issuer directly to the appropriate parties, if any, to which they are due. Net proceeds (meaning gross proceeds less amounts remitted pursuant to Issuer’s instructions certain parties), will then be remitted to Issuer as described above.
5. Collection
Procedure. Any Subscriber funds which fail to clear or are subsequently reversed,
including but not limited to ACH charge-backs and wire recalls, shall be debited to the
Escrow Account, with such debits reflected on the escrow ledger. Any and all fees paid
by Issuer for funds receipt and processing are non-refundable, regardless of whether
ultimately cleared, failed, rescinded, returned or recalled. In the event of any Subscriber
refunds, returns or recalls after funds have already been remitted to Issuer, then Issuer
hereby irrevocably agrees to immediately and without delay or dispute send equivalent
funds to Escrow Agent to cover the refund, return or recall. If Issuer has any dispute
or disagreement with its Subscriber then that is separate and apart from this Agreement
and Issuer will address such situation directly with said Subscriber, including taking
whatever actions necessary to return such funds to Subscriber, but Issuer shall not involve
Escrow Agent in any such disputes.
6. | Investment of Escrow Amount. The Escrow Amount shall be deposited in the Escrow Account in accordance with Section 3 and held uninvested in the Escrow account, which shall be non-interest bearing. |
7. | Escrow Administration Fees, Compensation of Escrow Agent. Escrow Agent shall be entitled to compensation for its services as stated in the fee schedule attached hereto as Exhibit A, which compensation shall be paid by the Issuer. |
8. | Term and Termination. This Agreement will remain in full force during the Escrow Period. Even after this Agreement is terminated, certain provisions will remain in effect, including, but not limited to, items 3, 4, 5, 9, 10, 11 and 12 of this Agreement. |
9. | Binding Arbitration, Applicable Law and Venue, Attorneys Fees: This Agreement is governed by, and will be interpreted and enforced in accordance with the regulations of the SEC, and laws of the State of North Carolina, without regard to principles of conflict of laws. Any claim or dispute arising under this Agreement may only be brought in arbitration, with venue in North Carolina. Each of the parties hereby consents to this method of dispute resolution, as well as jurisdiction, and waives any right it may have to object to either the method, venue or jurisdiction for such claim or dispute. Any award an arbitrator makes will be final and binding on all parties and judgment on it may be entered in any court having jurisdiction. Furthermore, the prevailing party shall be entitled to recover damages plus reasonable attorney’s fees. |
10. | Liability. The Escrow Agent shall not be liable for any action taken or omitted hereunder, or for the misconduct of any employee, agent or attorney appointed by it, except in the case of willful misconduct or gross negligence. The Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Escrow Amount or any part thereof or to file any financing statement under the Uniform Commercial Code with respect to the Escrow Amount or any part thereof. |
11. | Indemnity. Issuer agrees to defend, indemnify and hold the Escrow Agent harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of this Agreement and/or arising from a breach of any provision in this Agreement, except to the extent that any losses, claims, damages, expenses or liabilities (or actions in respect thereof) result from the willful misconduct or gross negligence of the Indemnified Parties. This defense and indemnification obligation will survive termination of this Agreement. Escrow Agent reserves the right to assume, at its sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and Issuer agree to reasonably cooperate with Escrow Agent in the defense of any such claim, action, settlement or compromise negotiations, as requested by the Escrow Agent. |
3 |
12. | Entire Agreement, Severability and Force Majeure. This Agreement contains the entire agreement between Issuer and the Escrow Agent regarding the Escrow Account. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. Furthermore, no party shall be responsible for any failure to perform due to acts beyond its reasonable control, including acts of God, terrorism, shortage of supply, labor difficulties (including strikes), war, civil unrest, fire, floods, electrical outages, equipment or transmission failures, internet interruptions, vendor failures (including information technology providers), or other similar causes. |
13. | Changes. Escrow Agent may, at its sole discretion, comply with any new, changed, or reinterpreted regulatory or legal rules, laws or regulations, and any interpretations thereof, and without necessity of notice, to modify either this Agreement and/or the Escrow Account to comply or conform to such changes or interpretations. Furthermore, all parties agree that this Agreement shall continue in full force and be valid, unchanged and binding upon any successors of Escrow Agent and Issuer. Changes to this Agreement will be sent to you via email.
| |
|
14. | Notices. |
a. | Any communication in connection with this agreement must be in writing and, unless otherwise stated, may be given: |
ii) | in person, by post or fax; or |
iii) | by e-mail or other electronic communication. |
b. Such communications shall be addressed as follows:
To Escrow Agent:
Issuer Direct Corp.
500 Perimeter Park Drive, Suite D
Morrisville, NC 27560
Attention: _________________
Email: ____________________
Telephone: ________________
Fax: (202) 521-3505
To Issuer:
VidAngel, Inc.
249 N. University Avenue
Provo, Utah 84601
Attention: ______________
Telephone: (760) 933-8437
With a copy to:
Kaplan Voekler Cunningham & Frank, PLC
1401 East Cary Street
Richmond, VA 23218
Attention: Robert Kaplan, Esq.
Email: ___________________
Fax: (804) 823-4099
4 |
c. | Any party may change their notice or email address and/or facsimile number by giving written notice thereof in accordance with this Paragraph. All notices hereunder shall be deemed given: (1) if served in person, when served; (2) if sent by facsimile or email, on the date of transmission if before 6:00 p.m. Eastern time, provided that a hard copy of such notice is also sent by either a nationally recognized overnight courier or by U.S. Mail, first class; (3) if by overnight courier, by a nationally recognized courier which has a system of providing evidence of delivery, on the first business day after delivery to the courier; or (4) if by U.S. Mail, on the third day after deposit in the mail, postage prepaid, certified mail, return receipt requested. |
15. Counterparts. This Agreement may be executed in several counterparts or by separate instruments and by email transmission and all of such counterparts and instruments shall constitute one agreement, binding on all of the parties hereto.
[Remainder of this page intentionally left blank.]
5 |
Agreed by the undersigned as of the date set forth above by and between:
VIDANGEL, INC.
By: _____________________
Name:
Title:
ISSUER DIRECT CORP.
By____________________
Name:
Title:
[Execution page to Escrow Services Agreement]
6 |
EXHIBIT A
ESCROW AGENT FEES
$2,500 set up fee for transfer agent and escrow services*
$15.00 ACH fee per each incoming wire.
$25.00 ACH fee per each outgoing wire.
*Escrow Agent and Issuer acknowledge this fee has been paid as of the date of this Agreement.
7
3-(2 %!.\
M+PZ\=)-%TNTA:ZNOAAX1UCXHQHA^>&ZLYK5+1OQ(N!^=>D_\%,?$]KXE_X)
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MDO3E9*[2D]DG>UTM4