First Columbia Development Corp. - Exhibit 10.4 - Filed by newsfilecorp.com






MARKETING SERVICES AGREEMENT

            THIS
MARKETING SERVICES AGREEMENT (this “Agreement”) is
entered into as of the 5th day of August, 2019 (the "Effective
Date"), between Critical Mass Industries LLC, a Colorado limited
liability company (“Company”), and Good Holdco LLC, a Colorado
limited liability (“Contractor”). Company and Contractor are
sometimes hereinafter referred to singularly as a “Party,” and
collectively as the “Parties.”

            WHEREAS,
Company is a licensed marijuana business operating pursuant to licenses duly
issued by the Colorado Department of Revenue Marijuana Enforcement Division
(“MED”) and applicable local licensing authority; and

            WHEREAS,
because of the experiences and abilities of Contractor, Company wishes to retain
Contractor to perform those services (collectively, the
“Services”) specifically described in Exhibit A
attached hereto and incorporated herein by this reference, and Contractor wishes
to perform the Services for Company on the terms and conditions contained in
this Agreement. 

            NOW,
THEREFORE, in consideration of the mutual promises, covenants and
undertakings cited herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:

           
1.      Work To Be Performed. 

               
     (a)       
Contractor will provide the Services to the best of its abilities. Contractor
may accept additional assignments from Company at Contractor’s sole discretion;
such additional assignments shall be incorporated into Exhibit A.
Company may assign other contractors to perform services similar to the
Services. Contractor shall not perform any work for Company except pursuant to
this Agreement or a subsequent written agreement. 

               
     (b)       
Except as otherwise specifically set forth herein, Contractor shall provide at
its own cost and expense all of the materials and equipment necessary for
Contractor to perform the Services. Company shall have no control or supervision
over the hours worked or the manner in which Contractor performs the work;
provided, however, that Company may specify deadlines by which time certain work
needs to be completed.

               
     (c)       
Contractor acknowledges that Contractor has no authority to negotiate any
contract for or on behalf of Company or to bind Company to any contract,
agreement, representation or understanding concerning Company or Company’s
products or services.

            2.      Compensation
of Contractor.

               
     (a)       
Amount. The Company shall compensate Contractor for performance of
the Services at a flat rate of Fifty Thousand Dollars ($50,000.00) per month, as
shown on invoices delivered to the Company in accordance with Section 2(b),
below. Contractor shall bill the Company only for the Services and reimbursable
expenses as set forth below.




                    
(b)        Payment. Contractor
shall invoice the Company on a monthly basis for the Services provided and
reimbursable expenses incurred during such period. Payment shall be due within
thirty (30) days after Company's receipt of an invoice.

               
     (c)       
Expenses; No Additional Compensation. Any expenses incurred by
Contractor in the performance of the Services shall be the sole responsibility
of Contractor unless Company gives prior written approval of reimbursement of
the expense. Contractor acknowledges that Contractor shall be responsible for
paying all operating expenses it incurs pursuant to this Agreement, subject to
the preceding sentence. Contractor will receive only the compensation described
in this Agreement, and shall not receive any other form of compensation,
benefits, or commission. 

            3.      Independent
Contractor Status. 

               
     (a)       
Contractor’s status shall at all times be that of an independent contractor.
Contractor will not be an employee of Company for tax reasons or any other
purpose. Contractor will not be entitled to unemployment compensation
insurance benefits or worker’s compensation unless some entity other than
Company provides such coverage. Contractor is aware, and acknowledges
and agrees, that Company undertakes no responsibility for withholding Federal
and State income taxes, F.I.C.A., worker’s compensation insurance, unemployment
compensation insurance or the like for Contractor or any of its agents,
subcontractors or their agents or employees, all of which shall remain the
complete responsibility of Contractor. Contractor assumes full
responsibility for the payment of all contributions, payroll taxes, income
taxes, self employment taxes, withholdings and backup withholdings or
assessments under state and federal law. Company shall only provide
Contractor with, and shall file, an IRS Form 1099 on an annual basis. 

               
     (b)       
Contractor will be solely liable and responsible for compliance with all
federal, state and local laws and regulations regarding (i) the payment of
Contractor’s taxes; (ii) maintenance of workers’ compensation insurance; (iii)
filing of all required reports; and (iv) health, safety, and all other
employment matters. 

               
     (c)       
Nothing herein shall be construed to create a relationship between Company and
Contractor in the nature of profit-sharing, company, joint venture,
principal/agent, employment or any other relationship that might impose
liability on Company for Contractor’s past, present or future debts,
liabilities, obligations, acts or omissions. 

            4.       
Agreement to Not Disclose Confidential Information.

               
     (a)       
Access to Confidential Information. Contractor acknowledges that
by virtue of Contractor's performing the Services for Company, Contractor will
have access to and will acquire Confidential Information (as defined below)
relating to the business and operations of the Company. 

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(b)        Definition of
Confidential Information.

                                 (i)       
Regardless of whether tangible or intangible, how stored, compiled, or
memorialized, whether physically, electronically, graphically, photographically,
in writing or by some other means, and regardless of whether it has been marked
or identified as “confidential”, the term “Confidential
Information” means and includes any and all of the following provided
by, belonging to or concerning the Company: (I) information, data, ideas,
inventions, intellectual property, processes, materials, know-how, techniques,
technologies, sketches, drawings, specifications, concepts, trade secrets,
research and development activities, patent applications, compilations, devices,
formulae, designs, prototypes, methods, procedures, strategies, programs, and
codes; (II) financial, business, strategic, scientific, technical and economic
information, plans, and sales, marketing and product information; (III) data and
information about the Company’s current, former or prospective customers,
suppliers, officers, directors and employees; (IV) copies or materials embodying
or including any of the foregoing and any analyses, studies or reports that
contain, are based on, or reflect any of the foregoing; and (V) any information
traditionally or otherwise appropriately recognized as proprietary or a trade
secret. Confidential Information does not include information that (A) at the
time of disclosure by Company to Contractor, was published or known publicly or
was otherwise in the public domain, (B) after disclosure by Company to
Contractor, is published or becomes publicly known or otherwise in the public
domain other than as a result of a breach of this Agreement, (C) was disclosed
to Contractor in good faith by a third party who was not, and is not, under any
obligation of confidence or secrecy to Company, or its clients or prospective
clients at the time of such disclosure or (D) is independently developed by the
Contractor without the use of any Confidential Information and without violation
of this Agreement.

                                 (ii)       
Contractor acknowledges that (A) the Confidential Information is the sole
property of Company, (B) disclosure thereof would cause substantial loss to the
goodwill of Company, (C) disclosure thereof is being made by Company only
because of the position of trust and confidence which Contractor will occupy and
because of the agreement of Contractor to the restrictions contained herein, (D)
the knowledge of Contractor of these matters would enable Contractor, upon
termination of this Agreement, to compete with Company in a manner likely to
cause Company irreparable harm, and (E) disclosure of such matters by Contractor
would likewise cause such harm. 

                     (c)       
Restrictions on Use and Disclosure of Confidential Information.
Contractor shall hold all Confidential Information as a fiduciary, in strict
confidence and trust for the benefit of Company. Contractor shall not at any
time during the term of this Agreement or thereafter use, make known, or
disclose, either directly or indirectly, intentionally or negligently, any of
the Confidential Information to any person, company or other entity, for any
purpose or reason, other than as required in the performance of the Services.
Contractor understands that it is not allowed to use, sell, license, market or
otherwise exploit any products or services which embody in whole or in part any
Confidential Information. Except as necessary to perform Contractor's duties and
responsibilities under this Agreement, Contractor shall not copy or duplicate
any of the Confidential Information, nor remove any of the Confidential
Information from the facilities of Company, either during the term of this
Agreement or thereafter. Contractor will take all reasonable precautions to
prevent disclosure of the Confidential Information to unauthorized persons or
entities. Contractor will treat as confidential and proprietary any information
or materials from outside Company which Company is obligated to treat as
confidential or proprietary, in accordance with Company’s reasonable
instructions to Contractor. In the event that any unauthorized disclosure of any
Confidential Information shall occur as a result of Contractor’s actions or
inactions, or the actions or inactions of an agent of Contractor, Contractor
shall immediately notify Company in writing of the disclosure and the
circumstances surrounding such disclosure. 

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     (d)       
Delivery of Confidential Information to Company on Termination.
Upon the expiration or termination of this Agreement, or at any time upon
Company's request, Contractor will deliver to Company all tangible materials
embodying the Confidential Information, including without limitation any
documentation, records, listings, notes, data, sketches, drawings, customer
lists, memoranda, models, data, reference materials, samples, human or
machine-readable media and equipment and any other materials which in any way
relate to the Confidential Information, to the Services, or to the customers of
the Company. Contractor will not to retain any copies of any of the above
materials. Contractor will provide to Company written certification of
compliance with this Section 4(d) upon request. 

               
     (e)       
Reasonable Restrictions. Contractor acknowledges that the
restrictions in this Section 4 are reasonable and reflect an appropriate
balancing of the interests of Company and Contractor. 

            5.      Term;
Termination. This Agreement shall terminate on the date that is two (2)
years after the Effective Date. Either Party may terminate this Agreement at any
time for any reason or no reason, with or without cause, upon written notice to
the other Party. The right of termination in this Agreement is absolute.
Contractor waives any claim to the contrary and releases Company from any claim
to damages, compensation or indemnification arising out of or relating to the
termination of this business relationship.

            6.      Transfer
of Contractor’s Duties; Return of Property upon Termination. Upon
termination of the relationship established by this Agreement, and in the event
that the Services have not been fully performed at the time of termination,
Contractor shall reasonably assist Company in the smooth transition of
Contractor’s duties and responsibilities to another contractor or representative
of Company. Contractor shall also, upon termination, immediately return to
Company all property in Contractor’s possession belonging to Company. In the
event that Contractor does not return all Company property upon termination of
the relationship with Company established by this Agreement, Company may reduce
any payments owed to Contractor under this Agreement by the value of any
property not returned. In addition, Company may take all appropriate action to
recover its property (or the value of its property). 

            7.      Reservation
of Rights. Company reserves and retains all rights, including, without
limitation, the right to hire additional independent contractors to perform
similar work to Contractor. Company shall manage its business according to its
own judgment and shall be free to accept or reject any advice or suggestions of
Contractor at any time in its sole discretion. Contractor shall provide the
Services in an advisory capacity only and the Company shall retain full
authority and responsibility for all decisions with respect to operation of the
Company's business. Each Party acknowledges and agrees that nothing in this
Agreement shall require the other Party to take any action that such Party
reasonably determines will, or could be deemed to, violate any laws or regulations. Neither Party shall be
responsible for any violation of the other Party’s rights hereunder by a third
party.

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            8.    
 Indemnification and Non-Infringement.

               
     (a)       
Contractor Indemnification. Contractor shall indemnify, defend and
hold Company and its subcontractors, independent contractors, agents, officers,
shareholders, directors, members, managers and employees harmless from and
against any and all claims, liabilities, losses, damages, expenses (including
reasonable attorneys’ fees) (collectively, “Claims”) arising from
or growing out of (i) a breach of any representation, warranty, covenant or
agreement made by Contractor in connection with this Agreement, or (ii)
Contractor’s gross negligence or willful misconduct. 

               
     (b)       
Non-Infringement Warranty. Contractor warrants and represents, to
the best of its knowledge and belief and solely for the benefit of Company, that
nothing in this Agreement or the performance of it by Contractor infringes any
United States intellectual property right or any contractual covenant entered
into by Contractor benefiting any third party. 

            9.     
Compliance with Laws. Each Party shall be responsible for
obtaining any and all licenses, registrations, permits or approvals necessary or
advisable for the operation of its business and the provision of the Services.
Each Party shall comply with any and all conditions binding on it in any such
licenses, registrations, permits or approvals. Each Party shall be subject to,
and comply with, all laws, orders, regulations, directions, or requests, present
and future, of any state or local government having jurisdiction over such
Party, including without limitation, the Colorado Medical Marijuana Code (C.R.S.
§ 12-43.3 -101 et. seq.), the Colorado Retail Marijuana Code (C.R.S. § 12-43.4
-101 et. seq.) and all regulations, rules, orders, guidance and instructions
promulgated by the MED or applicable local marijuana business licensing
authority. 

            10.   
Representations and Warranties. Contractor hereby represents and
warrants to Company that:

               
     (a)       
Contractor is solely responsible for the satisfactory completion of the Services
and is liable to Company for a failure to complete the Services. 

                    
(b)        Contractor may realize a profit or
a loss under this Agreement. 

                    
(c)        Contractor has continuing or
recurring business liabilities and obligations. 

                    
(d)        Contractor has registered with
applicable state agencies. 

                    
(e)        Contractor maintains its own set
of books and records for its business. 

            11.   
Liability Insurance. Contractor will supply its own workmen’s
compensation insurance and errors and omissions insurance coverage, which shall
be in amounts and with insurance companies reasonably acceptable to Company, and
will provide proof of such coverage to Company upon request. 

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            12.   
Assignment. Contractor may not assign or delegate any of its
rights or obligations under this Agreement without the prior written consent of
Company. Company may assign this Agreement at its sole discretion by providing
written notice to Contractor. 

            13.   
Successors and Assigns. The provisions of this Agreement shall
inure to the benefit of, and be binding on, the Parties and their successors,
permitted assigns, legal representatives, heirs, distributees, and transferees.


            14.   
Notices. All notices, demands and other communications to be sent
by one Party to the other under this Agreement shall be in writing and shall be
deemed to have been validly made, given, served and received if given or served
by delivery in person to the addressee, or if sent by facsimile during normal
business hours with delivery verification, or three (3) days after deposit in
the United States mail, postage prepaid, registered or certified mail, return
receipt requested, addressed as follows:

	 	If to Company: 	Good Holdco LLC 
	 	  	866 Navajo Street 
	 	  	Denver, Colorado 80204 
	 	  	Attention: John Knapp 
	 	  	  
	 	If to Contractor: 	Critical Mass, Inc. 
	 	  	866 Navajo Street 
	 	  	Denver, Colorado 80204 
	 	  	Attention: John Knapp 


            15.   
Entire Agreement. This Agreement is the final integration of the
agreement between the Parties with respect to the matters covered by it and
supersedes any prior understandings or agreements, oral or written, with respect
thereto. 

            16.   
Modification, Waiver. This Agreement may not be modified or
supplemented except by written instrument signed by the Parties. No action or
failure to act by either Party shall be deemed to be a waiver of any default or
breach of any agreement or provision herein contained unless such waiver is set
forth in writing. No waiver of any default or breach of any agreement or
provision herein contained shall be deemed a waiver of any other default or
breach thereof or of any other agreement or provision herein contained.

            17.   
Severability. If any provision of this Agreement shall be held to
be invalid or unenforceable for any reason: (i) such invalidity or
unenforceability shall not affect any other provision of this Agreement, (ii)
the remaining terms, covenants and conditions hereof shall remain in full force
and effect and (iii) any court of competent jurisdiction may so modify the
objectionable provision as to make it valid and enforceable.

            18.   
Governing Law, Jurisdiction and Venue. This Agreement shall be
governed by and construed in accordance with the laws of the State of Colorado
applicable to contracts to be performed entirely within such state. The District
Court for the City and County of Denver shall have exclusive jurisdiction,
including in personam jurisdiction, and shall be the exclusive venue for
any and all controversies and claims arising out of or relating to this
Agreement. 

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            19.   
Captions. All captions, titles, headings, and divisions hereof are
for purposes of convenience and reference only, and shall not be construed to
limit or affect the interpretation of this Agreement. 

            20.   
Legal Representation and Construction of Agreement. The Parties
have had the opportunity to retain independent legal and financial counsel with
respect to the negotiation of this Agreement. The Parties have independently,
separately, and freely negotiated each and every provision of this Agreement as
if all Parties drafted it, and therefore, waive any statutory or common-law
presumption that would serve to have this document construed in favor of, or
against, any Party. 

            21.  
 Counterparts/Electronic Signatures. This Agreement may be
executed in one or more counterparts, all of which taken together shall
constitute one instrument. A facsimile or other electronic copy of a signature
on this Agreement shall be acceptable as and deemed to be an original signature.


[Remainder of page intentionally left blank. Signature page
follows.]

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            IN
WITNESS WHEREOF, the Company and Contractor have executed this Agreement
effective as of the date first above written. 

COMPANY:

Critical Mass Industries LLC,
a Colorado limited liability
company


By: ______________________________________________
Name:
John Knapp
Title: President


 

CONTRACTOR:

GOOD HOLDCO LLC

By: ______________________________________________
Name:
John Knapp
Title: President


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EXHIBIT A

DESCRIPTION OF SERVICES 

	Marketing services. 


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