Digital.ai Services Agreement
This Services Agreement (this "Agreement") is entered into by and between you ("Service Provider") and Digital.ai Software, Inc. a Delaware corporation with offices located at 285 Summer Street, Boston, MA 02210 (“Company” and together with the Service Provider, the "Parties", and each a "Party").
- Services. Service Provider shall provide to Company the services (the "Services") set out in one or more statements of work to be issued by Company and accepted by Service Provider (each, a "Statement of Work"). Additional Statements of Work shall be deemed accepted only if signed by the Service Provider and the Company. The Service Provider shall provide the Services (a) in accordance with the terms and subject to the conditions set forth in the respective Statement of Work and this Agreement; (b) using personnel of required skill, experience, and qualifications; and (c) in a timely, workmanlike, and professional manner.
- Fees and Expenses.
2.1 In consideration of the Services to be performed under this Agreement, Company shall pay to Service Provider a fee determined in accordance with the fee schedule set out in each Statement of Work. Unless otherwise provided in the Statement of Work, said fee will be payable within 60 days of receipt by the Company of an invoice from Service Provider accompanied by documentation reasonably requested by the Company evidencing all charges.
2.2 All Service Provider expenses not pre-approved by the Company shall be the sole responsibility of the Service Provider.
2.3 The fees set forth in this Statement of Work shall cover and include all sales and use taxes, duties, and charges of any kind imposed by any federal, state, or local governmental authority on amounts payable by Company under this Agreement, and in no event shall Company be required to pay any additional amount to Service Provider in connection with such taxes, duties, and charges, or any taxes imposed on, or regarding, Service Provider's income, revenues, gross receipts, personnel, or real or personal property or other assets.
- Intellectual Property.
3.1 Service Provider assigns to the Company, Service Provider's entire right, title, and interest in any invention, technique, process, device, discovery, improvement, or know-how, whether patentable or not, hereafter made or conceived solely or jointly by Service Provider while working for or on behalf of the Company, which relate to, is suggested by, or results from matters set out in any active Statement of Work and depends on either: (a) Service Provider's knowledge of Confidential Information (as defined in Section 6) it obtains from the Company or (b) the use of Company equipment, supplies, facilities, information, or materials.
3.2 Service Provider shall disclose any such invention, technique, process, device, discovery, improvement, or know-how promptly to the Company. Service Provider shall, upon request of the Company, promptly execute a specific assignment of title to the Company and do anything else reasonably necessary to enable the Company to secure for itself, patent, trade secret, or any other proprietary rights in the United States or other countries. It shall be conclusively presumed that any patent applications relating to a Statement of Work, related to trade secrets of the Company, or which relate to tasks assigned to Service Provider by the Company, which Service Provider may file within one year after termination of this Agreement, shall belong to the Company, and Service Provider hereby assigns same to the Company, as having been conceived or reduced to practice during the term of this Agreement.
3.3 All writings or works of authorship, including, without limitation, program codes or documentation, produced or authored by Service Provider in the course of performing services for the Company, together with any associated copyrights, are works made for hire and the exclusive property of the Company. To the extent that any writings or works of authorship may not, by operation of law, be works made for hire, this Agreement shall constitute an irrevocable assignment by Service Provider to the Company of the ownership of and all rights of copyright in, such items, and the Company shall have the right to obtain and hold in its own name, rights of copyright, copyright registrations, and similar protections which may be available in the works. Service Provider shall give the Company or its designees all assistance reasonably required to perfect such rights.
- Confidentiality. All non-public, confidential or proprietary information of the Company ("Confidential Information") disclosed by the Company to Service Provider, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential," in connection with this Agreement is confidential, solely for Service Provider’s use in performing this Agreement and may not be disclosed or copied unless authorized by the Company in writing. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Service Provider’s breach of this Agreement; (b) is obtained by Service Provider on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) Service Provider establishes by documentary evidence, was in Service Provider’s possession prior to the Company's disclosure hereunder; or (d) was or is independently developed by Service Provider without using any Confidential Information. Upon the Company's request, Service Provider shall promptly return all documents and other materials received from the Company. The Company shall be entitled to injunctive relief for any violation of this Section 4.
- Term, Termination, and Survival.
5.1 This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services under all Statements of Work unless sooner terminated pursuant to Sections 5.2 and 5.3.
5.2 Company, in its sole discretion, may terminate this Agreement or any Statement of Work, in whole or in part, at any time without cause, and without liability except for required payment for services rendered, and reimbursement for authorized expenses incurred, prior to the termination date, by providing at least 30 days' prior written notice to Service Provider.
5.3 Either Party may terminate this Agreement, effective upon written notice to the other Party (the "Defaulting Party"), if the Defaulting Party: (a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach or (b) becomes insolvent or inability to pay its debts generally as they become due.
5.4 Upon expiration or termination of this Agreement for any reason, Service Provider shall promptly: (a) deliver to Company all documents, work product, and other materials, whether or not complete, prepared by or on behalf of Service Provider in the course of performing the Services for which Company has paid, (b) return to Company all Company-owned property, equipment, or materials in its possession or control, (c) deliver to Company, all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on Company's Confidential Information, (d) provide reasonable cooperation and assistance to Company upon Company's written request in transitioning the Services to an alternate service provider (e) on a pro rata basis, repay all fees and expenses paid in advance for any Services which have not been provided, (f) permanently erase all of Company's Confidential Information from its computer systems, or (g) certify in writing to Company that it has complied with the requirements of this Section
5.5 The rights and obligations of the Parties set forth in this Section 5, Section 3, Section 4, Section 6, Section 7, Section 12, Section 19, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
- Independent Contractor.
6.1 It is understood and acknowledged that the Services which Service Provider will provide to Company hereunder shall be in the capacity of an independent contractor and not as an employee or agent of the Company. Service Provider shall control the conditions, time, details, and means by which Service Provider performs the Services. The Company shall have the right to inspect the work of Service Provider as it progresses solely for the purpose of determining whether the work is completed according to the applicable Statement of Work.
6.2 Service Provider has no authority to commit, act for or on behalf of the Company, or to bind the Company to any obligation or liability.
6.3 Service Provider shall not be eligible for and shall not receive any employee benefits from Company and shall be solely responsible for the payment of all taxes, FICA, federal and state unemployment insurance contributions, state disability premiums, and all similar taxes and fees relating to the fees earned by Service Provider hereunder.
- Indemnification. Service Provider shall indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by Indemnified Party in a final judgment (collectively, "Losses"), arising out of or resulting from any claim of a third party or Company arising out of or occurring in connection with Service Provider's negligence, willful misconduct, or breach of this Agreement. Service Provider shall not enter into any settlement without Company's or Indemnified Party's prior written consent.
- Limitation of Liability. The Company's liability for damages concerning the performance or non-performance by the Company in relation to this Agreement, and regardless of whether the claim for such damages is based in contract, tort, strict liability, or otherwise, is limited those fees paid/payable to Service Provider for the 12-month period before such incident giving rise to liability. In no event shall the Company be liable for any indirect, incidental, special, punitive or consequential damages, lost data, or lost profits, even if the Company has been advised to the possibility of such damages.
9.1 If the Service Provider violates any provision of this Agreement, the Company shall, in addition to any damages to which it is entitled, be entitled to seek immediate injunctive relief against the Service Provider prohibiting further actions inconsistent with the Service Provider's obligations under this Agreement.
9.2 In the event Service Provider fails to satisfactorily perform any of the Services on a timely basis, the Company shall have the right, without prejudice to any other rights or remedies it may have under this Agreement or any applicable Statement of Work, to take one or more of the following steps: (a) suspend Service Provider's right and obligation to complete its performance of the Services until such time as the Service Provider is able to demonstrate to the Company's reasonable satisfaction that it can satisfactorily meet its obligations under this Agreement; (b) Itself provide and/or engage a replacement service provider to provide any or all of the delayed or unsatisfactory Services, (c) assign one or more of its representatives to supervise and work with the Service Provider to correct and mitigate the effects of the Service Provider's breach (d) withhold payment of any amounts otherwise due to the Service Provider in a sufficient amount to set off against any damages caused to the Company as a consequence of the Service Provider's breach.
9.3 Except for a breach of Section 4, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. Despite the previous sentence, the Parties intend that the Service Provider's exclusive remedy for Company's payment breach shall be its right to damages equal to its earned but unpaid fees.
- Insurance Requirements. Service Provider will maintain during the entire term of this Agreement, at its own expense, the types of insurance coverage specified below, on standard policy forms and with insurance companies with at least an A.M. Best Rating of A- VII authorized to do business in the jurisdictions where the Service Provider Services are to be performed.
10.1 Workers’ Compensation insurance prescribed by applicable local law and employers liability insurance with limits not less than $1,000,000 per accident/per employee. This policy shall include a waiver of subrogation against Company.
10.2 Business Automobile Liability covering all vehicles that Service Provider owns, hires or leases with a limit of no less than $1,000,000 (combined single limit for bodily injury and property damage) for each accident.
10.3 Commercial General Liability insurance including Contractual Liability Coverage, with coverage for products liability, completed operations, property damage and bodily injury, including death, with an aggregate limit of no less than $2,000,000. This policy shall name Company as an additional insured with respect to the provision of services provided under this Agreement. This policy shall include a waiver of subrogation against Company.
10.4 Technology Professional Liability Errors & Omissions policy (which includes Cyber Risk coverage and Computer Security and Privacy Liability coverage) with a limit of no less than $10,000,000 per occurrence and in the aggregate.
10.5 Crime policy with a limit of no less than $5,000,000 per occurrence and in the aggregate.
10.6 Excess Liability/Umbrella coverage with a limit of no less than $9,000,000 per occurrence and in the aggregate (such limit may be achieved through increase of limits in underlying policies to reach the level of coverage shown here). This policy shall name Company as an additional insured with respect to the provision of services provided under this Agreement. This policy shall include a waiver of subrogation against Company.
- Compliance with Law and Company Code of Conduct. Service Provider is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Service Provider has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Service Provider is in compliance with and shall comply with Company’s Code of Conduct located at the following link: https://digital.ai/code-conduct.
- Security Requirements. Service Provider agrees to use industry standard technical and organizational measures to secure all Confidential Information. Service Provider must, to the extent applicable, abide by the Company’s security policies, including but not limited to (a) the Endpoint Security Policy and Standards, (2) the Code Repository Security Standards, and (3) the Information Classification Policy. Service Provider will require all individuals responsible for completing Services under this Agreement to complete annual security and compliance training consistent with industry standard best practices.
- Entire Agreement. This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement between the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a "Notice", and with the correlative meaning "Notify") must be in writing and be delivered by personal delivery, nationally recognized overnight courier, certified or registered mail (in each case, return receipt requested, postage prepaid), or electronic mail.
- Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Amendments. No amendment to, or modification of Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
- Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Assignment. Service Provider shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this Section 19 shall be null and void. No assignment or delegation shall relieve the Service Provider of any of its obligations hereunder. Company may at any time assign or transfer any or all of its rights or obligations under this Agreement without Service Provider's prior written consent.
- Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
- No Third-Party Beneficiaries. This Agreement benefits solely the Parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, confers on any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
- Choice of Law. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware.
- Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
- Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such Party's (the "Impacted Party") failure or delay is caused by or results from the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency; and (g) other similar events beyond the reasonable control of the Impacted Party. Notwithstanding the foregoing, Service Provider's financial inability to perform, changes in cost or availability of materials, components or services, market conditions, or supplier actions or contract disputes will not excuse performance by Service Provider under this Section 21.