3. Joint Efforts. Client acknowledges that Contractor’s ability to perform its obligations hereunder is contingent upon Client’s cooperation, which may include Client supplying certain access, information, specifications, feedback, and other items as Contractor may determine. Client agrees to provide such cooperation in a timely manner upon Contractor’s reasonable request.

4. Work Product “Work Product” means the tangible results of Services, including source code and schematics, as well as any ideas, concepts, processes, discoveries, developments, formulae, information, materials, improvements, designs, artwork, content, software programs, other copyrightable works, and any other work product created, conceived or developed by Contractor, alone or jointly with others, in the course of performing the Services or as a result of providing such Services, whether or not eligible for patent, copyright, trademark, trade secret or other legal protection, and any and all related patents, patent applications, trademarks, copyrights, trade secrets, and other proprietary rights, provided, however, that “Work Product” will not include any designs, artwork, content, software programs or other copyrightable works provided by Client for incorporation into any Deliverable (the “Client Content”) or any modifications of Client Content. As between the Parties, the Client owns and shall continue to own all right, title and interest in and to all Client Content and modifications thereof. Upon Client’s acceptance of any completed Work Product and Contractor’s receipt of payment in full, and Subject to Section 5 below, Contractor grants to Client an irrevocable, perpetual, worldwide, non-exclusive license to use, maintain, run, commercialize, exploit, copy and create derivative works from the Work Product for any purpose. Contractor shall not use any open source software or third party software in any Work Product unless (x) Contractor provides to Client a license to use such open source software or third party software at no cost to Client, (y) Contractor notifies Client of the existence and nature of such open source software or third party software, and (z) Contractor’s use of such open source software or third party software is duly authorized by the owner of any intellectual property rights therein, is in compliance with terms of the applicable license and does not require the source code for the Work Product to be made available under an open source license. Contractor may use the Client Content solely for its services under this Agreement and for the creation and development of the Work Product for Client, but this Agreement does not grant Contractor any right or license to use and Contractor shall not use the Client Content in any other manner.

5. Preexisting Intellectual Property. All routines, methodologies, processes, libraries, tools, or technologies created, adapted or used by Contractor in its business generally, including all associated intellectual property rights (collectively, the “Development Tools”), shall be and remain the exclusive property of Contractor, and Client shall have no interest in or claim to the Development Tools, except as may be necessary to exercise its rights in any Work Product. Notwithstanding any provision to the contrary in this Agreement, Contractor shall be free to use any ideas, concepts, or know-how developed or acquired by Contractor during the performance of this Agreement to the extent obtained and retained by Contractor’s personnel as impression and general learning. Nothing in this Agreement or otherwise shall be construed to preclude Contractor from using the Development Tools for use with third parties or for the benefit of Contractor.

6. Subcontractors. Contractor reserves the right to utilize subcontractors in the performance of this Agreement in its sole discretion without notice.

7. Taxes. Client shall pay, reimburse, and/or hold Contractor harmless for all sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated except income taxes, which are levied or imposed by reason of this Agreement.

8. Timing of Delivery. Regardless of any specific timing or delivery schedules or estimates provided in an applicable SOW or Change Order, Client acknowledges that the Services rendered hereunder are of a complex nature and that occasional delays in delivery sometimes occur. Minor delays in delivery by Contractor shall not constitute a breach of this Agreement. If Contractor expects a delay in delivery to occur, Contractor will use reasonable efforts to keep Client informed of such delay.

9. Acceptance; Right to Cure. Within thirty (30) days of the delivery of any Services provided hereunder, Client shall notify Contractor in writing of any material deviation from the specifications set forth in the applicable SOW and such Services, with sufficient information for Contractor to investigate and trouble-shoot the alleged deviation. If Client does not provide such written notice and details within the required time frame, Client’s acceptance of such Services shall be presumed and any claim or claims Client may have concerning such matter shall be deemed fully discharged and waived. Within sixty (60) days of Contractor receiving notice of any dissatisfaction, Contractor shall have the right to (1) object to or provide an explanation concerning such alleged deviation; (2) resolve any such alleged deviation through as many separate attempts as may be necessary within the sixty (60) days; and/or (3) refund some or all of Client’s payments related to such Services to resolve the matter. Upon accepting any such resolution, the matter shall be deemed finally settled and Client agrees fully release and forever discharge Contractor from and against any and all such claims, actions, demands, rights, causes of action, and liabilities, whether in law or in equity, with respect to such matter. The parties agree that any statements or admissions by Contractor, whether oral or in writing, in an attempt to resolve or settle a matter shall be considered “settlement negotiations” under Rule 408 and excluded from evidence in the resolution of any related dispute.

10. Term; Renewal; Termination. The term of this Agreement shall be twelve (12) months from the Effective Date (plus any extension necessary for the completion of any work in process under a SOW), after which this Agreement shall automatically renew on its anniversary for additional one (1) year terms until terminated in accordance with this Agreement (“Term”). Either party may terminate this Agreement by giving notice of termination to the other party at least thirty (30) days before the effective date of termination. In addition, Contractor may terminate this Agreement immediately upon written notice if the Client files a petition for bankruptcy, is the subject of an involuntary petition in bankruptcy, becomes insolvent, ceases to pay its debts as they become due, ceases to carry on business, or has a receiver appointed for its business. Either Party may terminate this Agreement if the other Party breaches and such breach remains uncured for more than ten (10) days after such written notice. Upon termination of this Agreement, the obligations of each Party will terminate except for such obligations as are intended to survive the expiration or termination of this Agreement.

11. Confidentiality. “Confidential Information” shall mean all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference to the Confidential Information. The Receiving Party shall protect and maintain the confidentiality of the Confidential Information of the Disclosing Party and shall use the same degree of care to protect the Confidential Information of the Disclosing Party as the Receiving Party uses to protect its own information that is confidential and proprietary in nature, but in no event less than a reasonable degree of care. The Receiving Party agrees (i) not to use or disclose any Confidential Information of the Disclosing Party for any purpose outside of the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, not to disclose any Confidential Information of the Disclosing Party to any third party other than to those of its employees, contractors, and agents who need such access for purposes consistent with this Agreement and who are bound to confidentiality protection provisions no less stringent than those herein. Each Party acknowledges that disclosure of any aspect of the Confidential Information of the other Party may give rise to continuing irreparable injury to the other party inadequately compensable in damages at law, and, without prejudice to any other remedy available to the other party, shall entitle the other party to injunctive or other equitable relief.

12. Non-solicitation. Client agrees that, during the term of this Agreement it shall not solicit to hire or hire any employee or subcontractor of Contractor; provided, however, that this covenant shall only apply to current employees or subcontractors of Contractor who provided any services to Client through or on behalf of Contractor. However, it will not be deemed a violation of this covenant for Client to hire for Client to hire (A) an employee or subcontractor of Contractor who has worked on Client’s projects in the 12 months prior to such hire (“Permitted Hire”) as long as Client gets Contractor’s written approval and immediately compensates Contractor for such Permitted Hire by paying to Contractor either (i) 100% of the annual gross compensation (including base salary and bonuses) of the relevant employee or subcontractor from Contractor (“Compensation Benchmark”) for any Permitted Hire during the initial Term or (ii) 25% of the Compensation Benchmark for any Permitted Hire during any renewal Term; or (B) an employee or subcontractor of Contractor who responds to a general job posting of Client (but only if such employee or subcontractor is not restricted under his or her contract with Contractor to accept such job).

If Client breaches or threatens to breach this covenant, Contractor may seek injunctive relief without posting a bond or other security, in addition to all other remedies available.

Contractor agrees that during this Agreement it shall not solicit to hire or hire any employee or subcontractor of Client without written approval.

13. Indemnification. Client will indemnify, defend, and hold harmless Contractor and its affiliates, officers, directors, employees agents, and other representatives against all losses arising from any third-party claims, actions or proceedings, arising out of (i) any claim that the combination by Client of any Client software, content, data, marks or other materials provided by Client or utilized by Client with the Services infringes or violates any third party’s valid patent, copyright or trade secret right under the any applicable laws; (ii) violation of Section 11 of the Agreement; or (iii) any other claims, suits, demands, enforcement actions, fines, liabilities, damages, losses, costs and expenses arising out of Client’s gross negligence or willful misconduct.

Contractor agrees to indemnify and defend Client, its officers, directors, employees, agents, vendors, contractors, associates, and assigns (collectively, “Indemnitees” and each an “Indemnitee”) from and against any and all third-party claims, suits, and demands arising out of (i) infringement of copyright, trademark, patent or other intellectual property rights of the Work Product (collectively, the “IP”), provided that Contractor will have no indemnity obligation for any IP Claims alleged to result from: (a) any combination, operation, or use of the Services by Client with any programs or equipment not supplied by Contractor or not specified in writing for such purpose (collectively, the “Combined Items”) if such infringement would have been avoided
absent the combination, operation, or use of such Combined Items, (b) any unauthorized modification of the Services by Client, or (c) Client’s failure to implement any replacement or modification of the Services provided by Contractor; (ii) the injury or death of persons or damage to property caused by Contractor’s performance of the Services; (iii) the Contractor’s gross negligence or willful misconduct in connection with the performance of the Services; and (iv) breach of Section 11 of the Agreement. If Contractor determines that its provision of the Services is the subject of an IP Claim, Contractor may, in its sole discretion and at its sole cost and expense, (a) modify the Services to eliminate the source of the IP Claim, or (b) cease to provide the applicable Services and refund any prepaid fees in respect of the applicable Services.

14. Disclaimer. EXCEPT AS MAY OTHERWISE BE EXPRESSLY PROVIDED HEREIN, ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND CONTRACTOR DOES NOT MAKE, AND HEREBY DISCLAIMS, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, INTEROPERABILITY, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. CONTRACTOR DOES NOT WARRANT THE WORK AND SERVICE PROVIDED HEREUNDER WILL BE UNINTERRUPTED AND/OR ERROR FREE. CONTRACTOR DOES NOT MAKE AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES AGAINST LOSS OF DATA, SECURITY BREACHES, THIRD PARTY INTERRUPTION OR INTERFERENCE WITH DATA OR NETWORKS, AND EXPOSURE OR RELEASE OF PERSONALLY IDENTIFIABLE INFORMATION, REGARDLESS OF CAUSE. CONTRACTOR. HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO COMPLIANCE WITH ANY LAW, REGULATION, OR COMPLIANCE REQUIREMENT, INCLUDING, BUT NOT LIMITED TO, THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA), THE GRAMM-LEACH-BLILEY ACT (GLBA), THE EUROPEAN UNION GENERAL DATA PROTECTION REGULATION (GDPR), THE CALIFORNIA CONSUMER PRIVACY ACT (CCPA), AND ANY OTHER SIMILAR REQUIREMENT. CONTRACTOR HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, CONTENT, SOFTWARE, EQUIPMENT, OR HARDWARE. ALL WARRANTIES PROVIDED ARE PERSONAL TO, AND INTENDED SOLELY FOR THE BENEFIT OF CLIENT, AND DO NOT EXTEND TO ANY THIRD PARTY.