This Sully.ai Master Services Agreement (the “Agreement”) is entered into between Odiggo Inc. dba Sully.ai (“Sully.ai” or “Provider”) and the purchasing party (“Purchaser”). In this Agreement, Purchaser and Sully.ai are each referred to as a “party” and collectively as the “parties.” This Agreement includes and incorporates an Order Form, as well as the below Terms and Conditions.  

1. Order Forms. All Order Forms signed by the parties will be governed by this Agreement and must include a description of the Service and details regarding any technical support services or Setup Services to be provided by Sully.ai to Purchaser. 

2. Provision of Service.

   1. Generally. Sully.ai will provide the Service in accordance with this Agreement. Purchaser may access and use the Service for its business purposes worldwide. Purchaser may extend its rights to its affiliates and to contractors acting on Purchaser’s or its affiliates’ behalf if Purchaser remains responsible for their compliance. 

   2. Restrictions. Purchaser will not: (a) use the Service except as permitted in this Agreement; (b) decompile, disassemble, or reverse engineer the underlying software to the Service (unless this restriction is not permitted under applicable law); (c) sell, rent, lease or use the Service for time sharing purposes; (d) remove any copyright or proprietary notices contained in the Service, or (e) modify, translate, or create derivative works based on the Service or any Software (except to the extent expressly permitted by Sully.ai or authorized within the Service or Software).

   3. Technical Support. Sully.ai will provide Purchaser, at no additional charge, technical support services for the Service.

   4. Acceptance. Purchaser will accept or reject the Service in accordance with the acceptance criteria specified in the applicable Order Form or, if none is specified, then according to Purchaser’s reasonable satisfaction. If the Service does not meet the warranties or criteria of this Agreement or an Order Form, Purchaser may: (a) require Sully.ai to correct, at no cost to Purchaser, any defective or nonconforming item; or (b) correct the defective or nonconforming item itself and charge Sully.ai for the cost of the correction. 

   5. Reservation of Rights. Except as expressly set forth herein, this Agreement does not grant: (a) Sully.ai any Intellectual Property Rights in Purchaser Data; or (b) Purchaser any Intellectual Property Rights in the Service.

3. Licenses. Sully.ai hereby grants to Purchaser and its affiliates during the Term a limited non-exclusive license to use the Software solely in connection with the Service and in accordance with this Agreement. This license is non-transferable, irrevocable, non-sublicensable, and will be fully paid up upon Purchaser’s payment of the fees.

4. Payment. 

   1. Amount. Purchaser will pay the fees specified in Order Forms signed by Purchaser.

   2. Renewals. Purchaser is not obligated to enter into renewals. Unless otherwise specified on an Order Form, following the Initial Service Term or a Renewal Service Term, the subscription to the Service will automatically renew, unless either party gives the other written notice of termination at least thirty days prior to the expiration of the then-current Service term.

   3. Invoices. Unless otherwise stated in an Order Form, Sully.ai will invoice Purchaser for the Service monthly in arrears, and Purchaser will pay Sully.ai within thirty business days of receipt of a correct and undisputed invoice. Unpaid invoices will accrue a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Services.

   4. Taxes. Any and all fees specified in this Agreement are exclusive of sales, excise, VAT, GST or similar taxes. Sully.ai agrees to invoice and Purchaser agrees to pay applicable sales, use, VAT, GST or similar taxes excluding taxes based solely on Sully.ai’s franchise, net income or similar taxes.

   5. Tax Withholding. If Purchaser is required to withhold Withholding Taxes, Purchaser will do so and will make these payments. Any Withholding Taxes paid by Purchaser to the tax authority will be deducted from the amount due to Sully.ai, such that the amount paid to Sully.ai will be net of the Withholding Taxes. Upon Sully.ai’s request, Purchaser shall provide Sully.ai with a copy of the tax receipt or tax certificate for the Withholding Tax paid. 

5. Confidential Information. 

   1. Use and Nondisclosure.  Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Confidential Information. The Receiving Party will hold Confidential Information in strict confidence and treat that information with the same degree of care as it uses in dealing with its own confidential information, but no less than a reasonable degree of care. The Receiving Party agrees not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information.   The Receiving Party may share Confidential Information with its employees, directors, agents, or third-party contractors who need to know it and if they have agreed with either party in writing to terms at least as restrictive as those in this Agreement. Other than as allowed in the preceding sentence, the Receiving Party will not disclose or make Confidential Information available to any third party, except as specifically authorized by the Disclosing Party in writing. 

   2. Required Disclosure. The Receiving Party may disclose Confidential Information when compelled to do so by law, but only if it: (a) promptly provides prior notice to the Disclosing Party and an opportunity for the Disclosing Party to seek a protective order; and (b) discloses only the minimum amount of Confidential Information that is necessary to comply with the required disclosure.

   3. Return. Upon the Disclosing Party’s written request, the Receiving Party will promptly return all Confidential Information and copies, or certify in writing that it has destroyed all such materials. 

   4. Section 1833 Notice. Consistent with 18 U.S.C.§ 1833(b), the parties have the right to: (a) confidentially disclose trade secrets to federal, state and local Government Officials, or to any attorney, for the sole purpose of reporting or investigating a suspected violation of the law; and (b) disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public disclosure. Nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or to create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C.§ 1833(b).

6. Security. 

   1. General. During the term of this Agreement, Sully.ai will: (a) maintain appropriate, industry-standard technical and organizational measures to protect any data and information (the “Security Requirements”), including personal data, that it collects, accesses, processes or receives from Purchaser under the terms of this Agreement against unauthorized or unlawful transfer, processing or alteration and against accidental access, loss, damage, processing, use, transfer or destruction; and (b) comply with the Security Requirements.

   2. Security Incidents. 

      1. Notification and Timing. In the event of a breach, Sully.ai will promptly notify Purchaser in writing of any security incident within seventy-two hours of Sully.ai becoming aware of the security incident. This notification is required even if Sully.ai has not conclusively established the nature or extent of the security incident. Sully.ai will not communicate with any third party regarding a security incident except as specified by Purchaser, or as required by law. 

      2. Required Information. Sully.ai will describe the known details of the incident, the status of Sully.ai’s investigation, and, if applicable, the potential number of persons affected. Sully.ai will be solely responsible for all costs associated with any security incident, which includes, if applicable, for notices to and credit monitoring for affected individuals 

7. Data Transfer. Sully.ai will: (a) comply with all laws relating to privacy and data protection; (b) process any Personal Data transferred to or collected by Sully.ai (i) only as a data processor, as these terms are defined in the  EU General Data Protection Regulation (2016/679), on behalf of Purchaser, and (ii) for the limited and specific purpose of performing Sully.ai’s obligations under the Agreement; (c) comply with Purchaser’s instructions regarding processing of any Personal Data; and (d) comply with the Data Processing Addendum.

8. Term and Termination. 

   1. Term. This Agreement will remain in effect for the Term indicated in the Order Form, and as renewed on an automatic annual basis unless 30 days’ notice is given by either party.

   2. Termination. 

      1. For Breach. Either party may terminate this Agreement if the other party fails to cure any material breach of this Agreement within thirty days after written notice of breach. If Purchaser terminates this Agreement for Sully.ai’s breach, Sully.ai will promptly issue Purchaser a pro-rata refund to Purchaser of any prepaid but unused fees for the terminated period. 

      2. Of an Order Form. Unless an Order Form states otherwise, Purchaser may modify or terminate any Order Form if it provides notice within 90 days of the Start Date of the applicable Order Form. If Purchaser terminates an Order Form other than for Sully.ai’s breach, Purchaser will pay Sully.ai the fees due under the Order Form for Services accepted in accordance with the Order Form as of the effective date of termination.

   3. Effect of Termination. 

      1. Generally. Unless otherwise specified in the termination notice, termination is effective immediately. Each party will return the other party’s Confidential Information or destroy it and certify its destruction. Termination of this Agreement terminates all outstanding Order Forms. Except where an exclusive remedy may be specified, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

9. Representations and Warranties

   1. General. Each party represents and warrants to the other that it has full right and power to enter into and perform under this Agreement, without any third-party consents or conflicts with any other agreement.

   2. By Purchaser. Purchaser represents, covenants, and warrants that Purchaser will use the Services only in compliance with Sully.ai’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Although Sully.ai has no obligation to monitor Purchaser’s use of the Services, Sully.ai may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

   3. By Sully.ai. Sully.ai represents and warrants: 

      1. Performance Warranty. The Service will be of professional quality and performed consistently with generally accepted industry standards. Sully.ai will provide the Service in accordance with its generally published specifications, and any applicable Order Form. However, Sully.ai does not warrant that the services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND Sully.ai DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

      2. Compliance with Laws. The Service and Sully.ai’s performance hereunder will comply at all times with all applicable laws, regulations, including Data Protection Laws, and Purchaser’s Supplier Code of Conduct in its performance under the Agreement and provision of the Services. Sully.ai will comply with all applicable employment and occupational health and safety laws and regulations including those related to employment practices, performance management discipline, wages, unfair dismissal, and worker classification. 

      3. No Virus. Use of the Service and any Deliverables will not introduce into any Purchaser Systems any viruses, worms, time bombs, Trojan horses or other harmful, malicious, or destructive code.

      4. No Additional Terms. Use of the Service and any Deliverables, including any installed software provided as part of the Service to Purchaser, shall not subject Purchaser to any third party terms or conditions.

      5. No Infringement. To the best of Sully.ai’s knowledge, the Service, and Purchaser’s use thereof, does not and will not infringe, violate, or misappropriate the intellectual property rights of any third party.

      6. Tax Compliance. Sully.ai will comply with all tax laws, including tax withholding requirements, social security taxes, federal, state and local income taxes, unemployment, workers’ compensation, and disability insurance, health care and other charges, and tax filings and payments on compensation received hereunder. Sully.ai will assume full and sole responsibility for Sully.ai’s compensation and expenses.

   4. Remedy of Defects. If Purchaser reports a breach of the Performance Warranty, Sully.ai will, at no charge, correct or repair the Service so that it conforms to the Performance Warranty. If Sully.ai does not cause the Service to operate as warranted within ten days after Purchaser’s notice, then Purchaser may terminate this Agreement and Sully.ai will refund to Purchaser any prepaid fees for the terminated period and for the period in which the Service did not meet the warranty. 

   5. Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT AND ANY ORDER FORM, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

10. Mutual Indemnification. Each party will defend, indemnify, and hold harmless the other party, its officers, directors, employees, and affiliates from and against any and all damages, liabilities, and expenses (including settlement costs and reasonable attorneys’ fees) incurred by the party arising from any third party claims related to: (a) an allegation that the Service or any Deliverables infringes or misappropriates any third-party’s rights, including Intellectual Property Rights; (b) Sully.ai’s and its subcontractor’s or Purchaser’s breach of warranty, negligence, willful misconduct, fraud, misrepresentation, violation of law; (c) any obligation imposed by law on Purchaser to pay any withholding taxes, social security, unemployment or disability insurance, or similar items in connection with compensation received by Sully.ai under this Agreement;  (d) any property damage, personal injury or death related to Sully.ai’s and its subcontractor’s performance of the Service; (e) Sully.ai’s failure to provide necessary notices and obtain necessary consents to grant the rights to Purchaser for Services and Deliverables hereunder; or (f) any claim or action that arises from an alleged violation of Sully.ai’s standard published policies then in effect or otherwise from Purchaser’s use of the Services. 

11. Limitation of Liability.

    1. Limitation on Indirect Liability. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES HOWEVER ARISING WHETHER OR NOT THAT PARTY WAS AWARE OF THE POSSIBILITY OF THOSE DAMAGES AND DESPITE THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED IN THIS AGREEMENT.

    2. Limitation on Amount of Liability. NEITHER PARTY’S LIABILITY ARISING OUT OF THIS AGREEMENT WILL EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE TO Sully.ai UNDER THIS AGREEMENT. 

12. Disputes.

    1. Informal Resolution. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party. If a dispute is not resolved within thirty days of notice, Sully.ai or Purchaser may bring a formal proceeding.

    2. Filing a Claim. Either party may bring a lawsuit in the federal or state courts of San Francisco County, California solely for injunctive relief to stop unauthorized or inappropriate use of Confidential Information or infringement of Intellectual Property Rights without first engaging in the informal dispute notice process described above. For other claims, either party may bring a lawsuit in the federal or state courts of San Francisco County, California after following the information dispute notice process described above. Both Sully.ai and Purchaser consent to venue and personal jurisdiction there.

13. Miscellaneous.

    1. Entire Agreement. This Agreement supersedes any prior agreements or understandings between the parties. This Agreement, including all Order Forms, constitutes the entire Agreement between the parties related to this subject matter, and any change to its terms must be in writing and signed by the parties. If the terms of this Agreement conflict with the terms of an Order Form, then the terms of this Agreement will control. This Agreement hereby incorporates by reference any and all attachments to this Agreement.  

    2. Governing Law. THE AGREEMENT WILL BE GOVERNED BY CALIFORNIA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. EACH PARTY SUBMITS TO THE PERSONAL AND EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS IN SAN FRANCISCO, CALIFORNIA.

    3. Severability. Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.

    4. Assignment. Purchaser may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of Sully.ai. Sully.ai may not assign this Agreement without providing notice to Purchaser, except Sully.ai may assign this Agreement or any rights or obligations under this Agreement to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.

    5. Force Majeure. Neither Purchaser nor Sully.ai will be liable for inadequate performance to the extent caused by a Force Majeure event, provided the delayed party gives the other party prompt notice of the event. If Sully.ai is unable to provide the Service for a period of thirty consecutive days as a result of a continuing Force Majeure event, Purchaser may cancel the Service and this Agreement at no penalty or cost.

    6. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. 

    7. Relationship of the Parties. The parties intended relationship is that of independent contractors, not legal partners or agents.

    8. Counterparts. This Agreement may be executed in counterparts. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.