Master Services Agreement
Last Updated: April 20, 2023
By executing an Order Form or SOW that references or incorporates this Master Services Agreement (the “MSA”) Customer (defined below) accepts and agrees to be bound by the terms of this MSA as of the effective date of the initial Order Form or SOW (“Effective Date”) entered between Aiwyn, Inc., a Delaware corporation with offices at 2923 S. Tryon Street, Unit #200, Charlotte, NC 28203 ("Aiwyn") and Customer (each of Aiwyn and Customer, a “Party” and collectively, the "Parties"). Should a conflict or inconsistency arise between an Order Form or SOW and this MSA, the provisions of the Order Form or SOW shall control but only with respect to the Services or Order covered under such Order Form or SOW. In consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Parties agree as follows:1. DEFINITIONS.
“Aggregate Data” means aggregated statistics and/or data created or derived by Aiwyn from Customer Data or the provision of the Services; provided, however, that such Aggregate Data will not identify Customer or any individual user.
"Agreement” means the MSA together with all SOWs and Order Forms entered into by Parties under the MSA.
“Confidential Information” has the meaning set forth in Section 8
"Customer" means the legal entity that executes an Order Form or SOW with Aiwyn.
“Customer Data” shall mean electronic data and information submitted or provided by or on behalf of the Customer under this Agreement.
“Documentation” shall mean Aiwyn’s standard user manuals and/or related documentation provided by Aiwyn to Customer or generally made available to Customers by Aiwyn in connection with the Application and Services under this Agreement.
“Order Form” means Aiwyn's standard form of order form, as executed by both Parties, that incorporates this Agreement and sets forth the SaaS and related Services to be ordered, the applicable restrictions, if any and/or any other relevant information relating to the Services; additional terms for Services including without limitation, the term and fees; if applicable the schedule of payments for the performance of any services; and any unique additional terms.
"Renewal Term" means the renewal term of a Service Period for an applicable Order Form as stated in such Order Form.
“SaaS” means the Software applications hosted by and made available by Aiwyn under a software as a service offering.
“Services” means the services made available by Aiwyn pursuant to one or more Order Form(s) or Statement(s) of Work, which may include but not be limited to any SaaS, support, or professional services.
"Service Period" means the period of time as set forth in the applicable Order Form for such Order Form.
"Service Period Initial Term" means the initial term of a Service Period for an applicable Order Form as stated in such Order Form.
"Software" means Aiwyn's proprietary intelligence-based billing software solution.
“Statement of Work” or "SOW" means Aiwyn's standard form of statement of work, as executed by both Parties, that incorporates this Agreement and sets forth certain professional services to be performed and any other relevant information relating to such professional services, including without limitation, the term and fees; if applicable the schedule of payments for the performance of any services; and any unique additional terms.
“Tax(es)” means any and all sales, use, gross receipts, environmental, ad valorem, or excise tax or any other similar taxes, fees, duties, or charges of any kind imposed by any governmental taxing authority on any amounts payable by Customer under this Agreement, and any related penalties and interest; exclusive, however, of any taxes, assessments, or other levies imposed on Aiwyn's income or capital (including leased or purchased property, equipment, or software), any franchise taxes, any taxes in lieu of net income taxes, and any other direct taxes imposed on Aiwyn.
“Term” means the period during which this Agreement remains in force and effect in accordance with Section 13.1.
II. GENERAL. This Agreement contains the terms and conditions governing the legal relationship between Aiwyn and Customer relating to the mutual covenants and obligations of the Parties set forth herein. Aiwyn's provision of the Services are subject to the terms and conditions set forth in this MSA and in the applicable Order Form or Statement of Work.
III. SAAS SERVICES
3.1 Orders. The Services to be provided by Aiwyn under this Agreement will be set forth in one or more Order Form(s) or Statement(s) of Work executed by the Parties. Each Order Form or Statement of Work includes a description of the applicable Services, the costs associated with such Services, the schedule of payments for the performance or provision of such Services, and any unique additional terms. Each Order Form or Statement of Work entered into by Parties is hereby incorporated into this MSA by reference.
3.2 Provision of Access. Subject to the terms and conditions contained in this Agreement, Aiwyn hereby grants to Customer a limited non-exclusive, non-transferable, non-sublicensable, revokable right to access the features and functions of any SaaS ordered pursuant to an Order Form in accordance with the scope of intended use and any restrictions set forth on the applicable Order Form (“Permitted Uses”) and solely during the period of time as set forth in the Order Form for the particular SaaS.
3.3 Responsibility for Application and Content Hosting. Aiwyn shall, at its own expense, provide for the hosting of the Software, which is accessible as part of the SaaS, provided that nothing herein shall be construed to require Aiwyn to provide for, or bear any responsibility with respect to, the development, or with respect to any telecommunications or computer network hardware required by Customer to provide access from the Internet to the SaaS.
3.4 Audit Rights. During the Term, Aiwyn shall have the right to audit Customer's usage of and logs in the SaaS and related Services as necessary to verify Customer's compliance with the terms of the Agreement, including Customer's compliance with the Stripe Terms. Customer agrees to provide reasonable cooperation in such audits where requested by Aiwyn.
IV. CUSTOMER RESPONSIBILITIES
4.1 Access to Services. Aiwyn will provide Customer access and allow Customer use of the features and functions of the SaaS and related Services in accordance with this Agreement. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Aiwyn promptly of any such actual or suspected unauthorized use known to Customer.
4.2 Customer Responsibility for Data and Security. Customer shall have access to the Customer Data and shall be responsible for all changes to and deletions of Customer Data and the security of all passwords and other access protocols required in order to access the Services. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
4.3 Usage Restrictions. Customer shall use the Services only for Permitted Uses and shall not: (i) use the Services to send any form of duplicative and unsolicited messages, other than marketing and promotional messages to Customer members, customers and prospective members and customers as contemplated by the Service; (ii) harvest, collect, gather or assemble information or data regarding other users without their consent using the Services; (iii) transmit through or post on the Service unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors; (iv) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs using the Services; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (vi) attempt to gain unauthorized access to the Service, computer systems or networks related to the Service; (vii) interfere with another user’s use and enjoyment of the Service; (viii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Services are compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such code; (ix) create any derivative product from any of the foregoing; (x) allow third parties to gain access to the Services; or (xi) use the Services in violation of any applicable laws, statutes, regulations or rules.
4.4 Suspension of Service. If Customer fails to pay undisputed amounts in accordance this Agreement or breaches any provision of Section 4.3, Aiwyn shall have the right, in addition to any of its other rights or remedies, to immediately suspend the Services to Customer, without liability to Customer until such amounts are paid in full or such breach is cured (in Aiwyn's sole discretion), as applicable.
4.5 Receipt of Funds. Customer is solely responsible for setting its pricing and fees and the legality of all charges invoiced to its clients (including any pass through or credit card processing fees). If applicable to the Services provided under this Agreement, Customer hereby authorizes Aiwyn and its subcontractors to receive funds on behalf of Customer through Stripe. Customer hereby directs Aiwyn, to provide for the processing through the Services and Stripe for the benefit of Customer, net of fees and other amounts as may be referenced as payable to or subject to setoff by Aiwyn hereunder.
4.6 Deduction Amounts. Customer acknowledges and agrees that as between Aiwyn and Customer, Customer shall be solely responsible for all refunds, chargebacks, third-party chargeback fees, and Aiwyn fees related to the foregoing (“Deduction Amounts”) related to payments processed for or on behalf of Customer, and that in no event shall Aiwyn be responsible in any way for such Deduction Amounts.
4.7 Direction to Pay. Customer hereby directs and authorizes Aiwyn to deduct and to retain from any amount otherwise payable, all Deduction Amounts. Except as otherwise may be expressly provided in a written instrument executed by Aiwyn, Customer further directs and authorizes Aiwyn to cause any Deduction Amounts to be charged or withdrawn through any payment method or account Customer has provided, including by deducting such amounts from the Customer’s account balance. As provided in the Stripe Terms, Stripe will have the right to deduct from the Customer account balance Stripe’s fees (including those Stripe fees that are included in Deduction Amounts), and all other Deduction Amounts. If Customer’s Stripe account balance becomes negative, Customer authorizes and directs Stripe to debit (and Aiwyn to cause to be debited) the amount owed from Customer’s Payout Account (as defined in the Stripe Services Agreement).
4.8 Responsibility for Disputes. Customer acknowledges and agrees that transactions conducted via the Services are conducted between the applicable Customer clients and Customer, and not with Aiwyn as a principal. Customer acknowledges and agrees that it is solely responsible for the resolution of disputes between Customer and its clients.
V. PROFESSIONAL SERVICES
5.1 Issuance of Statements of Work. Customer may request that Aiwyn perform professional or other services by delivering a written request describing the proposed services. Aiwyn shall prepare a Statement of Work based on such requested services, and once executed, such Statement of Work will be incorporated into this Agreement. Such Statement of Work shall describe the services, fees, costs and expenses payable by Customer to Aiwyn in connection with the performance of such services. Customer, within five (5) business days after receipt of the proposed Statement of Work, shall notify Aiwyn of its acceptance of such Statement of Work. Until mutual acceptance in writing of the proposed Statement of Work, Aiwyn shall have no obligation to perform the proposed services, provided that this Agreement shall remain in full force and effect in accordance with Section 13.1. Each Statement of Work, regardless of whether it relates to the same subject matter as any previously executed Statement(s) of Work, shall become effective upon execution by authorized representatives of both Parties.
5.2 Change Request. Customer may at any time request a modification to the Services to be performed pursuant to any particular Statement of Work by written change request to Aiwyn specifying the desired modifications. Aiwyn shall, within a reasonable time following receipt of such request, submit an estimate of the cost for such modifications and a revised estimate of the time for performance of the Services pursuant to the Statement of Work. If accepted in writing by Customer, such modifications in the Statement of Work shall be performed under the terms of this Agreement. Modifications in any Statement of Work shall become effective only when a written change request is executed by authorized representatives of both Parties.
VI. PROPRIETARY RIGHTS
6.2 Ownership of Services. Customer acknowledges that Aiwyn and its licensors own all right, title, and interest, including all patent, copyright, trade secret, trademark, moral rights, mask work rights, and other intellectual property rights (“Intellectual Property Rights”) in and to the Services (including all components thereof), and Documentation and Aiwyn expressly reserves all rights not expressly granted to Customer in this Agreement. Customer shall not engage in any act or omission that would impair Aiwyn's or its licensors’ Intellectual Property Rights in the Services, and any other materials, information, processes or subject matter proprietary to Aiwyn. Customer further acknowledges that Aiwyn retains the right to use the foregoing for any purpose in Aiwyn's sole discretion.
6.3 Feedback. If Customer or any of its employees or contractors makes any suggestions, enhancement requests, recommendations or other feedback (“Feedback”) about the Services, Aiwyn is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Aiwyn on Aiwyn's behalf, and on behalf of its employees, contractors or agents, all right, title, and interest in, and Aiwyn is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Aiwyn is not required to use any Feedback.
VII. FEES AND PAYMENTS
7.1 Fees Payable. Customer will pay to Aiwyn the fees for the Services set forth on the applicable Order Form or Statement of Work, in accordance with the payment schedule set forth thereon.
7.2 Rate Increases. Due to the nature of the Services, Customer understands and acknowledges that Customer’s annual revenue increases impact the cost of providing the Services. To account for increases in costs including but not limited to the foregoing, the parties agree that after the initial 12 months of Service Period set forth in the applicable Order Form or Statement of Work, and annually thereafter, the pricing under the Order Form or Statement of Work will be increased by one-half (1/2) of the Firm’s “Percentage Increase to Customer’s Top-Line Annual Revenues over preceding 12 months” plus the 12-month percentage increase to the U.S. Bureau of Labor’s Consumer Price Index: https://www.bls.gov/charts/consumer-price-index/consumer-price-index-by-category.htm. Where the applicable Order Form or Statement of Work has discounted pricing, the percentage increase will be calculated based on discounted prices, and not the list prices. Example:
Percentage Increase to Customer’s Top-Line Annual Revenues over the preceding 12 months
Percentage Increase to Aiwyn’s Fees for the Subsequent 12 months of the Service Period
5%, plus the 12-month percentage increase to the US Bureau of Labor’s Consumer Price Index (linked above)
The “Percentage Increase to Customer’s Top-Line Annual Revenues over preceding 12 months” will be calculated using publicly-accessible data provided by InsidePublicAccounting (http://insidepublicaccounting.com/top-firms/ipa-500/), or by using data provided by Customer if Customer’s revenues are not listed publicly in InsidePublicAccounting.
7.3 Disputed Charges. Customer must notify Aiwyn in writing of any dispute or disagreement with invoiced charges within fifteen (15) days from the earlier of: (a) the date of invoice or (b) Customer becoming aware of any breach by Aiwyn or non-fulfillment of Services. Absent such notice, Customer shall be deemed to have agreed to the charges as invoiced after the expiration of such time period.
7.4 Late Payments; Interest. Aiwyn reserves the right to charge, and Customer agrees to pay, a late charge equal to the lesser of one point five percent (1.5%) per month or the maximum permitted by law, on any amount that is not the subject of a good faith dispute and remains unpaid on the due date. All payments to be made under this Agreement shall be made in U.S. Dollars.
7.5 Taxes. All prices and fees provided for under this Agreement are exclusive of Taxes. Customer shall be solely responsible for the timely and full payment of all Taxes arising from the payment of fees under this Agreement. Where Aiwyn is remitting Tax payments to the governmental taxing authority, Aiwyn's invoices to the Customer will include the applicable Taxes. Where a governmental taxing authority imposes Taxes, and such Tax payments were not previously collected by Aiwyn from the Customer for any reason, Customer shall either: (a) immediately upon notice to Customer by Aiwyn, pay Aiwyn the Taxes due in order for Aiwyn to remit to the governmental taxing authority; or (b) remit the Tax payments directly to the governmental taxing authority and provide Aiwyn with the official receipts, or provide such other evidence as Aiwyn may reasonably request, to establish that the Taxes have been paid.
8.1 Definition and Exceptions. “Confidential Information” means any information disclosed by the disclosing Party (“Discloser”) to the receiving Party (“Recipient”) pursuant to this Agreement that is: (a) marked or designated as “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature; or (b) otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure under this Agreement or by the nature of the information itself. Confidential Information may include information of a third party that is in the possession of Discloser and is disclosed to Recipient under this Agreement. Without limiting the foregoing, the Software and databases of Aiwyn (including any data models and data contained therein that are not specific to Customer) shall constitute Confidential Information of Aiwyn. Confidential Information will not, however, include any information that: (i) was publicly known or made generally available without a duty of confidentiality prior to the time of disclosure by Discloser to Recipient; (ii) becomes publicly known or made generally available without a duty of confidentiality after disclosure by Discloser to Recipient through no wrongful action or inaction of Recipient or its employees, directors, officers, managers, agents or professional advisers (collectively, “Representatives”); (iii) is in the rightful possession of Recipient without confidentiality obligations at the time of disclosure by Discloser to Recipient as shown by Recipient’s then-contemporaneous written files and records kept in the ordinary course of business; (iv) is obtained by Recipient from a third party without an accompanying duty of confidentiality without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Discloser’s Confidential Information, as shown by written records and other competent evidence prepared contemporaneously with such independent development.
8.2 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the Disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the Disclosing Party or such third party, as applicable, and shall remain the sole property of the Disclosing Party or such third party.
8.3 Confidentiality Obligations. Each Party shall hold the Confidential Information of the other party in strict confidence. In addition, the Recipient shall adhere to industry best practices for securing the Confidential Information of the Discloser so as to reasonably ensure that such Confidential Information is not lost, stolen or otherwise used, modified or accessed by any unauthorized person. The Recipient shall have the limited right to use the Confidential Information only for the purpose of fulfilling its commitments and obligations to the Discloser under this Agreement and for no other purpose. Except as permitted in the foregoing sentence or by prior written consent of the Discloser, the Recipient shall not use, disclose or distribute to any person, firm or entity any Confidential Information and shall not permit any person, firm or entity to use, disclose or distribute any Confidential Information; provided that the Receiver may disclose or distribute such Confidential Information to the following: (a) its officers, employees and directors who have a business need to know such Confidential Information; and (b) its attorneys, accountants, consultants, agents, independent contractors or professional advisors (the “Receiving Party Agents”) who (i) have a business need to know such Confidential Information and (ii) are subject to fiduciary, professional or written obligations of confidentiality substantially similar to, and no less restrictive than, the obligations set forth herein. The Recipient shall be responsible for ensuring that the Receiving Party Agents comply with the terms of this Agreement and shall remain ultimately responsible for the use, disclosure or distribution of Confidential Information by the Receiving Party Agents. Any failure by the Receiving Party or Receiving Party Agents to comply with the terms hereof shall constitute a material breach of this Agreement by the Recipient. Except in connection with the purposes identified above, the Recipient shall not copy or otherwise reproduce, or permit to be copied or otherwise reproduced, all or any part of Confidential Information without the prior written consent of the Discloser.
8.4 Compelled Disclosure. If Recipient or its Representative becomes legally compelled to disclose any Confidential Information, other than pursuant to a confidentiality agreement, Recipient or its Representative will provide Discloser prompt written notice, if legally permissible, and will use its best efforts to assist Discloser in seeking a protective order or another appropriate remedy. If Discloser waives compliance with this Agreement or fails to obtain a protective order or other appropriate remedy, Recipient or its Representative will furnish only that portion of the Confidential Information that is legally required to be disclosed, provided that any Confidential Information so disclosed will maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
9.1 Mutual Representations and Warranties. Each Party represents and warrants to the other that: (i) the execution and performance of this Agreement does not and shall not violate any other contract, obligation, or instrument to which it is a party, or which is binding upon it, including terms relating to covenants not to compete and confidentiality obligations; (ii) it will comply and will require its Representatives to comply, with all applicable federal, state, and local data protection laws and regulations in the maintenance, disclosure, and use of all Personal Information (as defined under the applicable state law, or Personal Data as defined under the General Data Protection Regulation 2016/679 (GDPR) where applicable) contained in any Confidential Information that is disclosed to the Receiving Party or its representatives hereunder; and (iii) it has implemented and will continue to maintain no less than commercially reasonable information security protocols to secure and protect the confidentiality of the Confidential Information in the Recipient’s or its Representatives’ possession or control.
9.2 Aiwyn Representations and Warranties. Aiwyn represents and warrants that it will provide the Service under this Agreement in a commercially reasonable manner substantially consistent with general industry standards.
9.3 Customer Warranty. Customer represents and warrants that Customer Data does not and will not: (i) violate or infringe the rights of any third party, including copyrights, trademark rights, patent rights, or rights of privacy or publicity of any person; (ii) misappropriate any trade secret; (iii) be deceptive, defamatory, obscene, pornographic or unlawful; or (iv) otherwise violate the rights of a third party.
9.4 No Other Warranties. EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT, THE SERVICES, INCLUDING THE SAAS, PROVIDED BY AIWYN ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND AIWYN EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY ADDITIONAL OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, NON-INTERFERENCE, VALUE OR ACCURACY OF DATA, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY AIWYN ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. AIWYN DOES NOT WARRANT THAT THE SERVICES OR ANY OTHER INFORMATION, MATERIALS, OR TECHNOLOGY PROVIDED UNDER THIS AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. AIWYN MAKES NO GUARANTEE, WARRANTY, REPRESENTATION OR CONDITION REGARDING ANY SERVICES. CUSTOMER ACKNOWLEDGES THAT AIWYN'S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF CUSTOMER ONLY. AIWYN'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. AIWYN IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
X. LIMITATION OF LIABILITY
10.1 LIMITATIONS TO INDIRECT DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, EVEN IF AIWYN OR CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
10.2 LIABILITY CAP. THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE TO AIWYN BY CUSTOMER UNDER THE APPLICABLE ORDER FORM OR STATEMENT OF WORK IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM GIVING RISE TO THE LIABILITY AROSE.
10.3 EXCLUSIONS TO LIMITATIONS AND HIGHER CAPS. THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO: (I) A PARTY’S GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT; (II) CUSTOMER’S MISAPPROPRIATION OR INFRINGEMENT OF AIWYN'S INTELLECTUAL PROPERTY; (III) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS; (IV) A BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS OR VIOLATION OF LAWS, FOR WHICH THE CUMULATIVE LIABILITY WILL NOT EXCEED TWO (2) TIMES THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO AIWYN UNDER THE AGREEMENT; (V) CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE AGREEMENT FOR WHICH THE CUMULATIVE LIABILITY WILL NOT EXCEED THE AGGREGATE AMOUNT PAID OR PAYABLE UNDER THE AGREEMENT AND REASONABLE ATTORNEYS’ FEES AND COSTS; OR (VI) CUSTOMER’S VIOLATION OF SECTION 4.3 (USAGE RESTRICTIONS), FOR WHICH THE CUMULATIVE LIABILITY WILL NOT EXCEED TWO (2) TIMES THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO AIWYN UNDER THE AGREEMENT, UNLESS SUCH VIOLATION AMOUNTS TO MISAPPROPRIATION OR INFRINGEMENT FOR WHICH LIABILITY SHALL BE UNLIMITED.
10.4 THESE LIMITATIONS OF LIABILITY ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
10.5 Essential Basis. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this
Agreement, including without limitation, the economic terms, would be substantially different.
11.1 Indemnification by Aiwyn.
(a) Aiwyn shall defend, indemnify, and hold Customer harmless from and against all losses, costs and expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from or arising out of a third party claim that the Services expressly authorized under this Agreement infringes or misappropriates, as applicable, any U.S. patent issued as of the Effective Date or any copyrights or trade secrets under applicable laws of any jurisdiction within the United States. In the event that Customer elects to require Aiwyn to provide defense for such claim(s), Customer agrees to give Aiwyn (i) prompt written notice of such claim; (ii) authority to control and direct the defense and/or settlement of such claim; and (iii) such information and assistance as Aiwyn may reasonably request, at Aiwyn's expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Aiwyn shall not settle any third-party claim against Customer unless such settlement completely and forever releases Customer with respect thereto or unless Customer provides its prior written consent to such settlement. In any action for which Aiwyn provides defense on behalf of Customer, Customer may participate in such defense at its own expense by counsel of its choice. Notwithstanding the foregoing, Aiwyn shall have no obligation or liability to the extent that the alleged infringement arises from (i) the Customer Data; (ii) modifications to the Services, which modifications are made by Customer or at Customer’s direction without Aiwyn's consent; (iii) Customer’s failure to use updates to the Services where such updates were previously provided by Aiwyn and Customer was directed by Aiwyn to apply such updates; (v) Customer's breach of the Stripe Terms; or (v) use of the Services except in accordance with any applicable user documentation or specifications (circumstances under the foregoing clauses (i) through (v), collectively, “Customer Indemnity Responsibilities”).
(b) Upon the occurrence of a claim for which indemnity is or may be due under this Section 11.1, or in the event that Aiwyn believes in good faith that such a claim is likely, Aiwyn may, at its option, and upon reasonable advance, written notice to Customer: (i) appropriately modify the Services so that it becomes non-infringing, or substitute functionally equivalent software or services; or (ii) obtain a license to the applicable third-party intellectual property rights. The obligations set forth in this Section 11.1 shall constitute Aiwyn's entire liability and Customer’s sole remedy for any actual or alleged infringement or misappropriation.
11.2 Indemnification by Customer. Customer shall indemnify, hold harmless, and, at Aiwyn's option, defend Aiwyn from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from any claim by any third party arising from or in connection with (i) Customer Indemnity Responsibilities, (ii) Customer’s breach or alleged breach of any of its representations or warranties under this Agreement or (iii) any third party claim that any Customer Data violates, infringes or misappropriates such third party’s intellectual property rights or other legal rights. In the event that Aiwyn elects to require Customer to provide defense for such claim, Aiwyn agrees to give Customer (i) prompt written notice of such claim; (ii) authority to control and direct the defense and/or settlement thereof; and (iii) such information and assistance as Customer may reasonably request, at Customer’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Customer shall not settle any third-party claim against Aiwyn unless such settlement completely and forever releases Aiwyn with respect thereto or unless Aiwyn provides its prior written consent to such settlement. In any action for which Customer provides defense on behalf of Aiwyn, Aiwyn may participate in such defense at its own expense by counsel of its choice.
11.3 Duty to Notify. The Recipient will promptly notify the Discloser upon discovery of any unauthorized disclosure of the Confidential Information of the Discloser.
XII. DISPUTE RESOLUTION.
12.1 Dispute Resolution. Parties shall first attempt to resolve any disputes arising out of this Agreement by negotiation of Party representatives at the senior executive levels. If the Parties are unable to resolve the dispute by negotiation, the Parties shall attempt resolution by mediation with a neutral third-party mediator acceptable to both Parties. Mediation expenses will be shared equally by the Parties.
12.2 Applicable Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH, AND SHALL BE GOVERNED BY, THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT GIVING EFFECT TO ITS RULES REGARDING CONFLICTS OF LAWS. CUSTOMER AGREES THAT ANY AND, EXCEPT AS PROVIDED FOR IN SECTION 12.1 ABOVE, ALL CAUSES OF ACTION BETWEEN THE PARTIES ARISING FROM OR IN RELATION TO THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS LOCATED WITHIN FAIRFAX COUNTY, VIRGINIA.
12.3 Causes of Action. No action arising from or related to this Agreement may be brought by either Party more than two (2) years after the cause of action has accrued, except that an action for non-payment may be brought within two (2) years after the date such amount was due.
XIII. TERM AND TERMINATION
13.1 Term. Unless earlier terminated in accordance with this Section 13, the term of this Agreement will commence on the Effective Date and will continue until the termination or expiration of all Order Forms and Statements of Work entered hereunder. The term for each Order Form and SOW shall be as stated in such Order Form and SOW.
13.2 Termination for Cause. Either Party may terminate this Agreement immediately upon written notice in the event that the other Party materially breaches this Agreement and thereafter (i) in the case of material breach resulting from non-payment of amounts due hereunder, has failed to pay such amounts within ten (10) days after receiving written notice thereof; or (ii) has failed to cure any other material breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party) within thirty (30) days after receiving written notice thereof; or (b) where Parties are unable to enter into a timely amendment after a material modification as provided for in Section 15 (Modifications).
13.3 Termination Upon Bankruptcy, Insolvency, Etc. Either Party may, at its option, terminate this Agreement immediately upon written notice to the other Party, in the event (i) that the other Party becomes insolvent or unable to pay its debts when due; (ii) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other Party discontinues it business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other Party’s creditors.
13.4 Termination Charge. In addition to all its other obligations under this Agreement, in the event the Agreement, Service, or Order Form is terminated by Aiwyn due to Customer’s breach, or the Customer seeks to terminate early for any reason other than for cause under 13.2 or 13.3, Customer shall owe Aiwyn a termination charge (“Termination Charge”) of an amount equal to, as of the effective date of termination, one hundred percent (100%) of all remaining fees due that would have been incurred and payable to Aiwyn by Customer for the remainder of the Service Period Initial Term or then current Renewal Term for each such Service or Order Form, as applicable. Such amount shall be payable as provided for in Section 13.7 (Effect of Termination).
CUSTOMER ACKNOWLEDGES THAT THE TERMINATION CHARGE SET FORTH IN THIS SECTION IS A REASONABLE ESTIMATE OF DAMAGES TO BE SUFFERED BY AIWYN AS A RESULT OF THE TERMINATION OF A SERVICE OR AN ORDER, WHICH AMOUNTS ARE IMPOSSIBLE OR EXTREMELY DIFFICULT TO ASCERTAIN, AND THAT SUCH TERMINATION CHARGE IS NOT INTENDED AS A PENALTY BUT AS LIQUIDATED DAMAGES.
13.5 Accrued Obligations. Termination of this Agreement shall not release the Parties from any liability which, at the time of termination, has already accrued or which thereafter may accrue with respect to any act or omission before termination, or from any obligation which is expressly stated in this Agreement to survive termination. Notwithstanding the foregoing, the Party terminating this Agreement as permitted by any provision in this Section 13 shall incur no additional liability merely by virtue of such termination.
13.6 Cumulative Remedies. Termination of this Agreement, regardless of cause or nature, shall be without prejudice to any other rights or remedies of the Parties and shall be without liability for any loss or damage occasioned thereby.
13.7 Effects of Termination. Termination or expiration (including due to nonrenewal of a Service Period) of an Order Form terminates all Service Periods covered under such Order Form. Upon any termination or expiration of this Agreement, Service, or Order Form, Customer shall: (a) immediately discontinue all use of the applicable Service, (b) promptly pay to Aiwyn all amounts due and remaining payable hereunder including unpaid fees through the effective date of termination or expiration and all applicable Termination Charges. In addition, upon termination of this Agreement, each Party shall (i) immediately discontinue all use of the other Party’s Confidential Information; (ii) delete the other Party’s Confidential Information from its computer storage or any other media, including, but not limited to, online and off-line libraries; and (iii) shall destroy all copies of such other Party’s Confidential Information then in its possession. Within thirty (30) business days after the effective date of any termination of this Agreement, Aiwyn shall make available to Customer a comma-separated text file of Customer Data. After such thirty (30) day period, Aiwyn shall have no obligation to maintain or provide any Customer Data to Customer.
13.8 Survival of Obligations. The provisions of Sections 6, 8, 9.3, 10, 11, 12, 13.4 - 13.8, and 16, as well as Customer’s obligations to pay any amounts due and outstanding hereunder, shall survive termination or expiration of this Agreement.
(a) Upon the execution of the Agreement and except in the event of a termination of the Agreement pursuant to Section 13 above, Customer will allow Aiwyn, at Aiwyn's discretion, to list the Customer’s name and logo on Aiwyn's website as a user of Aiwyn and its Services.
(b) Within 30 days of the Effective Date, Customer will allow Aiwyn, at Aiwyn's discretion, to publish a press release announcing the Customer’s selection of Aiwyn and its Services. Aiwyn's press release will not be published without the prior written consent of
the Customer, which shall not be unreasonably withheld.
XV. MODIFICATIONS. Aiwyn has the right to modify the terms of this MSA at any time, solely with prospective effect, and to change, delete, discontinue, or impose conditions on use of the Services by posting the modified terms or changes at https://www.aiwyn.ai/master-services-agreement (pw: “aiwyn_customer_#”). Aiwyn will provide Customer with notice of any changes via email at the email address linked to Customer's account, by posting on Customer's account, or through other reasonable means. The modifications shall come into effect 30 days after Aiwyn posts the changes. Customer's continued use of the Services more than 30 days after Aiwyn publishes any such changes constitutes Customer's acceptance of the terms of the modified MSA; provided however, for any modifications that have a material impact on the Customer, Customer may send a notice of objection to the modification ("Objection Notice") in writing (email to suffice) within such 30 day period, and Parties shall make good faith efforts to find mutually agreeable terms related to the proposed modification and enter into a written amendment signed by both Parties reflecting the mutually agreed upon terms. Where Parties are unable to find mutually agreeable terms and enter into said amendment within 45 days from Customer's Objection Notice despite both Parties' good faith efforts, either Party may terminate this Agreement in accordance with Section 13.2. Customer's continued use of the Services more than 30 days after Aiwyn publishes any modifications or changes without sending an Objection Notice during such 30 days constitutes Customer's acceptance of the terms of the modified MSA. Customer can access a copy of the current terms of this MSA on Aiwyn's website at any time. Customer can find out when this MSA was last changed by checking the “Last Updated” date at the top of the MSA. Except as stated above, no other amendment to a SOW, Order Form, or this MSA shall be valid unless such amendment is made in writing and is signed by the authorized representatives of the Parties.
16.2 Force Majeure. Aiwyn shall be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of God, fire, strike, embargo, pandemic, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of Aiwyn (collectively, “Force Majeure Event”). Wherever possible, in the event of a Force Majeure Event, Aiwyn shall use efforts to perform its obligations on a modified schedule, mutually agreed upon by the Parties. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances, subject to good faith consultation between the Parties and mutual approval.
16.3 Notices. All notices required by or relating to this Agreement shall be in writing and shall be sent by means of certified mail, nationally recognized courier service, or overnight mail to the Parties to the Agreement and addressed to the addresses as set forth on the applicable Order Form or Statement of Work, with a copy sent to the email address for notices provided in the applicable Order Form or Statement of Work or other address designated in writing by Parties for notices. Such notices shall be deemed given five (5) business days if sent by certified mail, and within two (2) business days if sent by courier service or overnight mail.
16.4 Assignment. Customer shall not assign its rights or delegate its obligations under this Agreement without Aiwyn's prior written consent, and, absent such consent, any purported assignment or delegation by Customer shall be null, void and of no effect. This Agreement shall be binding upon and inure to the benefit of Aiwyn and Customer and their successors and permitted assigns.
16.5 Independent Contractors. Customer and Aiwyn acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the Parties are acting as independent contractors in making and performing this Agreement.
16.6 Waiver. No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder shall not be deemed a waiver of that right.
16.7 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement shall not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
16.8 No Third-Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, shall confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
16.9 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Aiwyn, or any products utilizing such data, in violation of the U.S. export laws or regulations.
16.10 U.S. Government End-Users. Each of the components that constitute the Aiwyn Services is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and/or “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Aiwyn Services with only those rights set forth herein.
16.11 Anti-Corruption. Each Party agrees that it has not received or been offered any illegal or improper bribe, kickback, payment gift, or thing of value from any employee or agent of the other Party in connection with this Agreement. If either Party learns of any violation of the above restriction, such Party will promptly notify the other Party.
16.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one Agreement.
16.13 Headings. The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.
16.14 Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties shall be bound by any conditions, inducements or representations other than as expressly provided for herein.