OneTraction global aCCELERATOR – Program
Terms of Services Agreement
FOR VALUE RECEIVED, Customer named in the submitted application form is an enrolled applicant for any of the three Accelerator Program which start on the date of submitted application, (the “Founder”), on behalf of startup doing business as listed on the application form and through the domain name registrar (the “Company”), hereby certifies that Twingco Inc. doing business as OneTraction.com, OneTraction.co, OneTraction.vc or its registered assignees (the “Holder”), are entitled, subject to the terms set forth herein, to receive and the company agrees to pay Holder for services received as a portfolio company. The Company will pay Holder with a warrant for program access fee (the “Fee”), plus success fee (the “Incentive”) as described below. Additional services may be available to the Company as a custom solution option, and payable upon the agreed upon statement of work (SOW).
For value received through the program various services and subject to the terms set forth herein, Company agrees to incorporate “if not incorporated already” as Delaware C Corporation within 60 days and pay (the “Fee”) by issuing a warrant, or similar security within 90 days from the application submission date or upon request, using OneTraction’s provided form in substantially the COMMON Stock Warrant form attached as (a “Warrant”), to purchase two percent (2%) of the capital stock or equity interests of the Company as measured immediately prior to the sale and issuance of the Company’s shares of capital stock or equity interests in a future bona fide equity financing that results in an aggregate purchase price paid to the Company by investors that are not related to or otherwise affiliated with the Company’s founders of not less than $1,000,000 (a “Qualified Financing”), at an exercise price per share equal to the price per share of capital stock or equity interests initially issued and sold by the Company. The Warrant shall have the rights provided below, including net exercise rights, anti-dilution protection, transfer rights, information rights, rights of first refusal and auto-conversion provision. The Company agrees to make representations and warranties as provided in the Warrant. Company would receive, subject to Holder or its affiliates investment arm members, an investment of a minimum of $100,000 in the Company and/or facilitating an introduction to an investment affiliate of the Holder who makes a minimum investment in Company of at least $250,000 through a convertible note to be issued contingent on the company performance, graduation from the program within 60 days from today’s date, traction gained and decision to invest at investor’s discretion any time post-graduation. Additionally, Company agrees to pay Holder (the “Incentive”) 25% of revenues earned by the Company through the Holder’s introduction to clients and partners for 36 months from the date of submission. “Such amount will be due within ten days upon the Company receipt of payment from clients or partners introduced by the Holder”. Revenues include products or services sales, technology and IP licensing and any other activities that earn Company revenues.
Multiple Development Acknowledgements. The Company acknowledges that Holder and its affiliates, mentors and employees either are or are employed by professional development firms (collectively, the “OneTraction Tech Labs”), and as such develop in numerous portfolio companies, some of which may be competitive with the Company's business. No OneTraction Affiliate shall be liable to the Company for any claim arising out of, or based upon, (i) the development by a OneTraction Affiliate in any business entity competitive to the Company, or (ii) actions taken by any partner, officer or other representative of any OneTraction Affiliate to assist any such competitive company, whether or not such action was taken as a board member of such competitive company, or otherwise, and whether or not such action has a detrimental effect on the Company.
Twingco, Inc. - COMMON Stock Warrant
Warrant Date of Issuance: as shown on the applicant form submitted: http://onetraction.co/Innovate.html. Void After: 10 years from the issuance date
FOR VALUE RECEIVED, Customer named in the application form submission the “founder” of and doing business as listed on the application form, a Delaware pre-incorporated business (together with the Founder, the “Company”), hereby certifies that Twingco Inc doing business as OneTraction.co, or its registered assigns (the “Holder”), is entitled, subject to the terms set forth herein, to purchase from the Company, at any time after 90 days or before the Expiration Date (as defined in Section 6) the Number of fully paid and non-assessable shares of Common Stock of the Company (the “Warrant Stock”) at a price of $0.0001 per share (subject to adjustment as provided herein) (the “Purchase Price”).
For purposes of this Warrant:
“Convertible Securities” means evidence of indebtedness, shares of stock or other securities which are convertible into or exchangeable for, with or without payment of additional consideration, shares of Common Stock, either immediately or upon the arrival of a specified date or the happening of a specified event or both.
“Fully Diluted Capitalization” means, as of any date, without duplication: (i) all shares of Common Stock that are outstanding as of such date, plus (ii) all shares of Common Stock issuable upon conversion of Convertible Securities outstanding as of such date, whether or not convertible as of such date, plus (iii) all shares of Common Stock issuable upon exercise of Options outstanding as of such date, whether or not such Options are exercisable as of such date (assuming for this purpose that Convertible Securities acquirable upon exercise of any such Options are converted into Common Stock as of such date), plus (iv) all shares of Common Stock issuable with respect to Options reserved for issuance but not granted as of such date pursuant to the Company’s employee stock option plan(s) then in effect, plus (v) all shares of Common Stock issuable upon exercise of this Warrant as of such date.
“Number” means, the number of shares of Common Stock that is equal to two percent (2.00%) of the Fully Diluted Capitalization as of immediately prior to the sale and issuance of the Company’s capital stock in a future bona fide equity financing that results in an aggregate purchase price paid to the Company by investors that are not related to or otherwise affiliated with the Company’s founders of not less than $1,000,000 (a “Qualified Financing”). For purposes of this Agreement, a Qualified Financing may be comprised of separate closings, provided that the terms upon which the Company sells capital stock in each such closing are identical. For the avoidance of doubt, Holder shall be entitled to the anti-dilution protection set forth in the previous sentence during the period set forth therein in connection with, without duplication, (a) the issuance of additional shares of capital stock, (b) the issuance of options, warrants, convertible securities and other rights to acquire capital stock and (c) the reservation for issuance of any shares of capital stock under the Company’s equity incentive plans, including any shares reserved on a “pre-money” basis in connection with a Qualified Financing, but shall not be entitled to such anti-dilution protection in connection with the issuance of the Company’s capital stock in a Qualified Financing.
“Option” means any right, warrant or option to subscribe or purchase shares of Common Stock or Convertible Securities.
(a) Delivery to Holder. As soon as practicable after the exercise of this Warrant in whole or in part, and in any event within ten (10) days thereafter, the Company, at its expense, will cause to be issued in the name of, and delivered to, the Holder or such party as the Holder may direct (upon the Holder’s payment of any applicable transfer taxes):
(i) a certificate or certificates for the number of shares of Warrant Stock to which the Holder or such party shall be entitled; and
(ii) in case such exercise is in part only, a new warrant or warrants (dated the date hereof) of like tenor, calling in the aggregate on the face or faces thereof for the number of shares of Warrant Stock equal (without giving effect to any adjustment therein) to the number of such shares called for on the face of this Warrant minus the number of such shares purchased by the Holder upon such exercise as provided in Sections 1(a) or 1(c).
(b) Compliance with Securities Laws.
(i) The Holder, by acceptance hereof, acknowledges that this Warrant and the Warrant Stock are being acquired solely for the Holder's own account and not as a nominee for any other party, and for investment, and that the Holder will not offer, sell or otherwise dispose of this Warrant or any of the Warrant Stock except under circumstances that will not result in a violation of the Act or any state securities laws. Upon exercise of this Warrant, the Holder shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the Warrant Stock so purchased is being acquired solely for the Holder's own account and not as a nominee for any other party, for investment; and not with a view toward distribution or resale in violation of the Act.
(ii) This Warrant and the Warrant Stock issued upon exercise hereof shall be stamped or imprinted with a legend in substantially the following form (in addition to any legend required by state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES AND ANY SECURITIES ISSUED HEREUNDER OR THEREUNDER MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER THE ACT AND APPLICABLE LAWS.
(c) Capitalization. The Company’s capitalization table attached hereto as Schedule 1 is true and complete as of the Issue Date. The Company shall update Schedule 1 by providing a capitalization table with the Fully Diluted Capitalization as of immediately prior to the sale and issuance of the Company’s capital stock in Qualified Financing that is true and complete as of immediately prior to the Qualified Financing.
2. Advisor Indemnification. Since Holder and its affiliates will be acting on behalf of the Company in providing guidance and advice as part of the OneTraction Accelerator Program, the Company agrees to the indemnity provisions and other matters set forth in Exhibit A which is incorporated by reference into this Agreement. The terms and provisions of Exhibit A shall survive any termination or expiration of this Agreement.
3. No Impairment. The Company will not, by amendment of its organizational documents or through reorganization, consolidation, merger, dissolution, sale of assets or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this agreement, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the Holder’s rights against impairment.
4. Attorneys’ Fees. In the event of any dispute between the parties concerning this Agreement, the party prevailing in such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys' fees.
5. Enforcement. The Company stipulates that the Holder’s remedies at law in the event of any default or threatened default by the Company hereof are not and will not be adequate to the fullest extent permitted by law, and that such terms may be specifically enforced by a decree for the specific performance of any agreement contained herein or by an injunction against a violation of any of the terms.
6. Non-Disparagement. Company shall not at any time make any statement, written or oral, that disparages any of the Holder or Holder’s affiliates, Management, or agents, or is likely to be harmful to the goodwill, reputation, or business standing of any of the Holder or Holder’s affiliates, Management, mentors, investors, or agents, provided that he may respond accurately and fully to any question, inquiry or request for information when required by legal process. Additionally Company should not use the Holder name or its officers’, mentors’, employees’ and partners’ names for any advertising, blogging, private forum, social networking or news release without written approval from the Holder representative.
7. Dispute Resolution.: It is the intent of the parties hereto that all questions with respect to the construction of this Agreement and the rights, duties, obligations and liabilities of the parties shall be determined in accordance with the applicable provisions of the laws of the State of Delaware and California. Company agrees to resolve all disputes by binding arbitration before the American Arbitration Association or California State Bar Arbitration Program.
8. Confidentiality. Company shall use the confidential information solely for the limited purpose of performing the business of the Company and not for any other use or purpose. Company acknowledges that all Holder’s information is considered proprietary and confidential information that has independent economic value, actual or potential, from not being generally known to the public or other persons or entities who can obtain economic value from its disclosure or use. Company shall maintain each and all of the confidential information as strictly confidential under all circumstances from the day of disclosure and forever thereafter. Company shall not disclose or cause the disclosure of any of the confidential information to any third person or entity for any purpose at any time other than the business of the Company and shall undertake all steps reasonably necessary to prevent such disclosure. Company shall segregate and store securely all materials and devices that contain or evidence confidential information, and shall use the same degree of care that it affords his own confidential information, but no less than a reasonable degree of care, to maintain the confidentiality of such materials, devices, including but not limited to network access.
9. No-Refund: all partial or full payment received are considered final and no refund is allowed under any circumstance. Customer agree that in the case where no further communication or content is received by OneTracton.com within 10 business days from the order payment date, we consider that customer abandoned their project and our work would be considered complete, and no-refund is allowed for work/services/program started or not-started by the customers/startup founders.
10. Intellectual Property: Startup or founder owning the project will retain all rights to the intellectual property developed as part of this engagement. OneTaction will keep each startup project as confidential.
(a) Governing Law; Venue. This agreement shall be governed by the laws of the State of California, without giving effect to principles of conflicts of law. For purposes of litigating any dispute that may arise directly or indirectly from this Agreement, the parties hereby submit and consent to the exclusive jurisdiction of the State of California and agree that any such litigation shall be conducted only in the courts of the State of California or the federal courts of the United States located in the State of California and no other courts.
(b) Entire Agreement. This Agreement sets forth the parties’ entire agreement relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings and agreements, whether oral or written, between them relating thereto.
(c) Amendments and Waivers. No modification of or amendment to this agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the Company and the Holder. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance.
(d) Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties.
(e) Notices. All notices and other communications hereunder shall be in writing and shall be personally delivered or sent by a recognized overnight delivery service, certified mail, postage prepaid, return receipt requested, to a party at its address on the signature page hereof. All notices shall be deemed to have been properly given (i) if served in person, upon acceptance or refusal of delivery; (ii) if mailed by certified mail, postage prepaid, on the third (3rd) day following the day such notice is deposited in any post office station or letter box; (iii) if sent by recognized overnight delivery service, on the first (1st) day following the day such notice is delivered to such carrier; or (iv) if sent by facsimile, upon receipt. A party may change its address for notices hereunder by giving the other party a notice in the foregoing manner.
(f) Severability. If any provision of this agreement is held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. If the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of this Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of this Agreement shall be enforceable in accordance with its terms.
(g) Construction. This agreement is the result of negotiations between and has been reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against either of the parties hereto.
(h) Counterparts. This agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the same instrument, including the public version listed on the application submission form as a link to our terms of service http://onetraction.com/Innovate.html
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.
(Company detailed info as submitted in the Application to join our Program)
Name: signed as listed on the submission form: http://onetraction.com/Innovate.html
Name/Address: as listed on the submission form: http://onetraction.com/Innovate.html.
Twingco inc, dba OneTraction.co
The Company will indemnify and hold harmless Holder and its affiliates, partners, directors, agents, employees, contractors, consultants, investors, clients, controlling persons, and mentors, as well as any other participants in the OneTraction Accelerator Program (each and “Indemnified Person”) against any and all losses, claims, damages or liabilities in connection with or as a result of any act, error or omission by an Indemnified Person in connection with any guidance or advice related or offered to the Company by an Indemnified Person. If for any reason the foregoing indemnification is unavailable to an Indemnified Person or Persons or insufficient to hold an Indemnified Person or Persons harmless, then the Company shall contribute to the amount paid or payable by the Indemnified Person or Persons as a result of such loss, claim, damage or liability (i) in such proportion as is appropriate to reflect the relative economic interests of the Company and its stockholders on the one hand and the Indemnified Person or Persons on the other hand in the matters contemplated by the Agreement, and (ii) only if the allocation provided for in clause (i) is held unenforceable, in such proportion as is appropriate to reflect (i) as well as the relative fault of the Company on the one hand and the Indemnified Person or Persons on the other hand with respect to such loss, claim, damage or liability, and any other relevant equitable considerations.
The reimbursement, indemnity and contribution obligations of the Company under the foregoing paragraph shall be in addition to any liability which the Company may otherwise have. The Indemnified Persons other than Holder shall be deemed third party beneficiaries to this Agreement. The Company will not, without the prior written consent of Holder, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by the Agreement (whether or not any Indemnified Person is a party thereto) unless such settlement, compromise or consent includes an unconditional release of Holder and each other Indemnified Person from all liability arising or that may arise out of such claim, action or proceeding.
Capitalized terms not otherwise defined herein shall have the meanings given to them in the Agreement.
The provisions of this Exhibit A shall survive any termination of the agreement.
If Company abandon the program, get dismissed or fail to graduate, the warrant obligation will stay enforceable for 10 years, but will be voided if the Company accept any future investment from the Holder or pay the Program fee (the “Fee”) for a cash price of fifty thousand $50,000 within 90 days of the initial submitted application to join the program.