Client Deal Memo Agreement

Terms & Conditions

The following Terms & Conditions, as of September 3, 2024, are incorporated into Digital Marketing Advisors, D.B.A. Shore Thang (“Company”) and Clients’ Deal Memo Agreement:

1. PERFORMANCE.  The manner in which Company Services are to be performed and unless otherwise specified, the specific hours to be worked by Company shall be determined by Company.  Company will work as many hours as Company determines may be reasonably necessary to fulfill Company’s obligations under this Agreement. Any third party who approaches Client to represent Client will be made aware of the terms of this Agreement and immediately referred to Company; and Client will  cooperate  and  assist  Company  and  take  any  action  Company may reasonably request to enable Company to fulfill its obligations under this Agreement and increase the reputation and goodwill of Client and Company.
2. Morals Clause. Client agrees to conduct themselves with due regard to public conventions and morals and agrees that they will not do or commit anything tending to degrade Company to society or bring them into public hatred, contempt, scorn or ridicule, or tending to shock, insult or offend the community or outrage public morals or decency, or tending to the prejudice Company. This includes public behavior and the correspondence of private communications (email, phone calls, text messages). Client agrees that Client’s conduct will be conducted in good faith — prioritizing honesty and integrity —  and return private communications sent between 10AM and 10PM Mountain time within twenty-four (24) hours or Client will incur a penalty of one-hundred fifty dollars ($150) USD per calendar day of delay, unless mutually agreed upon in writing extenuating circumstances or unforeseen acts of god (force majeure). 
   1. Responsibility of Information. Company shall be entitled to rely on all information provided by, and decisions and approvals of, Client in connection with Company’s work hereunder. Client hereby releases Company and its personnel from any liability and costs relating to the services hereunder to the extent such liability and costs are attributable to any information provided by Client personnel that is not complete, accurate or current in all material respects. Client remains responsible for all of Client’s decisions. 

2. BREACH. 
   1. Material Breach. If Client violates any term or provisions of the following sections, Client would be in Material Breach: Confidentiality, Non-Disparagement, Non-Solicitation and Representations and Warranties. If Client is in Material Breach, Company retains the right to terminate this Agreement by giving five (5) days’ notice to Client.

3. INTELLECTUAL PROPERTY RIGHTS.
   1. Ongoing Photo Release Rights. All content created whether shot and published by Company, Client, or third-parties during any Term of this Agreement, specifically for the Website, is owned by Company.
   2. Company retains all original photo release rights to the images and video created by Company or by Company’s subcontractors. Client retains the right to reasonably approve of images used for digital promotion, prior to publication. Company retains content copyright. Company shall be permitted to perform DMCA takedowns to contain leaks, piracy, etc on behalf of Client. 

4. CONFIDENTIALITY; NON-DISPARAGEMENT; INFRINGEMENT; NON-SOLICITATION
   1. Confidential Information.  Client acknowledges the need to preserve the confidentiality and secrecy of communications, data, formulae, processes and related concepts, business plans, financial statements, spreadsheets, customer or distribution lists, non-public personnel lists, advertising, promotion and marketing programs and materials, education programs and materials, training programs and materials, trade secrets, trade designs, development programs and materials, costs, revenues, investments, sales activities, credit and other financial data, financing methods, research, designs, drawings, plans, specifications, elevations, derivative works, design concepts, design boards, product specifications, displays, videos and photographs and any other digital or tangible property, that are received or learned by Client, any affiliate of Client, whether during the Term or prior to the Term (“Confidential Information”) and agrees that, both during the Term and during the period after the Term described below, neither Client nor any of its affiliates will use, disclose or make accessible to any person or entity the Confidential Information except (a) as required to perform under this Agreement, or (b) as may be reasonably necessary in connection with any lawsuit or governmental proceeding (provided that Client will take reasonable steps to ensure the confidentiality of the Confidential Information in any such proceeding and give written notice to Company with ample time prior to disclosure for Company to take any steps to maintain such confidentiality).  Client will, and will cause any affiliates take all necessary and appropriate steps to preserve in all respects the confidentiality and secrecy of the Confidential Information.  Client’s obligation to retain the Confidential Information as confidential under this Section will terminate only (i) at such time and to the extent that such becomes public knowledge and in the public domain through no breach of Client, or (ii) three (3) years after the last date of the Term, but only to the extent such Confidential Information does not constitute a “trade secret” as defined by California law.  The obligations of Client under this Section shall not terminate with respect to any Confidential Information if, and only so long as, such Confidential Information constitutes a “trade secret” as defined by California law.  
   2. Client acknowledges that all Confidential Information is valuable property and a protectable business interest of Company and that Client will not acquire by virtue of its performance under this Agreement or otherwise, any rights or interest in or to the Confidential Information other than as expressly provided herein.  In addition, Company and its affiliates will retain all proprietary, common law, statutory and other rights in and to the Confidential Information.  Client has no right to sublicense any of the Confidential Information.  
   3. Non-Disparagement. Neither Client nor any of its affiliates will, directly or indirectly, during the Term or at any time thereafter, knowingly make, publish or otherwise communicate to any third party any disparaging or derogatory statements or comments concerning Company or do or refrain from doing anything that may adversely affect, or disparage the reputation, prestige, value, image or impression of, the intellectual property, Company, its affiliates or any of Company’s officers, directors, managers, members, employees, affiliates, products, brands or related companies, by words, actions or other communications, or in any other manner whatsoever.  Nothing contained in this will prevent Client from making truthful statements to the extent Client is legally required to do so in the context of a litigation or similar proceeding.  
   4. Non-Solicitation. Client agrees that during the period commencing on the Effective Date and continuing throughout any Term and for one (1) year after any termination or expiration of this Agreement, Client will not and will not allow any of its affiliates, directly or indirectly, to solicit, divert or hire away, or attempt to solicit, divert or hire away: (i) any individual then employed by Company or any of its affiliates (or employed at any time by Company or any of its affiliates in the one year prior to the last day of the Term), whether or not such individual is a full-time employee or temporary employee of Company or any of its affiliates and whether or not such employment is for a determined period or is at-will, or (ii) any person that is then an agent or independent contractor of Company or any of its affiliates (or was an agent or independent contractor of Company or any of its affiliates at any time in the one year prior to the last day of the Term); nor will Client at any time during the Term or such one-year period following the Term, either directly or indirectly, induce or attempt to induce any such agent or independent contractor to terminate, breach or otherwise fail to perform any agency or other agreement with Company or any of its affiliates.  
   5. Survival.  This entire Section 4 shall survive termination of this Agreement.

5. INDEMNIFICATION.  Client hereby agrees to indemnify, defend and hold harmless Company, including any and all Company employees, agents, consultants or subcontractors, from and against any and all suits, actions, claims, proceedings, damages, settlements, judgments, injuries, liabilities, obligations, losses, risks, costs, investigation and expenses (including, without limitation, attorneys’ fees and litigation expenses) suffered or incurred by Company on account of or in connection with (a) the actual breech of any of Client’s representations, warranties, or covenants set forth herein, (b) relating to or arising from Client’s fraud, violation of law, negligence or willful misconduct, any breach by Client of this Agreement. (c) third party claims of infringement of any patents, trade secrets, copyrights, trademarks, service marks, trade names or similar proprietary rights alleged to have occurred with respect to Client’s content; ( (e) any damages incurred directly or by virtue of a claim made by a third party, in either case, arising out of a breach of a Client’s representations, warranties, covenants or duties arising out of, or in connection with, this Agreement (f) the accuracy, validity or representations made by Client in any documents (including, without limitation, any prospectus or business plan).  This Section 5 of this Agreement will survive termination of this Agreement.

6. REPRESENTATIONS AND WARRANTIES. Notwithstanding anything to the contrary contained in this agreement, Company makes no warranties, expressed or implied, or whether arising by operation of law, course of performance or dealing, custom, usage in the trade or profession or otherwise, including, without limitation, implied warranties of merchantability, non-infringement and fitness for a particular purpose, other than to provide the Services in good faith in accordance to applicable professional standards. Company makes no representations or warranties of any kind about the companies or the information about those companies that it will present to Client. Client agrees to assume full responsibility to undertake a detailed and thorough investigation of a third party’s financial statements and operation performance. 

Client represents and warrants that Client  has  not  appointed  any  third  party  to  carry  out  any  commercial activities on Client’s behalf and nor will Client do so at any time during any Initial or Successive Term without prior notification to Company in writing;

7. GOVERNING LAW AND BINDING ARBITRATION DISPUTE RESOLUTION.  If a dispute arises from or relates to this Agreement or the breach thereof, and if the dispute cannot be settled through direct discussions, the Parties agree to endeavor first to settle the dispute in good faith by mediation for a period of sixty (60) days before resorting to binding arbitration conducted in  accordance with the Federal Arbitration Act (FAA) and the American Arbitration Association (AAA) (“the Rules”), which are then in effect, unless the matter may be resolved by small claims court located in Los Angeles County, under the following terms: 
   1. Any claims received after the applicable/relevant statute of limitations period has passed will be deemed null and void.  
   2. This Agreement will be governed by and construed in accordance with the laws of the State of California, without reference to conflicts of laws rules, and without regard to its location of execution or performance. 
   3. The matter will be heard and determined by one arbitrator, mutually selected by the Parties as set forth in the Rules, in Los Angeles County.  
   4. Each Party must pay its own attorneys’ fees in any mediation or arbitration, but the Parties will each bear one-half of the cost of the applicable filing fee and cost of the arbitrator, if any.  The arbitrator will have the authority to award the prevailing Party attorneys’ fees in any arbitration.  
   5. All remedies and damages that would be available under the applicable law for the Parties’ claims in a court proceeding are available to the Parties through arbitration of their claims.
   6. The arbitration must be conducted expeditiously. As part of the arbitration proceedings, the Parties shall have the right to conduct discovery as provided in California Code of Civil Procedure Section 1283.05. Unless otherwise agreed upon by the Parties, discovery shall be limited by the arbitrator so as to maintain the arbitration as a speedy and economical method of dispute resolution.
   7. Everything related to the arbitration proceeding, including, without limitation, any discovery, the hearing, the record of the proceeding and all communications and correspondence regarding the arbitration are confidential and must not be open or disclosed to any third party or the public, except to the extent both Parties agree otherwise in writing, to the extent required in any other proceedings between the Parties, or to the extent required in response to a governmental agency or legal process.
   8. Nothing in this Section 7  may bar a Party from seeking injunctive relief to preserve the status quo pending an arbitration or mediation of the Parties dispute over a breach of any of the promises or agreements contained herein that will result in emergent irreparable and continuing damage to the disclosing Party for which there will be no adequate remedy at law, and the disclosing Party must be entitled to injunctive relief or a decree for specific performance, and such other relief as may be proper (including monetary damages if appropriate). 
   9. The arbitrator shall issue the arbitration award in writing, setting forth the reasons for the arbitrator’s decision. The decision of the arbitrator shall be final and binding upon the Parties, and a judgment upon the decision rendered by the arbitrator may be entered in any court of competent jurisdiction. 
   10. EXCEPT AS PROVIDED HEREIN, THE PARTIES EACH WAIVE ANY RIGHT TO FILE A LAWSUIT, HAVE A TRIAL BY JURY, OR RESOLVE SUCH A DISPUTE   IN ANY OTHER FORUM.  THE PARTIES UNDERSTAND AND AGREE THAT THE ONLY REMEDY FOR ANY DISPUTE COVERED BY THIS PARAGRAPH SHALL BE THROUGH BINDING ARBITRATION, AND THAT THEY CANNOT PROCEED WITH SUCH A DISPUTE IN COURT OR ANY SIMILAR FORUM.  
   11. If Client breaches any term of this Agreement, Company may engage the services of an attorney(s) to protect Company’s right hereunder, and in the event of such engagement following any breach by Client, Client must pay Company’s reasonable attorneys’ fees and expenses incurred by Company, whether or not an action is actually commenced against Client by reason of such breach.
   12. The provisions of this Section 7 must, to the extent applicable in accordance with their terms, continue in full force and effect, notwithstanding the expiration or earlier termination of this Agreement in accordance with the terms of this Agreement.

8. LIMITATIONS OF LIABILITY
   1. Company shall in no be liable to Client in contract, tort, strict liability or cause of actions of any nature for any indirect, special, incidental, punitive, consequential or reliance, loss, damage or expense, including, without limitation, lost profits or loss of use or revenues, whether or not either Party was advised, should have known or was aware of the possibility of such loss, damage, or expense arising out of, or in connection with, any act or omission of Company relating to the subject matter of this agreement, including, without limitation: (i) the services, deliverables and products, or any part thereof.
   2. In no event, regardless of the legal theory advanced, shall Company be liable other than for its gross negligence or willful misconduct, and any such liability shall, to the maximum extent permitted by law, be limited to the amount actually paid by Client under this agreement. Furthermore, under no circumstances shall Company be liable for consequential, incidental, indirect, punitive or special damages (including loss of profits, data, business or goodwill), regardless of the legal theory advanced or of any notice given as to the likelihood of such damages.
   3. Survival.  This entire Section 8 shall survive termination of this Agreement.

9. INDEPENDENT CONTRACTORS
   1. No Employer/EmployeeRelationship. Company (including any and all Company employees, agents, consultants or subcontractors), in performance of this Agreement, is acting as an independent contractor and not as an employee or agent of Client. Nothing in this Agreement is intended to create a relationship of employer-employee, principal-agent or master-servant between the parties to this Agreement.  Each Party shall be solely responsible for the supervision, daily direction and control of its employees and payment of their salaries (including withholding of appropriate payroll taxes), workers’ compensation, disability, health insurance and other benefits. Nothing in this Agreement shall be construed as making either Party the agent of the other Party, as granting to the other Party the right to enter into any contract on behalf of the other Party, or as establishing a partnership, franchise or joint venture between the Parties. Under no circumstances shall the employees of one Party be deemed to be employees of the other Party for any purpose.
   2. No Benefits.  In recognition of Client’s status as an independent contractor, no other benefits shall be offered, and Client shall be responsible for all costs of practice not otherwise addressed in this Agreement.  Client shall not be eligible to participate in any benefits received by the employees of Company as a result of this Agreement or any services delivered by Client for Company from the date of this Agreement forward.  As such, Company shall not be required to furnish, provide for, reimburse, purchase, or pay for any benefits or expenses which are normally associated with an employment relationship with Company, including, but not limited to, medical insurance, life insurance, workers’ compensation and any and all other employee benefits or expenses.
   3. Party Affirmations.  Both Parties individually affirm for each of themselves individually that: (1) Party maintains a separate business with that Party’s own equipment and materials which are neither owned by the other Party nor controlled or used by the other Party; (2) Party holds or has applied for a federal tax identification number or is a sole proprietor and is not required to obtain such identification; (3) Party agrees to perform the Services and each Party controls the means of performing the services; (4) Party is wholly responsible for the satisfactory completion of their respective Services and Obligations;  (5) Party receives compensation for that Party’s services delivered in the manner set forth in this Agreement and not on any other basis; (6) Party performs work that is outside the usual course of the other Party’s business; (7) Party customarily and regularly exercises discretion and independent judgment in the performance of that Party’s services; and (8) Party is free from the direction and control of the other Party.

10. MISCELLANEOUS.
    1. Compliance.  Client shall take reasonable care to observe and comply with all laws, policies, general rules and regulations established by Company and shall comply with the common law and all laws, ordinances, codes and regulations of governmental agencies, (including federal, state, municipal and local governing bodies) applicable to the performance of the work hereunder, including, but not limited to, all provisions of the Occupational Safety and Health Act of 1979 as amended. Client also agrees to adhere to best marketing practices.
    2. Force Majeure. Neither Party shall be deemed in default or otherwise liable for any delay in, or failure of, its performance under this Agreement (other than payment obligations) by reason of any Act of God, fire, natural disaster, accident, riot, act of government, strike or labor dispute, shortage of materials or supplies, failure of transportation or communication or of suppliers of goods or services, or any other cause beyond the reasonable control of such Party. Performance times shall be considered extended for a period of time equivalent to the time lost because of such delay.
    3. Assignment. Client shall not assign their rights, duties or obligations under this Agreement, in whole or in part, without the prior written consent of Company.  Client acknowledges and agrees that Company shall have the right, in Company’s sole discretion, to remove or reassign Company’s employees, agents, consultants or subcontractors who are assigned to provide Company Services. This Agreement shall be binding on and inure to the benefit of the Parties and their respective successor and permitted assigns.
    4. Amendment. This Agreement may not be modified or amended, except in writing signed by Company’s CEO and duly authorized representatives of Client.
    5. Notices. All notices, consents and approvals, including notices of address changes, required or permitted to be given by either Party under this Agreement shall be in writing and shall be deemed given when delivered in person or sent by registered or certified mail or by reputable overnight commercial delivery to Company at the address set forth in the Deal Memo Agreement’s preamble.
    6. Severability. The provisions of this Agreement shall be severable.  If any portion of this Agreement is held to be unlawful or unenforceable, that portion shall not affect any other portion of this Agreement, and the remaining terms and conditions or portions will remain in effect.
    7. Waiver of Breach. Waiver of a breach of any provision of this Agreement shall not be deemed a waiver of any other breach of the same or a different provision.
    8. Entire Agreement. This Agreement, including the Exhibits attached hereto, contains the entire agreement between Company and Client regarding the engagement and supersedes all prior oral, written or electronic communications between the parties concerning the subject matter thereof. 
    9. Knowing Agreement. The Parties have read the foregoing Agreement, know its contents and fully understand it.  The Parties further acknowledge that they have been given the opportunity to consult with their own independent legal counsel with respect to the matters referenced in this Agreement.  
    10. Interpretation.  Neither Party will be deemed the drafter of this Agreement despite the possibility that one Party or its representatives may have prepared the initial draft or played a greater role in the preparation of subsequent drafts. In construing this Agreement, no provision will be construed in favor of one Party on the ground that such provision was drafted by the other Party. If any claim is made by a Party relating to any conflict, omission, or ambiguity in the provisions of this Agreement, no presumption, burden of proof, or persuasion will be implied because this Agreement was prepared by or at the request of either Party or its counsel.
    11. Headings. The section and other headings contained in the Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
    12. Execution of this Agreement in Counterparts. This Agreement may be executed electronically in two or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.