Noumena CFO Grow Services Agreement
This Noumena CFO Grow Services Agreement (this “Agreement”) is by and between you individually or, if your business is a separate legal entity, such entity and Noumena Partners, LLC, a Delaware limited liability company (“Noumena,” “we,” or “us”). By subscribing to our CFO Grow services, you agree that the terms and conditions of this Agreement shall govern your subscription and use of the services, and if your business is a separate legal entity, you represent that you have the authority to enter this Agreement on behalf of such entity.
1. Our CFO Grow Services.
1.1. Description of the Services. Our CFO GrowSM services (the “services”) are designed to provide you useful consulting and support to help you operate your business and, in large part, are dependent on the business details, plans and goals that you disclose in our interactions with you. You represent and warrant to us that when you, or others on behalf of your business, provide us with information, it will be true, accurate and complete. The services include the following:
Primary contact with a seasoned business support individual (“your services leader”). Your services leader will get to know your business and be available to provide feedback in support of your business operations. Feedback support may involve a range of topics, depending on the stage and goals of your business, and may include: early stage objectives and key elements to getting your business started; business planning; human resources; client development and relations; service delivery and management; and financial resources and position. Your services leader will involve other Noumena resources as appropriate to your business needs and within the scope of the services.
An Initial Business Model. Once we get to know your business, your services leader will work with you and other Noumena resources to prepare and deliver to you a business model of useful information that is customized to your business. The business model will contain a multifaceted view of information and suggestions for you to consider in order to advance your business in the direction you choose.
Business Planning Support. In the course of the services, your business needs will constantly change and we want to be available to help you. We are ready to provide consultation and feedback on the issues affecting your current operations and future objectives. This component of the services will include guidance and feedback to help you document a reasonable business plan with milestones in order to achieve your business goals.
Regularly Scheduled Check-ins. Your services leader will coordinate with you to maintain regular interactions to monitor your progress in achieving your business goals and to provide additional active feedback in a dynamic environment.
Information for You to Access Other Service Providers. In the course of our business, we encounter many resources that may be valuable to your business, ranging from professional advisors across various specialties, to service providers to small businesses, to resources that may fit your financial needs. As part of the services, we may provide contact and other information about these third-party resources; however, you are solely responsible for due diligence, evaluation, and possible selection of any of these resources, including whether the third-party’s services and costs are suitable for your needs. Noumena makes no representation or warranty regarding any third-party service provider communicated or referred to you, and you acknowledge that Noumena may maintain, now and/or in the future, independent relationships any such third-parties.
We may change the components, nature, features and/or content of the services, or suspend or terminate the services, at any time, and if we do so, we will provide notice of such events to current subscribers.
1.2. Disclaimers About the Services. Please be aware of these important points about the Services:
(a) The services are not a substitute for your day-to-day and long-term management of your business and we do not make decisions about your business.
(b) We and our personnel do not provide legal, tax, accounting, property, or employee benefit advice, and we are not acting as your agent, fiduciary or investment advisor. You agree not to rely on any information we may provide as legal, tax or accounting advice, and in all cases, to seek professionally qualified and licensed advisors in these areas, as applicable.
(c) We and our personnel are independent consultants in providing the services, and the services, including any written deliverables, are provided solely for your internal business use and subject to other limitations in accordance with this Agreement. You agree not to misrepresent Noumena or any of our personnel to any third-party as your officer or employee, including as your “CFO” or “chief financial officer.”
(d) UNLESS SPECIFICALLY PROVIDED HEREIN, AND TO THE FULLEST EXTENT PERMITTED BY LAW, NOUMENA, ITS AFFILIATES, AND LICENSORS MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES (INCLUDING ANY DELIVERABLES), ALL OF WHICH ARE PROVIDED “AS IS.” NO WARRANTY IS MADE THAT THE SERVICES OR RESULTS OF USING THE SERVICES WILL MEET YOUR NEEDS OR EXPECTATIONS; THAT THE SERVICES WILL SATISFY ANY LEGAL OR COMPLIANCE OBLIGATION YOU MAY HAVE, EVEN IF SUCH OBLIGATION IS DISCLOSED TO US; THAT THE SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; THAT ANY PARTICULAR RESULTS MAY OR WILL BE OBTAINED FROM THE SERVICES; OR THAT THE SERVICES WILL BE ACCURATE OR RELIABLE. WE ALSO DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU UNDER APPLICABLE LAW, ANY IMPLIED WARRANTIES ARE LIMITED TO THIRTY (30) DAYS FROM THE DATE OF PURCHASE OR DELIVERY, WHICHEVER IS SOONER.
2. Use and Ownership of Information and Data.
2.1. Your Business Information. In the course of providing the services, we will have access to your business information and data, which may include information and data about your customers. You will continue to own all such information and data that you provide, or make available, to us, provided that you hereby grant and authorize us to retain and make non-exclusive, royalty-free and unlimited use of all such information and data for our business purposes, provided that any such use does not individually identify your customers or your business, which uses may include, without limitation, business analytics, business modeling, product or service improvements, and marketing and advertising. We employ commercially reasonable data security measures designed to protect your business information while in our possession and during our transmission of such information from our facilities.
2.2. Information Related to Our Services. Information we may deliver to you in the course of providing the services belongs to you upon your payment in full for the services and subject to Section 3 below. You agree to employ commercially reasonable security measures to ensure that information we provide to you in connection with the services is not accessed or used for any purpose not permitted by this Agreement. Additionally, in connection with the services, you may provide us with comments and feedback regarding the services, provided that you are under no obligation to do so and any such comments and feedback shall be exclusively owned by us without any compensation or other obligation to you.
2.3. Confidential Information. To the extent that either party discloses information to the other party that is marked, or which would reasonably be considered, confidential (“Confidential Information”), the recipient shall use such information only as permitted under this Agreement and exercise reasonable care in protecting the Confidential Information from unauthorized disclosure. Confidential Information shall not include: publicly available information, information demonstrably received from a third party and not as a result of a breach of a confidentiality obligation, or information demonstrably and independently developed without reference to or incorporation of Confidential Information. Permitted uses of Confidential Information shall include, without limitation: (a) disclosure to employees, agents and affiliates of a party who have a need to know the Confidential Information in the performance of the party’s performance of its obligations under this Agreement, (b) any compelled or required disclosure under law or as a result of a valid legal process, provided that the recipient shall give prompt notice to the disclosing party, if legally permitted, before such disclosure of the disclosing party’s Confidential Information, (c) enforcement by a party of its rights hereunder, and (d) with the disclosing party’s express written permission.
3. Our Intellectual Property. Noumena, for itself, its affiliates and its respective third-party licensors, retains any and all rights, title and interest to all intellectual and proprietary rights that may relate to the services, including without limitation all information, ideas, methods, technology, applications, data, schedules, templates, models, know-how, and trade secrets, whether in existence before the provision of the services or developed during or after the provision of the services.
4. Services Fees and Payment. Our fees for the services, as applicable during any specified period, shall be as disclosed in your subscription form. You are responsible for any applicable sales taxes, which are not included in the service fee disclosed in your subscription. You agree to pay these fees and, if applicable, taxes on time and in the manner agreed with your subscription. Late fees may apply according to the terms included with your subscription.
5. Term and Termination. This Agreement begins on the effective date of your subscription and will continue through the period of your subscription. We reserve the right to terminate the services at any time upon your failure to pay any amount due to us or in the event you breach of any other provision of this Agreement, in which case your obligation to pay for any fees accrued and unpaid at the time of such termination shall be unaffected by the termination. We also may terminate the services at any time for any or no reason, in which case we will refund a prorated portion of prepaid fees if the termination is for other than a breach of this Agreement by you. If you choose for any reason to terminate the services, we will refund only any prepaid fees associated with full calendar months remaining in your subscription, based upon the time we receive your notice of termination; no refund for any partial calendar month will be made. In all cases, terms and conditions under this Agreement that by their nature would continue beyond expiration or termination of this Agreement (including, without limitation, disclaimers, warranties, indemnities, confidentiality requirements, property rights, dispute resolution, and financial obligations) shall survive any such expiration or termination.
6. Assignment. You may not assign any right or delegate any obligation to any third person under this Agreement, except as expressly permitted by this Agreement.
7. Notices. Any notice or communication or delivery of information to you may be addressed by us at the email address and/or physical address last provided by you and reflected in our records and will be deemed made and given when transmitted if sent via email or when delivered according to verified tracking information if sent by a nationally recognized mail/courier service if sent to your physical address. You agree to promptly notify us of any changes to your email address, physical address or phone number.
Notices, communications or delivery of information or documentation shall be sent to us at the following, as may be updated by us upon notice to you:
Noumena Partners, LLC
800 Brickell Avenue
Miami, FL 33131
8. Indemnification. You agree to indemnify and hold harmless Noumena, its affiliates, and each of their respective officers, directors, and agents from and against any and all claims, actions, liabilities, losses, costs, damages, and expenses (including attorneys’ fees) that such indemnified persons may incur as a result of or related to your use of the services, your breach of any provision of this Agreement, the information you provide to us, or your infringement of any third party’s intellectual property rights.
9. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF NOUMENA AND ITS AFFILIATES FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THE SERVICES (INCLUDING ANY DELIVERABLES) AND THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAID FOR THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM. YOU AGREE THAT NOUMENA AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY OF THE FOLLOWING, EVEN IF NOUMENA AND/OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (B) DAMAGES RELATING TO LOSS OF USE, DATA, REVENUES, OR PROFITS. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF NOUMENA AND ITS AFFILIATES AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO OUR DELIVERY AND YOUR USE OF THE SERVICES AND THIS AGREEMENT.
10. Disagreements and Disputes.
10.1 Good-faith Attempt at Resolution. If at any time you or we have a disagreement or dispute concerning any matter, circumstance or event that may arise under or that is related to this Agreement, the concerned party shall notify the other party in writing of the particular disagreement or dispute and engage in active communications in good faith to resolve the concern without further escalation. The parties agree to allow a minimum of 10 business days from the effective time of delivery of the concerned party’s written notice, or a longer period if agreed by both Parties, to reach a resolution.
10.2 AGREEMENT TO ARBITRATE. If the parties are unable to resolve any disagreement or dispute by applying the process described in Section 10.1, the parties agree that any Claim, as defined below, shall be submitted to and resolved on an individual basis by binding arbitration, subject to the Federal Arbitration Act, as may be amended from time to time. Any such arbitration shall be held in Fort Lauderdale, Florida before one arbitrator appointed by and pursuant to the rules of Judicial Arbitration and Mediation Services (“JAMS”). The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules if the amount in controversy exceeds $262,000 (not including interest or attorneys’ fees). Otherwise, the arbitration shall be conducted pursuant to JAMS' Streamlined Arbitration Rules and Procedures. The arbitrator shall be an attorney or retired judge with at least 15 years of legal practice experience in the state in which the arbitration will be held, experienced in contract litigation, and admitted in the state and federal courts of that state. If the arbitration location is more than 100 miles from your location, you may choose to participate in the arbitration by telephone or another available and agreed-upon means of audio or video communication. Judgment on any interim or final award by the arbitrator may be entered and enforced in any court in Fort Lauderdale, Florida and may thereafter be domesticated to any other jurisdiction where a party is located. The parties hereby irrevocably consent and submit to the jurisdiction of any state or federal court in Fort Lauderdale, Florida solely for the purpose of any action brought to enforce an arbitration award hereunder, and the parties waive any and all objections to venue in such courts or the issuance of service of process in any such proceedings. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. No award of indirect, incidental, consequential (including lost income or profits), special or punitive damages, whether arising in contract, tort or by statute, and whether or not the possibility of such damages was disclosed to or could have been reasonably foreseen by either party, will be made by the arbitrator or may be enforced by any court. The limitations of liability contained within this Agreement shall be enforced by the arbitrator. BOTH PARTIES HEREBY WAIVE ANY RIGHT TO HAVE A JURY TRIAL ON ANY CLAIM. BOTH PARTIES HEREBY WAIVE THE RIGHT TO BRING CLAIMS IN A REPRESENTATIVE CAPACITY OR TO PROCEED AS A CLASS OR COLLECTIVE ACTION. These waivers are material inducements for Noumena to enter into this Agreement.
For purposes of this Section 10.2, “Claim” means any claim, dispute or controversy arising out of or relating to (1) this Agreement (including a dispute over the validity, enforceability, arbitrability or scope of this arbitration clause) or any other agreement related to this Agreement; or (2) our provision and/or your use of the services, whether based on statute, contract, tort or any other legal theory; and the terms “we,” “us,” “our,” and, when referring to us, “party” includes our officers, directors, and employees, and our affiliates, subsidiaries, parents, successors and assigns, and any officers, directors, and employees of such entities; provided, however, that “Claim” shall not include any action to obtain equitable remedies for alleged breach of Section 2.3 or Section 3 by a party.
If the foregoing binding agreement to arbitrate is deemed unenforceable or does not apply according to the express terms of this Section 10.2, each of the parties submits to the exclusive jurisdiction of the state or federal courts located in Fort Lauderdale, Florida, in any action or proceeding arising out of, or relating to, this Agreement or the dealings between the parties, agrees that all claims in respect of the action or proceeding may be heard and determined exclusively in these courts and agrees not to bring any action or proceeding arising out of, or relating to, this Agreement or the parties in any other court. Each of the parties waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect thereto. Each party agrees that service of summons and complaint or any other process that might be served in any action or proceeding may be made on such party by sending or delivering a copy of the process to the party to be served at the address of the party and in the manner provided in this Agreement for giving of notices, in addition to any other manner permitted by law. The parties agree that a final judgment in any action so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law.
11. Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of Florida, without regard to its laws regarding conflicts of law. The parties agree that, for all purposes, this Agreement is and shall be deemed to have been entered into, executed and accepted in the State of Florida.
12. Severability. To the extent permitted by applicable law, the parties hereto waive any provision of law which prohibits or renders void or unenforceable any provision hereof. If any part or provision of this Agreement is held to be void or unenforceable, the remainder of this Agreement shall remain valid and enforceable.
13. Entire Agreement. This Agreement represents the entire agreement between you and us regarding its subject matter and supersedes any and all prior or contemporaneous communications, promises and proposals, whether oral, written or electronic.
We may change this Agreement at any time, but in the event any such change is material, we agree to give you advance notice of the change(s), in which case you agree to notify us of any objection to the change(s) within 30 days after we inform you of the change(s). If you timely notify us of an objection to a material change in this Agreement, the Agreement in effect immediately prior to the change(s) will remain in effect. If you enter a new or renewal subscription to the services, as in effect from time to time, the then current version of this Agreement shall apply to the new or renewed subscription.
14. Miscellaneous. The parties acknowledge that there are no third party beneficiaries to this Agreement. Any waiver of a breach or of any requirement of any provision of this Agreement will not be a waiver of any other or subsequent breach or instance of a requirement, whether the same, similar or different subject matter. Failure or delay by either party to enforce any term or condition of this Agreement will not constitute a waiver of such term or condition. Titles and headings in this Agreement are for reference purposes only and shall not affect the interpretation of this Agreement. The terms and conditions of this Agreement shall prevail in the event of any conflict with your subscription form.
15. Privacy Disclosure. This Agreement incorporates by reference our privacy disclosure provided at: https://www.noumena.pro/privacy-disclosure-noumena
THIS AGREEMENT CONTAINS A BINDING ARBITRATION AGREEMENT AND WAIVER OF RIGHT TO TRIAL BY JURY.