1.  Service. Untitled shall provide to Client its software as a service (the “Service”) that includes Untitled’s platform (“Platform”) as set out in one or more statements of work to be issued by Client and accepted by Untitled (each, a “Statement of Work”), attached hereto as Exhibit A. Untitled will make the Service available to Client for the Subscription Term, as defined below, solely for use by Client and its authorized users (“Users”) in accordance with the terms and conditions of this Agreement, the documentation, and the Statement of Work.

 

2. Client Obligations. Client shall:

(a) Respond promptly to any reasonable requests from Untitled for instructions, information, or approvals required by Untitled to provide the Service.

(b) Cooperate with Untitled in its performance of the Service and provide reasonable access to Client’s premises, employees, contractors, and equipment as required to enable Untitled to provide the Service.

(c) Take all steps necessary, including obtaining any required licenses or consents, to prevent Client-caused delays in Untitled’s provision of the Service.

 

3. Fees and Expenses.

3.1 In consideration of the provision of the Service by Untitled and the rights granted to Client under this Agreement, Client shall pay the fees in accordance with the Statement of Work (See Exhibit A). All undisputed invoices shall be paid within thirty (30) days of receipt of an invoice by the Client. Payment terms shall be in accordance with the fee schedules provided in Exhibit A.

3.2 Client shall reimburse Untitled for all reasonable pre-approved expenses incurred in accordance with the Statement of Work, within thirty (30) days of receipt by the Client of an invoice from Untitled accompanied by receipts or other reasonable supporting documentation.

3.3 Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder.

3.4 Except for invoiced payments that the Client has successfully disputed, all late payments shall bear interest at the lesser of the rate of 2% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall also reimburse Untitled for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Untitled does not waive by the exercise of any rights hereunder), Untitled shall be entitled to suspend the provision of any Service if the Client fails to pay any undisputed amounts when due hereunder and such failure continues for ten (10) business days following written notice thereof.

 

4. Limited Warranty

4.1 Untitled warrants that it shall perform the Service and provide the Platform:

(a) In accordance with the terms and subject to the conditions set out in the Statement of Work and this Agreement.

(b) Using personnel of industry-standard skill, experience, and qualifications.

(c) In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.

(d) In accordance with all applicable state and federal data security regulations.

4.2 In the event of a breach by Untitled:

(a) Untitled shall use commercially reasonable efforts to promptly cure any such breach; provided, that if Untitled cannot cure such breach pursuant to Section 7.3, Client may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 7.3. and receive a pro-rata refund of fees paid.

(b) The foregoing remedy shall not be available unless Client provides written notice of such breach within sixty (60) days after delivery of such Service or Deliverable to Client.

4.3 UNTITLED MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 4.1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.

 

5. Intellectual Property. The parties understand and agree that this is a work for hire arrangement. Any and all Intellectual Property, excluding exceptions contained below, but inclusive of proprietary: code, analytical models, algorithms, applications, Client specific system architecture, documentation and programs shall at all times remain the property of Client (“Intellectual Property”). Untitled makes no claim to any customized Intellectual Property created, used, or otherwise assembled into Client specific patterns and design to produce the end-deliverables in this development project and/or the final work product itself (“Custom Extension”). To the extent necessary, Untitled agrees to execute any and all documentation necessary to ensure that all Intellectual Property is and remains the property of Client.

5.1 Custom Extensions is defined as what is created, and/or has the possibility of being created, only through the collective manifestation and alignment of Client’s specific ideas, relationships and knowledge capital, and Untitled’s subject matter expertise garnered in Client’s space and made possible through access to confidential information provided by Client, and realized through building a unique solution at Client’s request from this encompassing definition.

5.2 Client recognizes that Untitled is an independent business, with its own Intellectual Property, and has many work for hire arrangements with other clients, as well a proprietary technology platform and ecosystem of products and services encompassing Untitled’s overall business offering. Therefore, Intellectual Property warrants, unless definable and tangibly represented as Proprietary to Client, will not keep Untitled from conducting their normal business activities, or activities related to creating their own unique and proprietary platform.

5.3 Nothing represented in this Agreement shall be interpreted as an assignment of Intellectual Property by Untitled or by Client, unless definable as proprietary in nature and constructed through services rendered by Untitled on behalf of Client.

5.4 Client shall own all proprietary trademarks, service marks, ideas, unique processes, original designs, application/source code, documentation repositories, unique system/data architecture patterns and forms, analytical models, Client’s owned or licensed data and metadata, slogans, plans, logs, promotional materials or any other property furnished by Client to Untitled during the term of this Agreement. These proprietary assets shall be and remain the exclusive property of the Client.

5.5 Untitled shall own all proprietary: trademarks, service marks, ideas, tools, processes, designs, application/source code, documentation repositories, templated and unique system/data architecture patterns and forms, analytical models, Untitled’s owned or licensed data and metadata, slogans, plans, logs, promotional materials or any other property furnished by Untitled to Client during the term of this Agreement. These proprietary assets shall be and remain the exclusive property of Untitled.

5.6 Custom Extensions developments that are clearly definable as proprietary assets of Client developed through services rendered by Untitled shall be documented and appended to this agreement throughout the duration of this agreement as an exhibit to reflect the mutual promises and understandings of the parties.

 

6. Client Data.

(a) Client owns any data, meta-data information, or material originated or provided by Client that Client submits, collects, or provides under this Agreement, including but not limited personal information and information about Client’s customers and metadata surrounding the Client’s customers, users, or opted in records, segments and detailed primary and tertiary transactional information (“Client Data“). Client shall also own all data and information generated through the provision of the Service by Untitled under this Agreement (“Platform Service Data”). Untitled shall own all right, title, and interest in and to all de-identified transactional and performance data generated by the Platform and Untitled’s monitoring of the performance of the Platform. This does not limit Untitled from using and/or applying internal identification and classification information tagging and/or associative mapping systems for the records received through the Platform or Service, inclusive of, and for the purpose of, building relational data schemes, record level attribute arrays, segmented or partitioned categorical data and information hierarchies, and aggregated data repositories for advanced analytics and/or statistical computation and learning model(s) inputs, training data, any and all meta data inputs and outputs of aforementioned models and repositories, or other use-cases in a compliant and/or anonymous de-identified form and protected facet and/or safe harbor methods for commercial, and research and development purposes.

(b) Untitled has no ownership rights in or to Client Data or Platform Service Data; however Client grants to Untitled an unlimited, irrevocable, license to use, display, reproduce, monetize through abstraction of de-identified data and record metadata (“Metadata”), and create derivative works from the Client Data and Metadata in anonymized or aggregated form and the Platform Service Data for any purpose, including its own commercial purpose. Client is solely liable for Client Data and ensuring it does not constitute infringement of a third-party right and ensuring it is not in conflict with applicable rules, regulations, laws, or legislation. Client is also solely liable for ensuring the authenticity, accuracy and manner of capture and publication of Client Data.

 

7. Confidentiality.  From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 6; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.

If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements, but only if such notice is legally permitted, so as to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 6 only, “Receiving Party’s Group” shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, agents, attorneys and accountants.

 

8. Term, Termination, and Survival.

8.1   This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Service under all Statements of Work unless sooner terminated pursuant to Section 8.2, 8.3 or 8.4. Client has the right to a) opt-in for additional twelve (12) months of Service 30-days prior to Agreement expiration, or b) opt-in month-to-month 30-days prior to Agreement expiration (“Subscription Term”).

8.2   Either Party may terminate this Agreement at any time for convenience effective upon not less than thirty (30) days prior written notice to the other Party, provided that if Untitled terminates this Agreement for convenience, it shall refund to the Client a pro-rata portion of fees paid.

8.3   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 fifteen (15) days after receipt of written notice of such breach; or

(b) (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

8.4    Notwithstanding anything to the contrary in Section 8.3(a), Untitled may terminate this Agreement before the expiration date of the Term on written notice if Client fails to pay any amount when due hereunder: (a) and such failure continues for ten (10) business days after Client’s receipt of written notice of nonpayment; or (b) more than two times in any twelve (12) month period.

8.5    The rights and obligations of the Parties set forth in this Section 9.5 and in Sections 5 (Intellectual Property), 7 (Confidentiality), 9 (Limitation of Liability) and 10 (Indemnification), 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.

 

9. Limitation of Liability.

9.1   IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT UNTITLED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

9.2   EXCEPT FOR DAMAGES ARISING OUT OF A BREACH OF CONFIDENTIALITY OR DATA SECURITY, IN NO EVENT SHALL A PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO UNTITLED PURSUANT TO THE APPLICABLE STATEMENT OF WORK.

 

10. Joint Indemnification. Untitled agrees to indemnify, defend and hold harmless the Client and its affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, attorneys and accountants and assigns from and against any and all losses, liabilities, damages, and penalties and all related costs and expenses (including reasonable attorneys’ fees) related to claims made by third parties against Client arising from Untitled’s breach of any covenant, agreement, representation or warranty made in this Agreement.

Client agrees to indemnify, defend and hold harmless Untitled and its affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, attorneys and accountants and assigns from and against any and all losses, liabilities, damages, and penalties and all related costs and expenses (including reasonable attorneys’ fees) related to claims made by third parties against Untitled: (a) arising from Client’s breach of any covenant, agreement, representation or warranty made in this Agreement; or (b) alleging that consulting services infringe the patents, copyrights, trademarks or service marks or other Intellectual Property rights of such third parties.

Each party agrees to promptly notify the indemnifying party in writing of any indemnifiable claim. The indemnified party shall cooperate in all reasonable respects with the indemnifying party and its attorneys in the investigation, trial, defense and settlement of such claim and any appeal arising therefrom. The indemnified party may participate in such investigation, trial, defense and settlement of such claim and any appeal arising therefrom, through its attorneys or otherwise, at its own cost and expense. No settlement of a claim that involves a remedy other than the payment of money by the indemnifying party shall be entered into without the consent of the indemnified party, unless the settlement includes an unconditional general release of the indemnified party which consent will not be unreasonably withheld.

 

11. Entire Agreement. This Agreement, including and together with any related Statements of Work or Addendum, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, regarding such subject matter. The Parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work, the terms and conditions of this Agreement shall supersede and control.

 

12. 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 addressed to the other Party at its address set forth below its signature on this Agreement (or to such other address that the receiving Party may designate from time to time in accordance with this Section 10).

 

13. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, 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.

 

14. Amendments. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement, and executed by an authorized representative of each Party.

 

15. 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.

 

16. Assignment. Both Parties shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent from the other Party, except for an assignment to a purchaser of all or substantially all of a Party’s assets.

 

17. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.

 

18. Relationship of the Parties. The relationship between the Parties is that of independent contractors.

 

19. No Third-Party Beneficiaries. Except as provided in Section 8, this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assignees and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

 

20. Governing Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of Delaware and the Parties agree to the exclusive jurisdiction of the state and federal courts located in Louisville, Kentucky, each party waiving any right to assert forum non-conveniens.

 

21. 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.

 

22. Publicity. Neither Party may publicly refer to or use the name or logo of the other Party without the prior written approval of such other Party.