AI4SP LLC Microsite Terms of Service

Last Updated: March 8, 2024

This Services Agreement (“Agreement”) dated as of the date of the SOW signed by both parties (“Effective Date”) is entered into between AI4SP LLC, a Washington limited liability company (“Company”), and the party signing the SOW (“Client”). The parties agree as follows:

1. SERVICES & PAYMENT

Company will provide services in the form of fully managed microsites for Client as the parties may agree from time to time (“Services”) pursuant to each statement of work (“SOW”) entered into hereunder. The parties shall execute an SOW and shall specify the nature and timing of the Services, the compensation to be charged and paid for such Services, and other matters the parties consider appropriate. Each SOW shall be considered a separate agreement between the parties thereto. Amendments to a SOW (i.e., a change order) shall be made and entered into in the same manner as the original SOW. The terms “Company” and “Client” as used in this Agreement mean such party or the controlled or controlling affiliates or subsidiaries (each an “Affiliate”) of such party that execute the applicable SOW.

Client shall make available to Company Client’s data, resources, documentation, and other information reasonably requested by Company to enable it to perform the Services.

Services are billed upfront for Services to begin unless otherwise specified in the SOW and are non-refundable.

2. DURATION AND TERMINATION

This Agreement shall commence on the Effective Date and shall terminate as defined in the signed SOW.

If in either party’s reasonable judgment there is a material change in the scope, duration, requirements, assumptions or dependencies described in a SOW, the parties shall negotiate an appropriate change order or SOW addendum in good faith and on commercially reasonable terms which shall be memorialized in a mutually executed change order or SOW addendum (collectively, “Change Order”).

Upon termination or expiration of this Agreement or any SOW, Company shall cease performing all related Services.

3. WARRANTIES

Company warrants to Client that Company’ performance of the Services, to its knowledge, does not violate any applicable law, rule, or regulation.

Company warrants to Client that Company has sufficient authority and rights, except for rights respecting data and materials provided by Client or identified by Company as being furnished to Client by third-party vendors, to grant and convey the rights granted to Client under Section 4.

WITH THE EXCEPTION OF THOSE EXPRESS WARRANTIES MADE IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

4. OWNERSHIP

All Services provided by the Company for the Client use Intellectual Property created by the Company, which is protected by United States copyright laws and shall be deemed the property of the Company.

For purposes of this Agreement, the term “Intellectual Property Rights” means: (i) copyrights and other rights associated with works of authorship; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, collected non-PII data, and other industrial property rights, and all improvements thereto; and (v) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force.

Company retains all right, title, and interest in its know-how, ideas, concepts, procedures, routines, techniques, methods, systems, processes, models, templates, data, algorithms, tools, generalized features of the structure, sequence, and organization of software, user interfaces, screen designs and the like, and any enhancements made to the foregoing, whether used in developing or incorporated in Services (collectively, “Company Property”).

Company shall have the nonexclusive, irrevocable, perpetual, royalty-free right to use and otherwise exploit for any and all purposes the general knowledge, skills, collected data, and experience that are developed in the course of, or learned as a result of, the provision of Services (collectively, “Residuals”), provided that Residuals shall not include any information that is the Client’s Confidential Information.

5. LIABILITIES AND REMEDIES FOR INFRINGEMENT.

Company shall indemnify, hold harmless and defend Client from and against any and all claims, liabilities, losses, expenses (including reasonable attorneys’ fees), fines, penalties, taxes or damages (collectively “Liabilities”) asserted by any third party against Client to the extent such Liabilities result from the infringement by the Deliverables (including any Company Property contained therein) of any third party’s patents issued as of the date of the applicable SOW, trade secrets, trademarks or copyrights. The foregoing provisions shall not apply to any infringement to the extent arising out of: (i) use of the Deliverables other than in accordance with applicable documentation or instructions supplied by Company or for other than Client’s internal business purposes; (ii) any alteration, modification or revision of the Deliverables not expressly authorized in writing by Company; (iii) the combination of the Deliverables with materials not supplied by Company; or (iv) programs, data and materials identified by Company in the SOW as being furnished to Client by third-party vendors.

In case any of infringement by the Deliverables as described in Section 5.1, or in Company’ reasonable opinion is likely to be held, in any such third party claim or suit to constitute infringement, Company may within a reasonable time, at its option, either: (i) secure for Client the right to continue the use of such infringing item; or (ii) replace, at Company’ sole expense, such item with a substantially equivalent non-infringing item or modify such item so that it becomes non-infringing. In the event Company is, in Company’ reasonable discretion, unable to perform either of the options described in clauses (i) and (ii) above, Client shall return the allegedly infringing item to Company, and Company’ sole liability shall be to refund to Client the amount paid to Company for such item; provided that the foregoing shall not be construed to limit Company’ indemnification obligation set forth in Section 6.1 above.

The provisions of this Section 5 state Company’ entire liability and Client’s sole and exclusive remedies with respect to any infringement or claim of infringement.

6. LIMITATIONS OF LIABILITY; INDEMNIFICATION.

Except for the respective indemnification obligations of Client and Company set forth in this Agreement, the liability of Client and Company to one another, on account of any actions, damages, claims, liabilities, costs, expenses or losses in any way arising out of or relating to this Agreement or the Services performed under a SOW shall be limited to the amount of fees paid or owing to Company under the applicable SOW. The provisions of this Section shall apply regardless of the form of action, damage, claim, liability, cost, expense, or loss asserted, whether in contract, statute, tort (including but not limited to negligence) or otherwise.

IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST PROFITS, LOST SALES OR ANTICIPATED ORDERS, OR DAMAGES FOR LOSS OF DATA OR GOODWILL, EVEN IF A PARTY WAS INFORMED OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.

EACH PARTY’S RESPECTIVE LIABILITY ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE DAMAGES THEORY, SHALL NOT EXCEED THE FEES STATED IN THE SOW THAT RELATED TO SUCH LIABILITY. THE FOREGOING LIMITATION SHALL NOT APPLY TO A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS OR LIMIT A PARTY’S INDEMNIFICATION OBLIGATION WITH RESPECT TO A THIRD PARTY CLAIM OR TO CLIENT’S PAYMENT OBLIGATIONS UNDER OR TO CLIENT’S PAYMENT OBLIGATIONS UNDER SECTION 1.

Company shall indemnify, hold harmless and defend Client from and against any and all Liabilities asserted by any third party against Client for physical injury to, illness or death of, any person or persons regardless of status, and damage to or destruction of any tangible property to the extent such Liabilities result from the negligence or willful misconduct of Company or its personnel. Client shall indemnify, hold harmless and defend Company from and against any and all Liabilities asserted by any third party against Company for physical injury to, illness or death of, any person or persons regardless of status, and damage to or destruction of any tangible property to the extent such Liabilities result from the negligence or willful misconduct of Client.

The party entitled to indemnification under Section 5.1 or this Section 6 (the “Indemnified Party”) shall promptly notify the party obligated to provide such indemnification (the “Indemnifying Party”) of any claim for which the Indemnified Party seeks indemnification hereunder and the Indemnifying Party shall have the exclusive right and authority to conduct the defense or settlement of any such claim at the Indemnifying Party’s sole expense and the Indemnified Party shall cooperate with the Indemnifying Party in connection therewith. The party not conducting the defense shall nonetheless have the right to participate in such defense at its own expense. The Indemnified Party shall have the right to approve the settlement of any claim that imposes any liability or obligation other than the payment of money damages by the Indemnifying Party.

7. DISPUTE RESOLUTION

The parties will use their reasonable efforts to resolve any dispute, claim, or controversy (a “Dispute”) arising out of or relating to this Agreement through good faith negotiation in the spirit of mutual cooperation. Either party’s project manager (“Notifying Party”) may give the other party’s project manager (“Noticed Party”) written notice of a Dispute (for this purpose, email notice is sufficient). Within fifteen (15) days after delivery of such notice, the Noticed Party will submit to the Notifying Party a written response. The notice and the response will include (a) a statement of the delivering party’s position and a summary of arguments supporting that position, and (b) the names and titles of the persons representing the delivering party who will participate in such discussions. Such representatives shall include an executive who is at a higher level of management than the person with direct responsibility for administration of this Agreement. Within fifteen (15) days after delivery of the Noticed Party’s notice, the executives of both parties will confer at a mutually acceptable time and place to attempt to resolve the Dispute. Unless otherwise agreed in writing by the negotiating parties, the above-described negotiation shall end at the close of the first meeting of executives described above. Such closure shall not preclude continuing or later negotiations, if desired. All negotiations and documents exchanged pursuant to this section are confidential and inadmissible for any purpose, in any legal proceeding involving the parties; provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation. If the parties are unable to resolve the Dispute through negotiation, then the Dispute will be submitted to JAMS or its successor for non-binding mediation in Seattle, Washington before a single mediator. The parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith and that they will share equally in its costs. Any Dispute that cannot be resolved through mediation, any action to collect undisputed amounts due, and any Dispute with respect to which a party is claiming equitable relief, shall be brought in and resolved by a court of competent jurisdiction.

This Agreement is governed by the laws of the State of Washington, without regard to its conflicts of law rules.

To the extent permitted by applicable law, the parties irrevocably waive any right to trial by jury in any legal proceeding arising from or relating to this Agreement.

8. GENERAL

Neither party may assign any part or all of this Agreement, or subcontract or delegate any of such party’s rights or obligations under this Agreement, without the other party’s prior written consent, which shall not be unreasonably withheld, provided that Client hereby consents to Company subcontracting all or part of the Services to an affiliated entity of Company, and provided further, that, either party may, upon notice to the other party, assign this Agreement in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets or any similar transaction, provided that such affiliate or successor in interest agrees to assume such party’s obligations under this Agreement. Any attempt to assign or delegate in violation of this subsection is void in each instance.

Notices under this Agreement are sufficient if given by nationally recognized overnight courier service, certified mail (return receipt requested), facsimile or electronic email with electronic confirmation or personal delivery, if to Client, to such party at the address below Client’s signature line, and if to Company, to Company LLC at the address below Company’ signature line, Attn. Business & Legal Affairs. Notice is effective: (i) when delivered personally, (ii) three business days after sent by certified mail, (iii) on the business day after sent by a nationally recognized courier service, or (iv) on the business day after sent by facsimile or electronic email with electronic confirmation to the sender. A party may change its notice address by giving notice in accordance with this section.

A late charge of three percent (3%) per month will be added to the balance of the undisputed portion of each Company invoice remaining unpaid after the due date. Client will also pay all reasonable costs incurred by Company to collect amounts due, including reasonable attorneys’ fees, whether or not litigation is commenced.

If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall not be affected or impaired.

A party does not waive any right under this Agreement by failing to insist on compliance with any term of this Agreement or by failing to exercise any right hereunder. Any waiver granted hereunder is effective only if it is written and signed by the party granting such waiver. A waiver of any provision of this Agreement shall not imply a subsequent waiver of that or any other provision of this Agreement.

The rights and remedies of the parties under this Agreement are cumulative, and either party may enforce any of its rights or remedies under this Agreement or other rights and remedies available to it at law or in equity.

The section headings of this Agreement are for convenience only and have no interpretive value. This Agreement and any SOW may be executed by the parties in one or more counterparts by manual or electronic signature or by use of one or more physical or electronic copies that are either physically delivered or electronically transmitted, all of which, when taken together, constitute one and the same original of the Agreement.

The rights and obligations of a party which by their nature must survive termination or expiration of this Agreement in order to achieve its fundamental purposes shall survive any termination of this Agreement.

NO ACTION, REGARDLESS OF FORM, ARISING FROM THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER DELIVERY OF THE SERVICE THAT WOULD BE THE SUBJECT MATTER OF SUCH ACTION.

Neither party will be liable to the other for any delay or failure to perform if that delay or failure results from an unforeseeable cause beyond its reasonable control. This provision shall in no way impair either party’s right to terminate this Agreement under Section 2.

This Agreement, together with each SOW and the NDA (if any), constitutes the complete and final agreement of the parties pertaining to its terms and the subject matter hereof, and supersedes the parties’ prior agreements, understandings and discussions relating to the Services. No modification of this Agreement or any SOW is binding unless it is in writing and signed by Client and Company. In the event of any conflict or inconsistency between a provision in this Agreement and in a SOW, the provision in this Agreement will govern unless the SOW clearly intends to override the related provision in this Agreement, in which case such provision in the SOW shall apply but only with respect to that SOW. Terms included in a party’s purchase or sales order or similar document shall not apply to this Agreement or any SOW.

The language used in this Agreement is the product of the parties’ efforts. Each party hereby irrevocably waives the benefits of any rule of contract construction that disfavors the drafter of a contract or the drafter of specific words in a contract.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date, as per signatures and dates in the appropriate SOW.