MASTER CLIENT SERVICE AGREEMENT
This is a Master Client Services Agreement ("Agreement") by and between you, the entity agreeing to the terms of and executing this Agreement ("you" or "Client") and Gotta Go Fast, LLC, d/b/a Go Fractional, a Delaware limited liability company, with a mailing address at 769 Broadway #1148, New York, NY 10003, United States ("Go Fractional").
In consideration of the mutual covenants, terms, and conditions set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the above-named parties agree as follows:
By accepting this Agreement, you acknowledge that you have read, understood, and agree to be bound by the terms and conditions herein. You further acknowledge that this Agreement is a contract between you and Go Fractional, even if it is electronic and is not physically signed by you and Go Fractional, and that the terms and conditions of this Agreement govern your receipt of the Services (defined below) and Go Fractional's provision thereof. By accepting this Agreement, Client agrees to be subject to all agreements and terms of the Platform, including but not limited to the Platform's Terms of Service and Privacy Policy, as provided at www.gofractional.com and any other written policies and agreements on the Platform.You represent that you have the authority to contractually bind the company, business, or other legal entity ("Client Entity") on whose behalf you are accepting this Agreement, in which case, for clarification, the terms "you" or "your" or "Client" refer to such Client Entity. If you do not have such authority to contractually bind such client entity to this Agreement, or if you do not agree with the terms and conditions of this Agreement, you must not accept this Agreement, and you may not receive the Service.
1. Services
1.1 Go Fractional is a company that matches its clients with select consultants. More specifically, Go Fractional curates and operates a proprietary network of select independent contractors (individually and collectively, "Talent"). Go Fractional matches and sources such Talent to its clients on a time and materials, staff augmentation basis. You agree that Go Fractional will use its commercially reasonable efforts to identify, present, and facilitate the engagement of certain qualified fractional professionals through Go Fractional website, platform, and related software and services (collectively, the "Platform" and such services, the "Go Fractional Services"), as further provided in each respective Statement of Work, (a "SOW"). Each SOW will provide a brief description of the work to be provided to you by Talent ("Work"), as well as the SOW start date, the fees for the Work, and other relevant material information.
2. Talent Agreement
Client agrees and acknowledges that Go Fractional is an intermediary party only that facilitates the engagement and payment of Talent, and that Client shall be responsible to provide all directions, instructions, materials, and feedback to Talent. Client agrees and acknowledges that Go Fractional recommends that Client enter into a standard form of services, confidentiality and intellectual property agreement(s) (the "Talent Agreement") with Talent directly and Go Fractional is not liable for any acts or omissions of Talent.
3. Client Cooperation
You understand that the performance of all Work by Talent depends in significant part on your actions. Talent will report directly to your designee ("Client Contact"). Such Client Contact will provide such Talent with necessary information, assistance, specifications, and requirements for such Talent's Work and will establish your expectations pursuant to reasonable and lawful instructions. The Client Contact will be responsible for setting, reviewing, and monitoring the project schedule, work schedules, code and/or other tangible results created by Talent and provided to you under this Agreement ("Work Output"), and all other aspects of Talent's Work under a SOW and coordinating the same directly with the Talent. Talent will otherwise be responsible for the method, manner, and means of performing the Work. You acknowledge and agree that Go Fractional will not oversee Talent or the performance of Talent's Work and will not control or direct Talent. Accordingly, you agree that Go Fractional will not be in a position to -- and expressly does not -- warrant or guarantee the quantity, quality, or timeliness of the Work or that any Talent will meet any deadline established or desired by you.
4. Payment; Invoices
Client shall pay Go Fractional the amounts set forth in each respective SOW (the "Fees"). Go Fractional shall make payment to any Talent engaged by Client.
4.1. Client acknowledges that Talent is not obligated to provide any services to Client until Go Fractional has received full payment of the Fees from Client, as set forth in the SOW. If Client's failure to provide full payment of the Fees continues for fifteen (15) consecutive days, Go Fractional may terminate this Agreement, or alternatively and at Go Fractional's sole discretion, terminate the respective SOW effective immediately, by providing written notice of termination. The Fees paid hereunder are not refundable to Client for any reason, including, but not limited to, the event that Client terminates Talent for any reason.
4.2. All payments will be made in U.S. Dollars and paid electronically via bank wire or ACH transfer. If you select ACH or credit card as your payment method, Go Fractional will be entitled to draw, or charge amounts due on the payment due date. Any amount due under this Agreement that remains unpaid 30 days after its due date ("Delinquent") will bear interest from the date that such payment became Delinquent until the date such amount is paid in full at the lower of 1.5% per month or the maximum rate permitted by law, calculated daily and compounded monthly. In the event of any action by Go Fractional to collect any unpaid, undisputed (in good faith) past due amounts, you will reimburse Go Fractional's costs of collection, including attorneys' fees and arbitration or court costs.
5. Independent Contractor Status.
Go Fractional is an independent contractor of the Client, and this Agreement does not create any association, partnership, joint venture or employee or agency relationship between Go Fractional and the Client for any purpose. Go Fractional has no authority, and shall not hold Go Fractional out as having authority, to bind the Client, and Go Fractional shall not make any agreements or representations on the Client's behalf without the Client's prior written consent. Go Fractional is not entitled to workers' compensation, retirement, insurance or other benefits afforded to employees of the Client. The Client is not responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including for unemployment or disability, or obtaining workers' compensation insurance on Go Fractional's behalf. Talent is not an employee or independent contractor of Go Fractional. Client is solely responsible for all applicable withholding or payment of any income, payroll, Social Security, or other federal, state, or local taxes, any insurance contributions, including for unemployment or disability, or obtaining workers' compensation insurance pursuant to its Talent Agreement.
6. Intellectual Property Rights of Go Fractional
Go Fractional owns all rights, title, and interest (including intellectual property rights) in and to Go Fractional Services and deliverables created by Go Fractional for Client under this Agreement, including the website, related materials and underlying text, graphics, images, photographs, videos, illustrations, and other content contained therein. All rights in and to Go Fractional Services and deliverables created by Go Fractional for Client under this Agreement, including all intellectual property rights therein and thereto, are reserved by Go Fractional. Any use of Go Fractional Services and deliverables created by Go Fractional for Client under this Agreement other than as specifically authorized herein, without Go Fractional's prior written permission, is strictly prohibited and will terminate the Agreement and violate Go Fractional's intellectual property rights.
7. Confidentiality
7.1. The Parties may disclose information which either Party considers to be confidential and proprietary to as a result or in preparation of this Agreement. During the Term and thereafter, the Parties (on their own behalf and on behalf of each of its subcontractors, employees, representatives, and agents of any kind) agrees to hold and treat all confidential information of the other Party, including, but not limited to, code, sketches, marketing strategies, design details and specifications, engineering, ideas, techniques, models, algorithms, software programs and source documents, trade secrets, information pertaining to business strategies and operations, other agreements, sales figures, financing, sourcing, employee and customer information and any other information that either Party reasonably should know is confidential, in each case whether spoken, written, printed, electronic, or in any other form or medium (collectively, the "Confidential Information") as confidential and protect the Confidential Information in a commercially reasonable manner, but at least with the same degree of care as either Party uses to protect its own Confidential Information of like nature. Either Party shall notify the other Party immediately in the event it becomes aware of any loss or disclosure of any Confidential Information.
7.2. Confidential Information does not include any information that (a) at the time of the disclosure or thereafter is lawfully obtained from publicly available sources generally known by the public; (b) is available to either Party on a non-confidential basis from a source that is not and was not bound by a confidentiality agreement with respect to the Confidential Information; or (c) has been independently acquired or developed by either Party without violating its obligations under this Agreement or under any federal or state law.
7.3. Nothing in this Agreement will be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, or pursuant to the Defend Trade Secrets Act of 2016 (in order to exercise either Party's rights thereunder), provided that the disclosure does not exceed the extent of disclosure required by such law, regulation or order. In the event either Party is compelled by law or legal process to disclose any Confidential Information, it shall promptly notify and reasonably cooperate with or assist the other Party so that the other Party may seek a protective order or other appropriate remedy. Either Party shall disclose only that portion of the Confidential Information which it is advised by counsel is legally required and shall exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
7.4. Notwithstanding the foregoing under Section 7, the Client acknowledges that Confidential Information may be shared subject to the terms of this provision by Go Fractional with any of Go Fractional's subcontractors or delegates it elects to use in its performance of this Agreement.
8. Restrictive Covenants
You agree that Go Fractional would be considerably harmed if Go Fractional were to invest its time, energy, and resources to recruit, screen and curate its talent network and introduce its Talent to you only for you and Talent to circumvent Go Fractional and enter into a direct or indirect arrangement outside of Go Fractional. You acknowledge and recognize the highly competitive and specialized nature of the business of Go Fractional and accordingly agrees as follows:
8.1. During the Term and for a period of twelve (12) months following the expiration of the Term, unless pursuant to the terms of this Agreement, Client will not, directly or indirectly, solicit or encourage to cease to work with Go Fractional any Talent (whether or not actually hired by Client), or directly or indirectly hire or contract, any Talent, or otherwise any person or entity who is an employee or contractor of Go Fractional or who was an employee or contractor of Go Fractional within the six (6)-month period preceding Go Fractional's termination of engagement without Go Fractional's written consent.
8.2. Client agrees and acknowledges that all Talent introduced to Client by Go Fractional under this Agreement are valuable business relationships of Go Fractional. Therefore during the Term and for twelve (12) months thereafter, Client agrees that it shall not, directly or indirectly, engage in any transaction, business dealings, or negotiations with any Talent introduced by Go Fractional with the intent of circumventing the terms of this Agreement or any agreement between Talent and Go Fractional without the prior written consent of Go Fractional, nor will you refer Talent to subsidiaries, parent companies, partnerships, holding companies, affiliated entities, or investors related to you in any form without processing such request through Go Fractional's regular client intake processes for the duration of the Term and for twelve (12) months thereafter.
8.3. Client agrees and acknowledges in the event that Client breaches the provisions of Section 8.1 or Section 8.2 that Go Fractional will suffer actual damages that will be impractical or extremely difficult to determine. Client agrees that the sum of Thirty Thousand Dollars ($30,000) or 20% of Talent's total estimated first year annualized compensation, including base salary, projected annualized bonus, signing bonus and any other paid, accrued, deferred or other cash or in-kind (e.g. allowances or reimbursements for car expenses or personal expenses, allowances or reimbursements for relocation, etc.), whichever is higher, per incident of breach is not a penalty, but a reasonable estimate of the loss that Go Fractional will incur, established in light of the circumstances existing at the time this Agreement was executed. The Client further acknowledges that: (i) the amount specified in Section 8.3 bears a reasonable relationship to, and is not plainly or grossly disproportionate to, the probable loss likely to be incurred in connection with any breach by the Client of Section 8.1 or Section 8.2, (ii) one of the reasons for the Parties reaching an agreement as to such amount was the uncertainty and cost of litigation regarding the question of actual damages, and (iii) the Parties are sophisticated business entities and have been represented by sophisticated and able legal counsel and negotiated this Agreement at arm's length.
9. Representations and Warranties
9.1. Go Fractional represents and warrants to the Client that (a) Go Fractional has the right to enter into this Agreement, to grant the rights granted herein and to perform fully all Go Fractional's obligations in this Agreement; and (b) the execution of the Agreement by Go Fractional's representative whose signature appears below has been duly authorized by all necessary internal approvals of Go Fractional.
9.2. The Client hereby represents and warrants to Go Fractional that (a) Client has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action; and (c) the Client's entering into this Agreement with Go Fractional and its performance of its obligations hereunder do not and will not conflict with or result in any breach or default under any other agreement, rule, regulation, law, or court order to which the Client is subject.
9.3. Not a Technology Development Contract. You acknowledge that this is not a technology development contract. You are solely responsible for the development of your technology and products, including Talent's Work and Work Output that may be incorporated therein. You agree that you will provide Talent with all applicable processes, policies, and resources necessary for Talent's Work. You are solely responsible for acquiring all rights and licenses to any software, code, tools, information, documentation, or other materials and intellectual property that you acquire from third parties (excluding Talent) necessary for the Talent to complete the Work.
9.4. Go Fractional makes no representation or warranty of any kind, express or implied, with respect to its Service, or Talent's Work and Work Output, arising from or relating to this Agreement. Go Fractional disclaims any other representations and warranties, including any implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any representations or warranties arising from course of dealing, course of performance, or usage of trade.
9.5. Sanctions Status and OFAC Compliance. The parties each represent and warrant that they are not, and to the knowledge of such party, none of such party's respective directors, officers, managers, members, or employees, or those of any of such party's subsidiaries, as the case may be, is a person who (a) is directly or indirectly owned or controlled by any person currently included on the List of Specially Designated Nationals (SDN) and Blocked Persons or the Foreign Sanctions Evaders List maintained by the United States Treasury Department's Office of Foreign Asset Control (OFAC), or (b) is directly or indirectly owned or controlled by any person who is located, organized, or resident in a country or territory that is, or whose government currently is, the target of countrywide or territorial sanctions imposed by any United States government sanctions authority.
9.6. Anti-Bribery. The parties each represent and warrant that neither party, nor any of their respective directors, officers, managers, members, or employees, or to such party's knowledge, agents or any persons acting on such party's behalf, has directly or indirectly made any bribes or other payments in the form of cash, gifts, or otherwise, or taken any other action in violation of the U.S. Foreign Corrupt Practices Act or other applicable anti-bribery or anti-corruption laws.
10. Indemnification
Each Party ("Indemnifying Party") shall defend, indemnify, and hold harmless the other Party and its affiliates, officers, directors, employees, agents, successors, and assigns (collectively, the "Indemnified Party") from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys' fees) (collectively, the "Claims") arising out of or resulting from a third party claim regarding the Indemnifying Party's acts or omissions in connection with its obligations under this Agreement, including breach of any representation, warranty, or obligation under this Agreement; provided, however, the indemnification obligation under this Section 10 shall apply only to the extent such Claims do not relate to and do not arise out of the Indemnified Party's willful misconduct or gross negligence.
11. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL GO FRACTIONAL BE LIABLE TO CLIENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, HOWEVER CAUSED, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN NO EVENT WILL GO FRACTIONAL'S TOTAL LIABILITY TO CLIENT UNDER THIS AGREEMENT, FOR ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED THE FEES PAID TO GO FRACTIONAL BY CLIENT DURING THE ONE (1) YEAR PERIOD PRECEDING THE EVENTS LEADING TO THE CLAIM.
12. Termination
This Agreement may be terminated immediately in the event of the other Party's material breach, provided that the non-breaching party provide written notice of such breach to the other party and thirty (30) day opportunity to cure. If Talent is terminated by Client for cause, any outstanding invoices for services rendered prior to the termination date shall remain due and payable in accordance with their original terms. Additionally, all other fees for services performed by Go Fractional up until the date of termination shall be immediately due and payable. Each individual SOW may be terminated pursuant to its specific terms. Termination of an individual SOW does not automatically terminate this Agreement. In the event there is no active SOW, this Agreement may be terminated by either Party with at least thirty (30) days' prior written notice.
13. Miscellaneous
13.1. Publicity. Go Fractional may refer to Client on Go Fractional's website or other marketing material which displays customers of Go Fractional, or may use Client as a reference; provided, however, that Client may decline or revoke this permission, by emailing [email protected]. Go Fractional will cease such publicity on its website within ten (10) business days of its receipt of such opt-out notice.
13.2. Succession and Assignment. Unless otherwise indicated in this Agreement, the Parties shall not assign any rights or delegate, or subcontract any obligations under this Agreement without the other Party's prior written consent. Any assignment without the prior written consent required under this Paragraph is null and void.
13.3. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings and agreements, whether oral or written, between them relating to the subject matter hereof.
13.4. Amendments and Waivers. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, is effective unless in writing signed by the Parties. No delay or failure to require performance of any provision of this Agreement constitutes a waiver of that provision as to that or any other instance.
13.5. Governing Law. This Agreement and all related documents including all exhibits and SOWs attached hereto will be governed in all respects by the laws of the State of New York, without giving effect to any conflicts of laws or principles that require the application of the law of a different jurisdiction.
13.6. Notices. Any notices to Go Fractional in connection with this Agreement will be made by email transmitted to [email protected] with a copy via nationally recognized carrier to: "Attn: Legal" at Go Fractional's address above. Notices to you will be made by email or nationally recognized carrier to the email or address which you provide to Go Fractional and/or is otherwise associated with your account, and will be deemed to have been given when sent by Go Fractional to the email provided to Go Fractional or delivered by such nationally recognized carrier at the mailing address provided by you and/or associated with your account.
13.7. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does 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, a court of competent jurisdiction may modify this Agreement to affect the original intent of the Parties to the fullest extent permitted under applicable law.
13.8. Construction. This Agreement is the result of negotiations between and has been reviewed by each of the Parties and their respective counsel, if any; accordingly, this Agreement is product of all of the Parties, and no ambiguity is construed in favor of or against any one of the Parties. The section and subsection headings used in this Agreement are for convenience only and will not be used in interpreting this Agreement.
13.9. Dispute Resolution Procedures. Unless otherwise agreed to in writing by the Parties, any dispute which has not been resolved between them shall be settled by binding arbitration in accordance with the Judicial Arbitration and Mediation Services ("JAMS") Comprehensive Arbitration Rules and Procedures conducted in New York County, New York. The Parties shall mutually select a single independent, conflict-free arbitrator, who has sufficient background and experience to resolve the matter in dispute. If the Parties are unable to reach agreement on the selection of the arbitrator within 15 business days after submission to arbitration, then either Party or both Parties shall immediately request JAMS to select an arbitrator with the requisite background, experience and expertise in the industry. Any judgment or award rendered by the arbitrator is final and binding on the Parties, and is governed by the terms and conditions hereof. Each Party shall bear his, her, or its own costs and expenses and attorneys' fees. All proceedings and decisions of the arbitrator are proprietary and confidential information of each of the Parties. Notwithstanding the foregoing, either Party may proceed to court in the State of New York, New York County to secure injunctive relief for any claim before or while arbitration is pending. In the event this arbitration clause is found unenforceable, the Parties hereby submit to the exclusive jurisdiction of the federal and state courts in New York County, New York for the adjudication of disputes arising from this Agreement.
13.10. Further Execution. The Parties agree to take all such further actions as may reasonably be necessary to carry out and consummate the intents and purposes of this Agreement.
13.11. Survival. The terms and conditions of Sections 5 through 11 and Section 13 survive the termination of this Agreement.
