instruction:
In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.
question:
Exhibit 10.14 MASTER SERVICES AGREEMENT This Master Services Agreement (the Agreement), dated as of the 5th day of February, 2020 (the Effective Date), is by and between Kubient Inc., with offices located at 330 7th Avenue, 10th Floor, New York, NY 10001 (Kubient) and The Associated Press, a New York not-for-profit corporation with principal place of business located at 200 Liberty Street, New York, NY 10281 (the Customer). Each of Customer and Kubient may be referred to herein individually as a Party and collectively as the Parties. WHEREAS, Customer wishes to increase the revenue derived from its traffic, content, websites, applications, podcasts, audience and database, and would like to retain Kubient to support and assist in that process as described herein; For good and valuable consideration, the receipt of which is acknowledged by each Party, the Parties agree as follows: 1. Kubient Services. The services provided by Kubient pursuant to each specific engagement by Customer (the Service or Services) shall be set forth and detailed in individual exhibits attached hereto (each an Exhibit), which shall be subject to the terms and conditions hereof and be incorporated as part of this Agreement. Kubient shall use reasonable efforts to provide to Customer the Services. Customer agrees to provide all reasonable and necessary access, support and cooperation for Kubient to provide the Services in a timely and effective manner. Nothing herein is intended nor shall be construed as creating an exclusive arrangement between Customer and Kubient. This Agreement will not restrict Customer offering Inventory via other agents or otherwise selling Inventory to any third parties. 2. Kubient License. In the event Customer shall utilize Kubient's ad serving technology as part of the Services, Kubient hereby grants to Customer a limited, royalty-free, non-exclusive, non-transferable, non-assignable, without right of sublicense, revocable license to access, participate in and use to the full extent the Auction Platform as hosted by Kubient, for the purpose of serving Inventory at Target Demand (          ). The Auction Platform will place Creative from the Target Demand with the Winning Bid Price on Google Ad Manager for such Creative to be placed on Customer's websites. 3. Kubient License Definitions. Certain capitalized terms used in this Agreement shall have meanings set forth below. (a) Auction means a real-time auction through the Auction Platform for the placement of Creatives on Customer's websites and applications. (b) Auction Platform means that technology licensed or created by Kubient on which a Registered Bidder may Bid for Inventory. (c) Bid means a price for which a Registered Bidder is willing to pay for Impressions in an Auction via the Auction Platform. (d) Creative means, as applicable: (i) any Digital ad, or Companion ad as defined in the IAB's Portfolio and Guidelines. (e) Impression(s) means the number of times a Creative is served to, and received by, a visitor viewing the Inventory as measured by Kubient. (f) Registered Bidder means a person or entity that executed an agreement with Kubient in order to use the Auction Platform to participate in Auction and to deliver Impressions in Inventory. (g) Request(s) means the data sent from Customer to Kubient that is used in the auction to determine a Bid. (h) Target Demand means the Registered Bidder that has placed a Bid for Impressions to be delivered in Inventory. (i) Inventory means advertising space on, within or associated with premium content on web site(s) or app(s) offered through the Auction Platform by Customer. (j) Winning Bid Price means the price at which the Auction Platform awards Impressions to a bidding party which shall be no less than the minimum price that Customer has agreed to accept. 4. Term and Termination. (a) The initial term of this Agreement shall be one (1) year from the Effective Date (the Initial Term). This Agreement will automatically renew for additional 1-year terms unless earlier terminated pursuant to this Agreement's express provisions (together with the Initial Term, such additional periods the Term). Neither Party may terminate this Agreement during the Initial Term except as set forth in paragraph 4(b) or any Exhibit. Either Party may terminate this Agreement for any reason following the Initial Term upon ninety (90) days written notice to the other Party. Except for termination for material breach as detailed in paragraph 4(b), Kubient shall be entitled to all fees generated during the termination period regardless of which Party terminates the Agreement, (b) Either Party may terminate this Agreement if the other Party commits a material breach of the Agreement and upon thirty (30) days written notice to the other Party, such other Party hasn't cured the breach within such thirty (30) days. Either Party may terminate the Agreement immediately if the other party (i) becomes insolvent or makes a general assignment for the benefit of creditors; (ii) suffers or permits the appointment of a conservator or receiver for its business or assets or any similar action by a governmental entity for the purpose of assuming operation or control of the Party due to the financial condition of the Party; (iii) becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign and such proceeding or action has not been dismissed within a sixty (60) period; or (iv) has wound up or liquidated its business, voluntarily or otherwise.





(c) Upon termination of the Agreement: (i) Kubient will cease providing the Services; (ii) the license granted under section 3 shall be revoked, (iii) Customer will promptly cease use of the Services and the Auction Platform; (iv) and each Party will return or destroy any of the other Party's Confidential Information then in its possession. 5. Fees and Payment. The Parties agree to share any revenue generated as a result of this Agreement, or Customer's use of the Services or the Auction Platform, as set forth and detailed in each applicable Exhibit. Unless specified otherwise in an Exhibit, Kubient shall be responsible for contracting with all advertisers, agencies, media buyers, and/or sponsors (collectively Advertisers) on Customer's behalf, including Advertisers with whom Customer has existing relationships. Pursuant to the doctrine of sequential liability, payment from Kubient to Customer shall be made within seven (7) days from Kubient's receipt of payment, regardless of when Customer submits an invoice. Customer acknowledges and agrees that Kubient shall proceed with recovery of the amounts due on a best effort basis but will not initiate any legal action against a delinquent party without the express written consent and support of Customer. Except of taxes associated with Kubient's income, Customer shall be responsible for paying all applicable sales, use or other taxes, duties, or tariffs applicable to its use of the Services. 6. Use of Service. (a) Customer will comply with all international, federal, state and local laws, rules, and regulations of any governmental or regulating authority (Law) that are applicable to its business and use of the Service. Customer agrees that it will not transfer or (unless expressly and specifically approved by Kubient in advance and in writing) allow third-party access to the Service. Customer will not modify, translate, alter, tamper with, repair, or otherwise create derivative works of any software included in any Service; reverse engineer, disassemble, or decompile any software or Service or apply any other process or procedure to derive source code of any software included in any Service; or resell, transfer, assign, or use as a service bureau any Service. Customer will ensure that its stories, articles, polls, videos, pictures, photographs, images, broadcasts, and any other type of content (collectively the Content), and each of its websites, devices, applications, podcasts, ads, emails, databases or any other types of mediums for which the Service is engaged (collectively the Properties) contains or is linked to a privacy policy in accordance with applicable Law. Customer shall be responsible and solely liable for all the Content (including without limitation all intellectual property rights therein) and the Properties. 7. Limitation of Liability. (a) EXCEPT WITH RESPECT TO THE PARTIES' LIABILITY FOR INDEMNIFICATION, OR LIABILITY FOR BREACH OF CONFIDENTIALITY, NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES, WHETHER OR NOT CAUSED BY THE OTHER PARTY'S EMPLOYEES OR REPRESENTATIVES„ WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF THE OTHER PARTY WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 8. Arbitration. Each Party agrees and does waive trial by jury in any action, proceeding or counterclaim brought against the other Party for any matter whatsoever arising out of or in any way connected with this Agreement. No action, suit or proceeding shall be brought against a Party more than one year after the date of termination this Agreement. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof





9. Representations, Warranties, and Covenants. (a) Each Party represents, warrants and covenants to the other that (i) it has the full right, power, and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when agreed to. (b) Kubient represents, warrants and covenants that: (i) the Service and any deliverables provided hereunder by Kubient do not and shall not infringe, misappropriate or violate any patent, copyright, trademark, trade secret, publicity, privacy or other rights of any third party; (ii) the Service will perform in all material respects to industry standards; (iii) the collection, maintenance, management and storage of visitor information (data), to the extent collected, directed by, maintained or stored by Kubient, as well as the performance of the Auction Platform, is and shall be in a secure manner using best practices of security technology and best practices to protect against loss, misuse or alteration of data and Kubient shall use measures in accordance with industry standards to ensure that all databases shall be accessible only by certain authorized personnel of Kubient or Customer; (iv) it will ensure that the product and service provided by Kubient shall be free of any viruses, Trojan Horses, worms, time bombs, trap doors, back doors, Easter eggs, cancelbots, or other computer programming routines that will damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information; (v) the execution and delivery of the Agreement and the performance of its obligations hereunder do not conflict with or violate applicable Laws or regulations; (vi) any services provided by it shall comply with the terms of this Agreement and shall be free from errors that materially affect their utility; (vii) it owns or controls the rights granted or licensed to Customer herein; (viii) it is the rightful owner or licensee of all intellectual property rights to the Service, the Auction Platform and products delivered hereunder; (ix) it is now and throughout the Term shall comply with all applicable Laws in connection with the operation of its business and the performance of its obligations hereunder or the provision of the Service, except to the extent that such failure would not, in the aggregate, reasonably be expected to have a material adverse effect on Customer's business, (x) it shall not place advertising for guns, tobacco products, pornography, illegal products and any products identified by the IAB as excluded categories for advertising and (xi) it will ensure that all Target Bidders have agreed to provide representations and warranties with respect to the Creative in accordance with industry standards, including, without limitation, that all Creative is supported by competent and reliable prior substantiation in accordance with Law and complies with applicable Law and is not defamatory, libelous, slanderous or otherwise unlawful. (c) Customer represents and warrants that: (i) it is the sole and rightful owner of all the Content and Properties, or has the necessary rights to the Content and Properties to meet its obligations hereunder; (ii) the Content and Properties do not and shall not infringe, misappropriate or violate any patent, copyright, trademark, trade secret, publicity, privacy or other intellectual property or other rights of any third party; (iii) the collection, maintenance, management and storage of visitor information (data), to the extent collected, maintained or stored by Customer or a third-party on Customer's behalf, is in a secure manner using best practices of security technology and best practices to protect against loss, misuse or alteration of data and Customer shall use measures in accordance with industry standards to ensure that all databases shall be accessible only by certain authorized personnel of Kubient or Customer in accordance with Customer's privacy policy and applicable Law; and (iv) the execution and delivery of the Agreement and the performance of its obligations hereunder do not and will not violate any applicable Law. 10. Indemnification. (a) Kubient agrees to indemnify, defend, and hold harmless Customer and its officers, directors, managers, members, agents, and employees from all third-party allegations, claims, actions, losses, expenses, damages, costs (including, without limitation, reasonable attorneys' fees) or liabilities (Claims) arising out of or in connection with: (i) the Services; (ii) the Auction Platform; (iii) to the best of its knowledge the Creative placed onto Customer's platforms or websites by the Auction Platform; (iv) Kubient's breach of any representation or warranty under this Agreement or (v) the acts or omissions of Kubient or a third party hired by, employed, retained or under Kubient control with respect to Kubient's obligations hereunder. (b) Customer agrees to indemnify, defend, and hold harmless Kubient and its owners, shareholders, officers, directors, managers, agents, and employees from all third-party Claims arising out of or in connection with (i) Customer's unauthorized or inappropriate use of the Services, (ii) Customer's unauthorized or inappropriate use of the Auction Platform, (iii) Customer's breach of any representation or warranty under this Agreement, or (iv) the Content or Properties, including any allegation or claim that the Content or Properties violate or infringe on an y third party rig hts, or (v) the acts or omissions of Customer or a third party hired by, employed, retained or under Customer's control. 11. Indemnification Procedures. Any claim for indemnification hereunder shall be subject to the following provisions: (i) the party seeking indemnification shall provide prompt written notice of the claim to the indemnifying party, provided that any delay in providing notice shall not relieve the indemnifying party of its indemnity obligations ; (ii) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that no settlement admitting liability on the part of the indemnified party may be made without the express written consent of the indemnified party; and (iii) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel at the indemnifying party's cost and expense. 12. Confidentiality. Confidential Information means any tangible and intangible non-public information in any form (including written information, oral statements and electronically stored data) which a party discloses (the Discloser) to the other party (the Recipient) including, without limitation, information relating to trade secrets, systems, know-how, products, processes (including manufacturing processes), inventions, computer software programs, marketing or sales techniques, financial condition, costs, business interests, initiatives, objectives, plans, strategies, customers, suppliers, lenders, underwriters, or employees, that is marked as confidential or identified at the time of disclosure as being confidential or is otherwise disclosed under circumstances that would lead a reasonable person to conclude that such information is confidential, excluding information that: (a) was in Recipient's possession before receipt from the Discloser pursuant this Agreement; (b) is in or enters the public domain without a breach of this Agreement; (c) is rightfully received by Recipient from a third party who was not known by Recipient to be legally or contractually restricted from disclosing such information; or (d) is independently developed by Recipient without use of or reference to the Discloser's Confidential Information. Recipient will protect the Confidential Information, for one (1) year from the date of disclosure, by using at least the same degree of care as it uses to protect its own Confidential Information, but no less than a reasonable degree of care, to prevent unauthorized use, disclosure or publication. Notwithstanding the foregoing, if Recipient is required by applicable Law or a valid legal order to disclose any Confidential Information, Recipient shall, before such disclosure, notify Discloser of such requirements, if legally permissible and reasonably practicable, so that Discloser may seek a protective order or other remedy, and Recipient shall reasonably assist Discloser therewith (at Discloser's cost). If Recipient remains legally compelled to make such disclosure, it shall only disclose that portion of the Confidential Information Recipient is required to disclose. Without limiting the foregoing, Recipient: (x) will not use, disclose, make available or reproduce the Confidential Information (or permit others to do so) except as expressly authorized in this Agreement; (y) will not disclose any such Confidential Information to anyone except employees and directors of Recipient to whom disclosure is necessary for the performance of the Agreement; and (z) will appropriately notify such employees and directors that the disclosure is made in confidence and will be kept in confidence in accordance with this Agreement. If Recipient becomes aware of any loss or unauthorized disclosure of Confidential Information, Recipient will promptly notify Discloser of such and use reasonable efforts to retrieve such Confidential Information.





13. Disclaimer. Except as expressly set forth herein, the Services are provided on an as is, where is, and as available basis, and, to the maximum extent permitted by Law, Kubient disclaims, and Customer hereby waives, all representations and warranties, express or implied, arising by operation of Law or otherwise, except for the representations and warranties set forth in this Agreement, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, as well as any warranties arising from a course of dealing, usage or trade practice. Kubient makes no representation or warranty and expressly disclaims, and Customer understands and acknowledges, that there is no guarantee that any minimum level of revenue or profit will be generated by either Party as a result of the Services or this Agreement. 14. General Provisions. (a) This Agreement is governed in all respects by the laws of the State of Delaware without giving effect to its conflict of laws principles. Each Party hereby irrevocably submits for all disputes to the exclusive jurisdiction and venue of the state and federal courts located in New York, New York. (b) Each Party's names, trademarks and logos are the exclusive property of said respective Party, and neither Party will acquire any proprietary rights therein by reason of this Agreement or any other agreement. Neither Party may issue any publicity release or marketing materials identifying the other Party without the prior express written approval of such other Party, provided however, the Parties agree to issue a joint press release within ninety (90) days of the Effective Dave announcing the Agreement. (c) The relationship of the Parties is that of independent contractors, and nothing herein is intended, nor should be construed, to create a partnership, agency, joint venture or employment relationship. No act or statement of either Party will operate to bind the other and neither Party will hold itself out or have any authority as an agent of the other for any purposes whatsoever. (d) If any legal action, including, without limitation, an action for arbitration or injunctive relief, is brought relating to the Agreement or in breach hereof, the prevailing party in any final judgment or arbitration award shall be entitled to recover its reasonable expenses, including all court costs, arbitration fees and reasonable attorney's fees. (e) All notices provided pursuant to this Agreement will be in writing and will be deemed given (i) if by personal delivery, upon receipt thereof; (ii) if mailed five 5 days after deposit in the US mail, postage prepaid, certified mail return receipt requested; or (iii) if sent via overnight courier, upon receipt. All notices will be sent to the person who has signed this Agreement (at the address set forth above) or to such other person or address as either party may specify in writing. (f) If any provision of this Agreement is unenforceable, illegal or invalid under any applicable Law or court of competent jurisdiction, then such unenforceability or invalidity will not render the Agreement unenforceable or invalid. In such event, such provision will be deemed restated in accordance with applicable Law to reflect as nearly as possible the original intentions of the parties, and the remainder of the Agreement will remain in full force and effect. Provisions that should reasonably be considered to survive termination of the Agreement will survive and be enforceable after such termination or expiration, including without limitation provisions relating to confidentiality, proprietary rights, indemnification, limitations of liability, effects of termination, and governing Law. The delay or failure of either Party to exercise any right or power provided in this Agreement or to require performance by the other Party of any provision of this Agreement will not impair such right or power, or be deemed a waiver thereof. A waiver by either Party of any covenants to be performed by the other or any breach thereof will not be taken or held to be a waiver of any succeeding breach thereof or of any other covenant contained in this Agreement or under any agreement. (g) Neither Party will be liable under this Agreement by reason of any damages, failure or delays in the performance of its obligations under such Agreement (except for the payment of money) on account of any cause beyond the reasonable control of such Party, such as fire, explosion, power failures, pest damage, lightning or power surges, strikes or labor disputes, water, war, civil disturbances, terrorism, acts of civil or military authorities, inability to secure raw materials, transportation facilities, fuel or energy shortages, performance or availability of communications services or networks and network facilities failures of any suppliers or service providers, or other causes beyond the Party's reasonable control. (h) Neither Party may assign (voluntarily, by operation of law, or otherwise) this Agreement or any rights or obligations under this Agreement without the other Party's prior written consent, which shall not be unreasonably withheld, provided however, that either Party may assign this Agreement without approval or consent to any affiliate or purchaser of all or substantially all of said Party's assets related to the subject matter of this Agreement or to any successor by way of merger, stock sale, consolidation or similar transaction. Any attempted assignment other than in accordance herewith will be void. Subject to the foregoing, the Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns. The Agreement completely and exclusively states the agreement of the Parties regarding its subject matter. This Agreement supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding its subject matter. (i) This Agreement is intended for the sole and exclusive benefit of the Parties hereto, is not intended to confer any rights or benefits on any third party, and only the Parties may enforce such Agreement. This Agreement shall be binding on both Parties when signed on behalf of each Party, and may be signed in one or more counterparts, each of which shall be deemed to be an original and both of which when taken together will constitute one and the same agreement. Fax or electronically scanned copies of such executed documents may be used in lieu of the originals for any purpose.





IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the dates written below. Kubient Signature: /s/ Paul Roberts By: Paul Roberts Its: CFO Date: 2-6-2020 Customer Signature: /s/ Paul Caluori By: Paul Caluori Its: VP, Global Products Date: 02-05-2020 
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
answer:
8449


question:
EXHIBIT 10.1   RESELLER AGREEMENT   THIS RESELLER AGREEMENT (this Agreement) is made and entered into effect the 7th day of April, 2017 (Effective Date), by and between i3 Integrative Creative Solutions, LLC (i3 ICS), a Virginia limited liability company, having its offices at 6564 Loisdale Court Suite 1010B, Springfield, VA 22150 (Reseller) and the company set forth below (Company) (each, individually, a party and collectively, parties):   Company: Bravatek Solutions, Inc. (BVTK) Telephone: 1-866-490-8590

Address:2028 E. Ben White Blvd., Suite 240-2835 Fax: N/A

Austin, Texas 78741 E-mail: tom.cellucci@bravatek.com

Territory: US Federal Government Civilian and Military Agencies/Customers in the U.S. Agreement Term: 1 Year

Company Products: cybersecurity email software/telecom services Other Terms (not applicable if blank):

Pricing: Reseller will obtain pricing quote from Company for each opportunity. Contract is renewable for 1 year extension by amendment to this agreement. Either Party may terminate this agreement for non-cause with a sixty (60) written notice.   The parties agree as follows:   1. Definitions.   a. Company shall have the meaning assigned in the preamble.   b. Company Products shall have the meaning assigned in the preamble.   c. Effective Date shall have the meaning assigned in the preamble.   d. Marks shall have the meaning assigned in Section 7.   e. Net Revenue shall mean gross receipts collected by Company or Reseller from the distribution of Company Products, [less third party commissions, equipment sales, delivery costs, taxes, refunds, and credits.   f. Proprietary Information shall have the meaning assigned in Section 11.   g. Registered Referral shall mean a Named Account (i) for which Reseller identifies & creates the opportunity, provides Sales Assistance (as defined below), and (ii) which leads to a direct sale with the Company. Registered Referrals may fall into two categories: Sales executed by the Company, and via a third party's prime contract.   h. Sales Assistance shall mean (i) introductions to and scheduling meetings with key executives at the Named Account (e.g., CxO, Vice President of Infrastructure and Vice President of Application Development), and (ii) generating and delivering proposals and providing other marketing and sales support necessary to close the opportunity and obtain an order from the Named Account.   1

Source: BRAVATEK SOLUTIONS, INC., 8-K, 4/18/2017





      i. Registered Opportunity shall mean a Named Account (i) for which Reseller identifies & creates the opportunity, and (ii) the Reseller purchases directly from the Company at a discount and sells to the customer.   j. Fulfillment Transaction shall mean a sale through the Reseller's contract vehicle to a Federal Agency entity that is not a Registered Referral or Registered Opportunity   k. Referral Fee shall have the meaning assigned in Exhibit B.   l. Reseller shall have the meaning assigned in the preamble.   m. Territory shall have the meaning assigned in the preamble.   2. General Scope. Company develops or provides Company Products and desires that Reseller promote and solicit commitments to buy Company Products in the Territory.   3. Reseller Activity. Reseller shall have the right to solicit orders for Company Products within the Territory. In its activities under this Agreement, Reseller shall use the then-current names for the Company Products and any sales or marketing documentation or forms provided by Company.   4. Company Obligations. Company shall provide Reseller with the support described in Exhibit B. Company shall comply with good business practices and all applicable laws and regulations. During the term of this Agreement, Company shall notify reseller of any changes, modifications or the discontinuation of any of the Company Products within thirty (30) days. Company shall make reasonable accommodations for any ongoing sales or existing sales.   5. Exclusivity on Registered Referrals and Opportunities. During the Term hereof and for a period of six (6) months following the termination of this Agreement or the discontinuation of any of the Company Products, (i) the Reseller shall have the exclusive right to commission for any Registered Referrals, (ii) the Company shall not market, promote, sell, or distribute Company Products or solicit or procure orders for the Company Products, or for any product(s) or service(s) similar to the Company Products, in the Territory other than through the Reseller and pursuant to this Agreement, except with the prior written consent of the Reseller, and (iii) without limitation to the foregoing, the Company shall not, directly or through other parties (whether agents, representatives, intermediaries, resellers or other parties), market, promote, sell, distribute, solicit or procure orders to any existing or prospective customer of the Reseller.   6. Compensation. In the event that Reseller (i) refers a Registered Referral to Company, through delivery to Company of the lead form attached hereto as Exhibit A, and (ii) such Registered Referral executes an agreement to purchase any of such Company Products or services, then Company shall pay Reseller a Referral Fee, as specified in Exhibit B attached hereto. Referral Fees will be paid within thirty (30) days of the collection of receivables from the Registered Referral. In the event an opportunity is requested and the government elects to use a different contract vehicle as described in 1g, reseller will still receive Referral Fee outlined in exhibit B.   2

Source: BRAVATEK SOLUTIONS, INC., 8-K, 4/18/2017





      7. Trademarks, Trade Names and Other Designations. Subject to the terms of this Agreement, Company grants Reseller the right to use and display the Company trademarks, tradenames and other designations of source, and proprietary notices, slogans, designs and distinct advertising as may appear on any documentation or other material with respect to Product (Marks) with prior approval, that will not be unreasonable withheld.   8. Warranty Disclaimer. RESELLER SHALL MAKE NO REPRESENTATION, GUARANTEE, OR WARRANTY CONCERNING THE COMPANY PRODUCT EXCEPT AS EXPRESSLY AUTHORIZED IN ADVANCE BY COMPANY IN WRITING. TO THE EXTENT THE RESELLER HAS COMPLIED WITH THE OBLIGATIONS SET FORTH IN THIS SECTION, THE COMPANY SHALL INDEMNIFY AND HOLD HARMLESS THE RESELLER FOR ANY AND ALL LOSSES SUFFERED BY THE RESELLER OR ITS AFFILIATES (WHETHER DIRECTLY OR IN CONNECTION WITH A CLAIM BY A THIRD PARTY) AS A RESULT OF OR IN CONNECTION WITH THE COMPANY PRODUCTS. ADDITIONALLY, THE RESELLER SHALL INDEMNIFY AND HOLD HARMLESS THE COMPANY FOR ANY AND ALL LOSSES SUFFERED BY THE COMPANY OR ITS AFFILIATES (WHETHER DIRECTLY OR IN CONNECTION WITH A CLAIM BY A THIRD PARTY) AS A RESULT OF OR IN CONNECTION WITH THE RESELLER'S ACTIVITIES.   9. Relationship of Parties. The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement.   10. Termination.   a. Unless terminated earlier as provided herein, this Agreement shall have the Term set forth above (which commences on the Effective Date).   b. This Agreement may be terminated by Reseller for cause immediately upon the occurrence of any of the following events: (i) if the use or sale of Company Products are enjoined due to any claim of infringement of any U.S. patent or copyright or of any misappropriation of trade secrets; (ii) if Company ceases to do business, or otherwise terminates its business operations; or (iii) if Company breaches any provision of this Agreement and fails to fully cure such breach within fifteen (15) business days of written notice from Reseller describing the breach.   c. This Agreement may be terminated by Company for cause immediately upon the occurrence of any of the following events: (i) if Reseller ceases to do business, or otherwise terminates its business operations; or (ii) if Reseller breaches any provision of this Agreement and fails to fully cure such breach within fifteen (15) business days of written notice from Company describing the breach.   d. Neither party shall incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other party arising from or incident to any termination of this Agreement, which complies with the terms of the Agreement, whether or not the terminating party is aware of any such damage, loss or expenses.   3

Source: BRAVATEK SOLUTIONS, INC., 8-K, 4/18/2017





      e. Upon termination or expiration of this Agreement, other than with respect to customers of the Reseller existing at any time prior to the termination or expiration and with respect to ongoing sales or prospective sales, Reseller (i) shall immediately discontinue any use of the name, logotype, Marks or slogans of Company, (ii) shall immediately discontinue all representations or statements from which it might be inferred that any relationship exists between the parties, (iii) will cease to promote, solicit orders for or procure orders for the Product, (iv) will immediately return to Company all Proprietary Information (as defined below) and any other information or materials of Company in its possession, custody or control in whatever form held (including copies or embodiments thereof relating thereto). Notwithstanding the foregoing, the right to payments accruing prior to the termination or expiration shall survive termination or expiration of this Agreement.   11. Proprietary Rights. Each party acknowledges that, in the course of performing its duties under this Agreement, it may obtain from the other party, certain business, technical or financial information, all of which is confidential and proprietary (Proprietary Information). The parties shall, at all times, both during the term of this Agreement and after its termination, keep in trust and confidence all such Proprietary Information of the other party, and shall not use such Proprietary Information other than in the course of its duties as expressly provided in this Agreement; nor shall a party or its employees disclose any such Proprietary Information of the other to any person without such other party's prior written consent. Neither party shall be bound by this Section with respect to information it can document has entered or later enters the public domain as a result of no act or omission of the receiving party, or is lawfully received by such party from third parties without restriction and without breach of any duty of nondisclosure by any such third party.   12. Liability Limitation. EXCEPT FOR IN THE EVENT OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, THE RESELLER AND ITS AFFILIATES SHALL NOT BE LIABLE TO THE COMPANY, AND SHALL HAVE NO OBLIGATION TO INDEMNIFY OR HOLD HARMLESS THE COMPANY, WITH RESPECT TO OR IN CONNECTION WITH ANY LOSS RESULTING FROM OR CAUSED BY THE COMPANY PRODUCTS.   13.  Indemnification. Company shall indemnify, defend and hold Reseller and its officers, directors, employees, shareholders, agents, successors and assigns, harmless from and against any claim, demand lawsuit, cause of action or losses of any nature whatsoever, including reasonable attorneys' fees, suffered or incurred by Reseller or any of them, arising out of, (i) any claim that the Company Products infringe any U.S. patent or copyright or that the Company Products incorporate any misappropriated trade secrets or (ii) any claim for injury or other loss to any person arising from the use of Company Products. Additionally, Reseller shall indemnify, defend and hold Company and its officers, directors, employees, shareholders, agents, successors and assigns, harmless from and against any claim, demand lawsuit, cause of action or losses of any nature whatsoever, including reasonable attorneys' fees, suffered or incurred by Company or any of them, arising out of, (i) any claim that the Reseller's Activities infringe any U.S. Business law or that the Reseller's Activities violate any U.S. government process, procedure or requirement or (ii) any claim for injury or other loss to any person arising from the use of Reseller's Activities.   4

Source: BRAVATEK SOLUTIONS, INC., 8-K, 4/18/2017





      14. Miscellaneous. If any provision of this Agreement is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Except as otherwise expressly provided herein, any provision of this Agreement may be amended or waived only with the written consent of both parties. This Agreement may be executed in separate counterparts, each of which so executed and delivered (including by emailed PDF) shall constitute an original, but all such counterparts shall together constitute one and the same instrument. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia without regard to the conflicts of law provisions thereof. This Agreement supersedes all prior agreements or discussions between the parties with respect to the subject matter hereof.     RESELLER   Bravatek Solutions, Inc.               I3 ICS, LLC                     By: /s/ Philip A. Oakley   By: /s/ Thomas A. Cellucci   Name:Philip A. Oakley   Name:Thomas A. Cellucci   Title: President   Title: Chairman & CEO   Date: April 17, 2017   Date: April 17, 2017     5

Source: BRAVATEK SOLUTIONS, INC., 8-K, 4/18/2017





      EXHIBIT A   LEAD FORM   Customer Info:   Date:

Company Products:   Purchase Price (in U.S. dollars):   Total License Fee:

Term:     Evaluation Term: [YES OR NO]   6

Source: BRAVATEK SOLUTIONS, INC., 8-K, 4/18/2017





      EXHIBIT B   RESELLER COMPENSATION   Earned Commission:   Reseller will be compensated for Registered Referrals and Registered Opportunities (as defined in Section 1g, 1i.) based on the following schedule:   Registered Referral:

  · 25% of Net Revenue (as defined in Section 1e.) with a COMPANY-RESELLER AGREED UPON SALE PRICE in writing, the case of COMPANY's software products. The Company's Telecom Services will be agreed upon on a case-by-case basis in writing.   Registered Opportunity:

  · Reseller will purchase directly from the Company at a 25% discount off the COMPANY-RESELLER AGREED UPONsale price.

  · If sale is made through SEWP, there will be an additional 4% discount off the sale price to cover the Prime contractusage fee (typically 7-10%) off the COMPANY-RESELLAR AGREED UPON SALE PRICE.   Fulfillment Transaction Discount (as defined in Section 1j):     · Reseller will purchase directly from the Company at a 7-10% discount off the sale price.   Payment Terms:   For a registered referral where the customer purchases directly from Company or another channel/contract vehicle other than Reseller, earned commissions are payable within thirty (30)days of when such amounts are collected by Company.   For a Registered Opportunity where the customer purchases from Reseller, payment will be made by Reseller to Company within 5 days of receipt of payment (paid when paid).   Expense Reimbursement: Reimbursement will be provided ONLY for expenses PRE-APPROVED in writing by Company.   Marketing Expense: As may be agreed to by the parties in writing.   7

Source: BRAVATEK SOLUTIONS, INC., 8-K, 4/18/2017





      COMPANY SUPPORT OBLIGATIONS   Product Training: Training on the Company products as needed.   Marketing Materials: Electronic and print copies of existing marketing material as needed.   Company Personnel Resources:     · Access to technical resources for demonstrations and meetings         · Access to Company Customer Support Services       8

Source: BRAVATEK SOLUTIONS, INC., 8-K, 4/18/2017 
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
answer:
10706


question:
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Exhibit 10.16

     EL BANCO FINANCIAL CORPORATION

AGENCY AGREEMENT

, 2006

Ladies and Gentlemen:

El Banco Financial Corporation, a Georgia corporation (the Company), proposes, subject to the terms and conditions stated herein, to engage the sales agent identified on the signature page to this Agreement (the Agent or you) to assist the Company on a best efforts basis in the sale of the Company's common stock, $.01 par value per share (the Shares).

1. The Offering. The Company is offering the Shares, in connection with the Company's initial public offering (the Offering).

The Company has prepared and filed, in accordance with the provisions of the Securities Act of 1933 and the rules and regulations thereunder (collectively, the 1933 Act), with the Securities and Exchange Commission (the Commission) a registration statement on Form SB-2 (File No. 333-135900) under the 1933 Act, including a prospectus, relating to the Shares. Except where the context otherwise requires, Registration Statement, as used herein, means the registration statement, as amended at the time of such registration statement's effectiveness for purposes of Section 11 of the 1933 Act (the Effective Time), including (i) all documents filed as a part thereof, (ii) any information contained in a prospectus subsequently filed with the Commission pursuant to Rule 424(b) under the 1933 Act and deemed, pursuant to Rule 430A or Rule 430C under the 1933 Act, to be part of the registration statement at the Effective Time, and (iii) any registration statement filed to register the offer and sale of the Shares pursuant to Rule 462(b) under the 1933 Act.

Except where the context otherwise requires, a Preliminary Prospectus, as used herein, means any preliminary prospectus included in the Registration Statement or filed with the Commission pursuant to Rule 424(a) under the Securities Act.

Except where the context otherwise requires, Prospectus, as used herein, means the prospectus filed by the Company with the Commission pursuant to Rule 424(b) under the 1933 Act on or before the second business day after the Effective Time (or such earlier time as may be required under the Act), or, if no such filing is required, the final prospectus included in the Registration Statement at the Effective Time.

Permitted Free Writing Prospectuses, as used herein, means the documents and each road show (as defined in Rule 433(h)(4) under the 1933 Act), if any, related to the offering of the Shares contemplated hereby that is a written communication (as defined in Rule 405 under the 1933 Act).

Disclosure Package, as used herein, means any Preliminary Prospectus together with any combination of one or more of the Permitted Free Writing Prospectuses, if any.

Blue Sky Application, as used herein, means any instrument or document executed by the Company or based upon written information supplied by the Company filed in any state or jurisdiction to register or qualify any or all of the Shares or to claim an exemption therefrom or provided to any state or jurisdiction to exempt the Company as a broker-dealer or the officers, directors or employees as broker-dealers or agents of the Company under the securities laws thereof.

Any reference herein to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference, therein (the Incorporated Documents), including, without limitation, unless the context otherwise requires, the documents, if









any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms amend, amendment or supplement with respect to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Securities Exchange Act of 1934 and the rules and regulations thereunder (the Exchange Act) on or after the Effective Time, or the date of such Preliminary Prospectus, the Prospectus or such Permitted Free Writing Prospectus, as the case may be, and deemed to be incorporated therein by reference.

2. Retention of Agent; Compensation; Sale and Delivery of the Shares. Subject to the terms and conditions herein set forth, the Company hereby appoints the Agent as a placement agent, on a non-exclusive basis, to utilize its best efforts to solicit subscriptions for the Shares and to assist the Company with respect to the Company's sale of the Shares in the Offering.

On the basis of the representations and warranties and subject to the terms and conditions of this Agreement, the Agent accepts such appointment. The Agent shall not be obligated to purchase any Shares and shall not be obligated to take any action which Agent deems to be inconsistent with any applicable law, regulation, decision or order. Subscriptions will be offered as described in the Registration Statement. Except as otherwise provided in this Agreement, the appointment of the Agent will terminate upon completion, expiration or termination of the Offering.

In the event the Company is unable to sell a minimum of 1,875,000 Shares on or before June 30, 2007, this Agreement shall terminate and the Company shall cause the Escrow Agent (as defined below) to refund to any persons who have subscribed for any of the Shares the full amount it received from them, without interest, as set forth in the Prospectus; and none of the parties to this Agreement shall have any obligation to the other parties hereunder, except as set forth in this Section 2 and in Sections 8, 10, and 11.

In the event the Offering is terminated and the Closing (as defined below) does not occur, then the Agent shall not receive the fees set forth in subparagraph (a) below (the Fees); provided, however, regardless of whether or not the Closing occurs, the Agent shall be entitled to receive reimbursement of its actual accountable out-of-pocket expenses, as set forth in subparagraph (b) below.

If all conditions precedent to the consummation of the Offering are satisfied, the Company agrees to issue, or have issued, the Shares sold in the Offering and to release for delivery certificates for such Shares on the Closing Date (as defined below) against payment to the Company by any means authorized pursuant hereto; provided, however, that no funds shall be released to the Company until the conditions specified in Section 9 hereof shall have been complied with to the reasonable satisfaction of the Company. The release of Shares against payment therefor shall be made on a date or dates and at a place determined by the Company (each closing, a Closing). Certificates for Shares shall be delivered directly to the purchasers in accordance with their directions. The date upon which the Company shall release or deliver the Shares sold in the Offering, in accordance with the terms herein, is called the Closing Date. After the initial Closing, which may occur at any time after the minimum of 1,875,000 Shares have been sold, the Company may continue the Offering and the Agent may continue to solicit purchasers for the Shares up to the maximum amount of the Offering or until the Offering expires or is closed by the Company as set forth in the Prospectus. Additional Closings shall occur with respect to Shares sold after the initial Closing on dates and at locations as determined by the Company after the initial Closing, each also considered a Closing Date.

The Agent shall receive the following compensation for its services hereunder:

a. The fee shall be equal to 5.2% of the gross proceeds received in the Offering attributable to the efforts of the Agent. At least 48 hours prior to each Closing, the Agent shall deliver a schedule, identified as Appendix A, that lists each investor and the amount of investment.

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b. Agent shall be reimbursed for expenses as contemplated by Section 8 of this Agreement, regardless of whether the Offering is successfully completed. Any out-of-pocket expenses or commissions payable under this Agreement shall be paid in next day funds on the earlier of the initial Closing Date or a determination by the Company to terminate or abandon the Offering, and on each subsequent Closing Date thereafter.

3. Representations and Warranties of the Company. The Company represents and warrants to the Agent that:

a. The Company has all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to issue and sell the Shares as contemplated herein and as described in the Registration Statement, any Preliminary Prospectuses, the Prospectus or any Permitted Free Writing Prospectus. The consummation of the Offering, the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly and validly authorized by all necessary corporate action on the part of the Company and this Agreement has been validly executed and delivered by the Company and is the valid, legal and binding agreement of the Company enforceable in accordance with its terms, except to the extent, if any, that the provisions of Section 10 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors' rights generally.

b. The Registration Statement is effective under the 1933 Act; no stop order of the Commission preventing or suspending the use of any Preliminary Prospectus or Permitted Free Writing Prospectus or the effectiveness of the Registration Statement has been issued, and no proceedings for such purpose have been instituted or, to the knowledge of the Company, are contemplated by the Commission; the Registration Statement complied when it became effective, complies as of the date hereof and, as amended or supplemented, at each time a subscription agreement of funds are submitted by prospective investors to the Company during the Offering period (each such time referred to as a time of delivery), at the Closing Date and at all times during which a prospectus is required by the 1933 Act to be delivered (whether physically or through compliance with Rule 172 under the 1933 Act or any similar rule) in connection with any sale of Shares, will comply, in all material respects, with the requirements of the 1933 Act; each Preliminary Prospectus complied, at the time it was filed with the Commission, and complies as of the date hereof, in all material respects, with the requirements of the 1933 Act; at no time during the period that begins on the earlier of the date of such Preliminary Prospectus and the date such Preliminary Prospectus was filed with the Commission and ends at the Closing Time (as defined herein) did or will any Preliminary Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and at no time during such period did or will any Preliminary Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus will comply, as of its date, the date that it is filed with the Commission, each time of delivery, the Closing Date and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the 1933 Act or any similar rule) in connection with any sale of Shares, in all material respects, with the requirements of the 1933 Act (including, without limitation, Section 10(a) of the 1933 Act); at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the later of the Closing Time and the end of the period during which a prospectus is required by the 1933 Act to be delivered (whether physically or through compliance with Rule 172 under the 1933 Act or any similar rule) in connection with any sale of Shares did or will the Prospectus, as then amended or

3







supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation or warranty with respect to any statement contained in the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information concerning the Agent and furnished in writing by or on behalf of the Agent to the Company expressly for use in the Registration Statement, such Preliminary Prospectus, the Prospectus or such Permitted Free Writing Prospectus, as applicable. All Permitted Free Writing Prospectuses were preceded by, or accompanied with, a statutory prospectus meeting the requirements of Section 10(a) of the Act as required by Rule 164 under the 1933 Act.

c. If a Permitted Free Writing Prospectus is sent or given after the Registration Statement is filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the 1933 Act, filed with the Commission), the sending or giving, by the Agent, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 of the 1933 Act (without reliance on subsections (b), (c) and (d) of Rule 164); each of the Preliminary Prospectuses is a prospectus that, other than by reason of Rule 433 or Rule 431 under the 1933 Act, satisfies the requirements of Section 10 of the 1933 Act, including a price range where required by rule; neither the Company nor the Agent is disqualified, by reason of subsection (f) or (g) of Rule 164 under the 1933 Act, from using, in connection with the offer and sale of the Shares, free writing prospectuses (as defined in Rule 405 under the 1933 Act) pursuant to Rules 164 and 433 under the 1933 Act; the Company is not an ineligible issuer (as defined in Rule 405 under the 1933 Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the 1933 Act with respect to the offering of the Shares contemplated by the Registration Statement; the parties hereto agree and understand that the content of any and all road shows related to the Offering is solely the property of the Company.

d. No Blue Sky Application will include an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation or warranty with respect to any statement contained in a Blue Sky Application in reliance upon and in conformity with information concerning the Agent and furnished in writing by or on behalf of the Agent to the Company expressly for use in the Blue Sky Application.

e. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of State of Georgia, and has corporate power and authority to own, lease or operate its properties and to conduct its business as described in the Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, and to enter into and perform its obligations under this Agreement.

f. Since the respective dates as of which information is given in the Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, except as otherwise stated therein, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company considered as one enterprise, whether or not arising in the ordinary course of business (a Material Adverse Effect).

g. The Company has an authorized capitalization as set forth in the Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any.

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h. The Shares have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued and fully paid and nonassessable and will conform to the description of the Shares contained in the Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any.

i. The issuance and sale of the Shares being issued at each Closing Date by the Company and the performance of this Agreement and the consummation by the Company of the other transactions herein contemplated will not conflict with or result in a breach or violation of any terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company is a party or by which any of the property or assets of the Company is bound or to which any of the property or assets of the Company is subject, nor will such action result in any violation of the provisions of the Articles of Incorporation, as amended, or Bylaws, as amended, of the Company or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issuance and sale of the Shares or the consummation by the Company of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under the Act and under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Agent.

j. The Company owns its assets and has the right to conduct its business as currently conducted.

k. There is no litigation or governmental proceeding pending or threatened against, or involving the properties or business of, the Company that might materially and adversely affect the value or the operation of the any such properties or the business of the Company.

l. McNair, McLemore, Middlebrooks & Co., LLP, which has certified certain financial statements and supporting schedules of the Company included in the Registration Statement, the Preliminary Prospectus, the Prospectus and the Free Writing Prospectuses containing an audit report, are independent public accountants as required by the Act and the rules and regulations of the Commission thereunder.

m. The Company has not distributed, nor will it distribute, prior to the Closing Time any prospectus (as defined under the 1933 Act) in connection with the Offering and sale of the Shares other than the Registration Statement, any Preliminary Prospectuses, the Prospectus, any Permitted Free Writing Prospectuses or other materials, if any, permitted by the 1933 Act, including Rule 134 promulgated thereunder.

4. Representations and Warranties of the Agent.

a. The Agent has all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to act as a sales agent as contemplated herein and as described in the Registration Statement, any Preliminary Prospectuses, the Prospectus or any Permitted Free Writing Prospectus. The consummation of the Offering, the execution, delivery and performance of this Agreement by the Agent and the consummation by the Agent of the transactions herein contemplated have been duly and validly authorized by all necessary corporate action on the part of the Agent and this Agreement has been validly executed and delivered by the Agent and is the valid, legal and binding agreement of the Agent enforceable in accordance with its terms, except to the extent, if any, that the provisions of Section 8 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors' rights generally.

5







b. The Agent is registered as a broker-dealer under applicable federal and state laws, is a member in good standing of the National Association of Securities Dealers, Inc., and has met and will continue to meet all registration, licensing, financial and reporting requirements it is required to meet under applicable federal and state laws and regulations in order to provide the services the Agent has agreed to provide, or that the Agent contemplates that it will provide, to the Company under this Agreement or otherwise in connection with the Offering.

c. Each employee, agent, representative or affiliate of the Agent that provides any services to the Company under this Agreement or otherwise in connection with the Offering will, at the time of providing those services, meet all registration and licensing requirements he or it is required to meet under applicable federal and state laws and regulations in order to provide those services.

5. Delivery and Payment.

An escrow procedure shall be established which shall comply with Commission Rule 15c2-4, promulgated under the Exchange Act and applicable NASD rules and regulations, with Flag Bank as escrow agent (the Escrow Agent).

The Company and the Agent shall transmit all funds received from subscribers to the Escrow Agent by noon of the next business day following receipt thereof. The Company shall direct the Escrow Agent to make payment for Shares sold hereunder by wire transfer or certified or bank cashier's check drawn to the order of the Company in next day funds. Such payment is to be made at the offices of Flag Bank, at 10:00 a.m. local time, on each Closing Date or at another time agreed to by the Agent and the Company. The time of such payment is referred to as the Closing Time. The Company shall direct the Escrow Agent to deliver payment of the fees due to the Agent pursuant to Section 2 hereof (less any portion thereof previously paid to the Agent) to the Agent by wire transfer or certified or bank cashier's check drawn to the order of the Agent in next day funds, to the Agent on each Closing Date.

6. Covenants of the Company. The Company hereby covenants to the Agent as follows:

a. The Company has filed the Registration Statement with the Commission. The Company will use its best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission, and will immediately upon receipt of any information concerning the events listed below notify the Agent (i) when the Registration Statement, as amended, has become effective; (ii) of any request by the Commission or any other governmental entity for any amendment or supplement to the Registration Statement; (iii) of the issuance by the Commission or any other governmental agency of any order or other action suspending the Offering or the use of the Registration Statement, the Preliminary Prospectuses, the Prospectus or the Permitted Free Writing Prospectuses, if any; or (iv) of the issuance by the Commission or any state authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose.

b. The Company will deliver to the Agent copies of the Registration Statement, as originally filed and each amendment thereto. Further, the Company will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD filings. The Company will also deliver to the Agent such number of copies of the Prospectus, as amended or supplemented, as the Agent may reasonably request.

c. The Company will comply in all material respects with any and all terms, conditions, requirements and provisions with respect to the Offering and the transactions contemplated thereby imposed by the Commission, by applicable state law and regulations, and by the 1933 Act, the Exchange Act and the rules and regulations of the Commission promulgated under such statutes, to be complied with prior to or subsequent to the Closing Date.

6







d. If any event relating to or affecting the Company shall occur, as a result of which it is necessary, in the reasonable opinion of counsel for the Company, to amend or supplement the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus in order to make them not misleading in light of the circumstances existing at the time of its use, the Company will, at its expense, prepare, file with the Commission, and furnish to the Agent, a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus which will amend or supplement the Registration Statement, Preliminary Prospectus, Prospectus or any Permitted Free Writing Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time, not misleading.

e. The Company will endeavor in good faith, in cooperation with the Agent, to register or to qualify the Shares for offering and sale under the applicable securities laws of the jurisdictions in which the Offering will be conducted; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify to do business in any jurisdiction in which it is not so qualified. In each jurisdiction where any of the Shares shall have been registered or qualified as above provided, the Company will make and file such statements and reports in each year as are or may be required by the laws of such jurisdictions.

f. Prior to the Closing Date, the Company will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement, any Preliminary Prospectus, the Prospectus, or any Permitted Free Writing Prospectus as then supplemented or amended, would include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.

g. The Company will distribute the Prospectus or other offering materials in connection with the offering and sale of the Shares only as set forth in the Prospectus, and only in accordance with the 1933 Act and the Exchange Act and the rules and regulations promulgated under such statutes, and the laws of any state in which the Shares are qualified for sale.

h. The Company will maintain appropriate arrangements with the Escrow Agent for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering as described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Company's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering as described in the Prospectus.

i. The Company will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD Rule 2790 Restrictions on the Purchase and Sale of Initial Equity Public Offerings of Equity Securities.

j. The Company will not deliver the Shares until the Company has satisfied or caused to be satisfied each condition set forth in Section 9 hereof.

7. Covenants of the Agent.

a. The Agent will not provide any service or engage in any activity, and it will not permit the Agent or any of its employees, agents, representatives or affiliates to provide any service or engage in any activity, whether pursuant to this Agreement or otherwise in connection with the Offering, for which it or he does not have in effect all registrations, licenses and approvals necessary to cause that service or activity to comply with applicable federal and state laws and regulations.

b. Notwithstanding anything contained in this Agreement to the contrary, the terms and conditions of the Offering as described in the Prospectus shall control the conduct of the Offering, and

7







neither the Agent nor any of its respective employees, agents, representatives or affiliates shall take any action in connection with the Offering contrary to those terms and conditions.

c. In connection with or during the course of the Offering, neither the Agent nor any employee, agent, representative or affiliate of the Agent will make any representation or provide any information to any subscriber or potential subscriber for the Shares other the representations and information contained in the Prospectus or other information specifically approved by the Company.

8. Payment of Expenses. The Company covenants and agrees with the Agent that it will pay or cause to be paid the following: (i) the fees, disbursements and expenses of counsel to the Company and accountants in connection with the registration of the Shares under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus, each Permitted Free Writing Prospectus and any amendments or supplements thereto, and the mailing and delivering of copies thereof to the Agent and dealers; (ii) the cost of printing or reproducing this agreement, the Blue Sky Survey, any dealer agreements and any other documents in connection with the offering, purchase, sale and delivery of the Shares; (iii) all expenses in connection with the qualification of the Shares for offering and sale under state securities laws; (iv) the cost of preparing stock certificates; (v) all expenses related to road shows; (vi) the costs or expenses of any transfer agent or registrar; and (vi) all reasonable out-of-pocket fees and expenses of the Agent, including the reasonable fees and expenses of counsel for the Agent related to the Offering and not otherwise specifically provided for in this Section; the total for all such reasonable out-of-pocket fees and expenses shall not exceed $5,000 without the consent of the Company (exclusive of any blue sky-related fees if the Agent's counsel is requested to complete such services by the Company).

9. Conditions to Closing. The Closing of the Offering is subject to the following conditions:

a. The Registration Statement and any registration statement required to be filed, prior to the sale of the Shares, under the Act pursuant to Rule 424(b) shall have been filed and shall have become effective under the 1933 Act.

b. (i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of the 1933 Act; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Preliminary Prospectuses or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.

c. The Company and Agent agree that Appendix A is accurate and complete.

d. The NASD has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms of this Agreement and Agent's compensation hereunder.

10. Indemnification by the Company.

a. The Company agrees to indemnify and hold harmless the Agent, and its officers, directors, agents, representatives and affiliates and any other person, if any, who controls the Agent or its

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affiliates within the meaning of the 1933 Act (these parties together with the Agent are hereinafter referred to as the Agent Indemnitees) against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation and counsel's fees) arising out of or based upon the actions of the Company or any of its employees, agents, representatives or affiliates (i) that constitute bad faith or gross negligence on the part of the Company or its employees, agents, representatives or affiliates, (ii) that constitute violations of applicable federal or state laws or regulations on the part of the Company or its employees, agents, representatives or affiliates, or (iii) that constitute a violation of any of the Company's agreements, representations or warranties contained in this Agreement. The Company will reimburse the Agent and the Agent Indemnitees for any legal or other expenses reasonably incurred (individually or collectively) by it or them in connection with investigating or defending any such loss, claim, damage, liability or action. However, the Company will not be responsible for (i) any losses, claims, damages, liabilities or expenses that result from bad faith or gross negligence on the part of the Agent or any of its employees, agents, representatives or affiliates, or on the part of the Agent Indemnitee, (ii) that arise out of actions or conduct by the Agent or any of its employees, agents, representatives or affiliates, or by any Agent Indemnitee, that constitute a violation of any applicable federal or state law or regulation, or (iii) that arise out of actions or conduct by the Agent or any of its employees, agents, representatives or affiliates, or by any Agent Indemnitee, that constitutes a violation of any of Agent's agreements, representations or warranties contained in this Agreement.

b. If any action or claim shall be brought or asserted against an Agent Indemnitee in respect of which indemnity may be sought from the Company, it or he shall promptly notify the Company in writing, enclosing copies of all papers served on or delivered to such party. A failure to notify or delay in notifying the Company shall not affect the right of the Agent Indemnitee to be indemnified or reimbursed hereunder except to the extent the Company is shown to have been materially prejudiced as a result of such failure. No Agent Indemnitee shall settle, compromise or consent to the entry of any judgment with respect to any litigation, investigation or proceeding commenced or threatened by any person or entity, including any governmental agency or body, or any claim whatsoever in respect of which indemnification or contribution can be sought under this Section 10 (whether or not the Agent Indemnitees are actual or potential parties thereto), unless the Agent or the Agent Indemnitee obtains the prior written consent of the Company.

11. Indemnification by the Agent.

a. The Agent agrees to indemnify and hold harmless the Company, and its officers, directors, agents, organizers, representatives and affiliates and any other person, if any, who controls the Company or its affiliates within the meaning of the 1933 Act (these parties together with the Company are hereinafter referred to as the Company Indemnitees) against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation and counsel's fees) arising out of or based upon the actions of the Agent or any of its respective employees, agents, representatives or affiliates (i) that constitute bad faith or gross negligence on the part of the Agent or any of its employees, agents, representatives or affiliates, (ii) that constitute violations of applicable federal or state laws or regulations on the part of the Agent or any of its employees, agents, representatives or affiliates, or (iii) that constitutes a violation of any of the Agent's agreements, representations or warranties contained in this Agreement. The Agent will reimburse the Company and the Company Indemnitees for any legal or other expenses reasonably incurred (individually or collectively) by it or them in connection with investigating or defending any such loss, claim, damage, liability or action. However, the Agent will not be responsible for (i) any losses, claims, damages, liabilities or expenses that result from bad faith or gross negligence on the part of the Company or any of its employees, agents, representatives or affiliates, or on the part of the Company Indemnitee, (ii) that arise out of actions or conduct by the Company or any of its employees, agents, representatives or affiliates, or by the Company, that constitute a violation of any applicable federal or state law or regulation, or

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(iii) that constitutes a violation of any of the Company's agreements, representations or warranties contained in this Agreement.

b. If any action or claim shall be brought or asserted against a Company Indemnitee in respect of which indemnity may be sought from the Agent, it shall promptly notify the Agent in writing, enclosing copies of all papers served on or delivered to such party. A failure to notify or delay in notifying the Agent shall not affect the right of the Company Indemnitee to be indemnified or reimbursed hereunder except to the extent the Agent is shown to have been materially prejudiced as a result of such failure. No Company Indemnitee shall settle, compromise or consent to the entry of any judgment with respect to any litigation, investigation or proceeding commenced or threatened by any person or entity, including any governmental agency or body, or any claim whatsoever in respect of which indemnification or contribution can be sought under this Section 11 (whether or not the Company Indemnitees are actual or potential parties thereto), unless the Company obtains the prior written consent of the Company.

c. The Agent agrees to indemnify and hold harmless the Company Indemnitees against any and all losses, liabilities, claims, damages and expenses to which it or they may become subject if such losses, liabilities, claims, damages or expenses arise solely out of, or are based solely on, (i) any untrue or alleged untrue statement of material fact contained in the Prospectus or any amendment or supplement thereto, or the omission of a material fact required to be stated therein, or necessary to make the statements therein not misleading, but only if such untrue statement or omission or alleged omission was made in the Prospectus (as amended or supplemented) based upon and in conformity with written information concerning the Agent furnished to the Company by the Agent specifically for use in the Prospectus or (ii) any untrue or alleged untrue statement of material fact contained in any other information (whether oral or in writing) provided by the Agent or any of its respective employees, agents, representatives or affiliates to the Company or any other person in the course of providing services pursuant to this Agreement or otherwise in connection with the Offering.

12. Representations and Indemnities to Survive. All representations, warranties and agreements contained in this Agreement of the Company and the Agent shall remain in full force and effect, regardless of any termination or cancellation of this Agreement, and shall survive delivery of and payment for the Shares.

13. Termination and Payment of Expenses. This Agreement shall become effective on the date hereof and shall terminate upon the termination of the Offering. If for any reason any Shares are not delivered by or on behalf of the Company as provided herein, the Company will reimburse the Agent for all actual and accountable out-of-pocket expenses, including fees and disbursements of counsel, reasonably incurred by the Agent in making preparations for the purchase, sale and delivery of the Shares not so delivered, but the Company shall then be under no further liability to the Agent except as provided in Section 8 and Section 10 hereof.

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14. Notices. All statements, requests, notices and agreements hereunder shall be in writing and shall be sufficient in all respects if delivered or sent by reliable courier, first class mail, or facsimile transmission to:

    Agent:   As set forth on the signature page to this agreement

  Company:   El Banco Financial Corporation 623 Holcomb Bridge Road Roswell, Georgia 30076 Facsimile: (678) 352-1514

    With a copy to: Nelson Mullins Riley & Scarborough LLP 999 Peachtree Street, Suit 1400 Atlanta, Georgia 30309 Attention: Rusty Pickering Facsimile: (404) 817-6050

Any such statements, requests, notices or agreements shall take effect upon receipt thereof.

15. Non-Exclusive. This Agreement does not create an exclusive arrangement for the Agent to provide services to the Company, and nothing in this Agreement shall preclude the Company from contracting or entering into an arrangement with any other sales agent, consultant, broker-dealer or other person for such other person or entity to provide services to the Company as agent in the Offering and to receive compensation from the Company in connection with the Offering.

16. Successors. This Agreement shall be binding upon, and inure solely to the benefit of, the Agent and the Company, and to the extent provided in Sections 10, 11 and 12 hereof; the officers and directors of the Company and each person who controls the Company, or the Agent, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this agreement. No purchaser of any of the Shares from the Agent shall be deemed a successor or assign by reason merely of such purchase.

17. Time of the Essence. Time shall be of the essence in this Agreement.

18. Business Day. As used herein, the term business day shall mean any day when the Commission's office in Washington, D.C. is open for business.

19. Applicable Law. THIS AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF GEORGIA (WITHOUT REGARD TO THOSE LAWS RELATING TO CHOICE OF LAW) APPLYING TO CONTRACTS ENTERED INTO AND TO BE PERFORMED WITHIN THE STATE OF GEORGIA. VENUE FOR ANY CAUSE OF ACTION ARISING FROM THIS AGREEMENT WILL LIE IN FULTON COUNTY, GEORGIA.

20. Captions. The captions included in this Agreement are included solely for convenience of reference and shall not be deemed to be a part of this Agreement.

21. Counterparts. This Agreement may be executed by any one or more of the parties in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.

22. Pronouns. All pronouns used herein shall be deemed to refer to the masculine, feminine or neuter gender as the context requires.

[Signatures on Following Page]

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 IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on its behalf by its duly authorized officers as of the day and year first above written.

    EL BANCO FINANCIAL CORPORATION

  By:       Name: Its:





(SALES AGENT)       By:         Name: Its:     Address:

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     Appendix A

Name of Investor



Amount of Investment

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EL BANCO FINANCIAL CORPORATION AGENCY AGREEMENT Appendix A 
Question: Highlight the parts (if any) of this contract related to Minimum Commitment that should be reviewed by a lawyer. Details: Is there a minimum order size or minimum amount or units per-time period that one party must buy from the counterparty under the contract?
answer:

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