This SignalPop Standard Service Agreement (“Agreement”) is entered into by and between SignalPop LLC, a Delaware corporation (“SignalPop”) and the undersigned customer (“Customer”, “you” or “your”) on and as of the date on your invoice (the “Execution Date”). SignalPop and Customer may be referred to herein individually as a “Party” and collectively as the “Parties”. Your use of the SignalPop Services (as defined below in section 1.1 and in your SignalPop invoice and incorporated herein by reference) is governed by the terms and conditions of this Agreement (the “Terms”). In order to use the SignalPop Services, you must first agree to the Terms, and by actually using and/or payment of any invoice to SignalPop for the SignalPop Services, you are thereby agreeing to the Terms. You understand and agree that SignalPop will treat your use and/or payment of the SignalPop Services as acceptance of the Terms and therefore agree to the following:
WHEREAS, SignalPop and Customer wish to establish the terms and conditions that will apply to the performance of the Services, as specified in the SignalPop invoice, by SignalPop for Customer.
NOW THEREFORE, in consideration of the mutual promises contained in this Agreement and other valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:
1.1 Statement of Work. The Parties desire that SignalPop provide certain artificial intelligence, data gathering and data analysis services (collectively, the “Services”) for Customer under this Agreement, as described in your SignalPop invoice incorporated herein by reference (the “SOW”). The SOW may only be amended by mutual written agreement of both Parties. In the event of any conflict between this Agreement and a SOW, this Agreement shall control and take precedence. SignalPop shall perform the Services with commercially reasonable efforts and diligence. All dates, timelines and deadlines in the SOW are estimates and targets only and not firm commitments by SignalPop or Customer.
1.2 Cooperation and Assistance. Customer shall reasonably cooperate with SignalPop in connection with its performance of the Services, including without limitation by providing any assistance and materials set forth in the SOW as Customer’s responsibility, and by being available for regular consultation and assistance as requested by SignalPop. Without limiting the foregoing, Customer shall provide all information, tokens and other materials reasonably required for SignalPop to effectively perform the Services or otherwise reasonably requested by SignalPop (“Customer Materials”). Customer hereby authorizes SignalPop to place ads, play videos for the purpose of performing the Services, and Customer shall provide reasonable cooperation and assistance to SignalPop therewith. In addition, Customer will provide SignalPop with tokens necessary to access data needed for business intelligence analysis. Customer understands and agrees that SignalPop’s performance of Services is dependent on and subject to Customer’s timely and complete performance of its responsibilities described above. Customer represents and warrants that it has all rights, consents, licenses and permissions required to provide the Customer Materials to SignalPop and for SignalPop to perform the Services using such Customer Materials, and that SignalPop’s use of such Customer Materials in accordance with this Agreement shall not violate any Applicable Laws or the intellectual property or other rights of any individuals, persons or entities.
2.1 Fees. Subject to the terms and conditions of this Agreement and it consideration for the Services, Customer shall pay SignalPop the fees and other amounts specified in the SOW (“Fees”). Customer shall pay the Fees to SignalPop in in accordance with the corresponding payment schedule provided in the SOW or, if not so specified, within fifteen (15) days of SignalPop’s invoice due date for such Fees.
2.2 Expenses. Customer shall pay for the cost and expenses specified in the SOW on a pass-through basis (or if applicable to be paid directly by Customer such as, for example, advertising and media purchases on the “Advertising Platform” used, such as Facebook). SignalPop shall have no obligation to pay for or incur any such items unless and until it receives the corresponding amount from Customer (or Customer pays such amount directly). In addition, Customer shall pay or reimburse SignalPop for reasonable out-of-pocket costs and expenses incurred by SignalPop in performance of the Services hereunder outside of SignalPop’s ordinary internal operational expenses. Customer shall pay the foregoing costs and expenses as specified in the SOW or, if not so specified, within fifteen (15) days of SignalPop’s invoice due date for such Fees (or reasonably promptly upon request from SignalPop if needed for timely performance of the Services). These out-of-pocket and expenses must be pre-approved by Customer if more than $100.00.
2.3 Other Payment Terms. All Fee and expense payment obligations are non-cancelable and all Fee and expenses paid are non-refundable and non-creditable. All past due invoices from SignalPop shall bear interest at a rate of 1.5% per month or, if less, the maximum rate allowed under applicable law. All fees are payable in United States dollars by check or wire transfer of immediately available funds to an account designated by SignalPop. Customer is responsible for paying (an all fees are exclusive of) any taxes, levies, duties, or similar governmental assessments of any nature associated with SignalPop’s provision of the Services hereunder or the payment of Fees under this Agreement (other than taxes on SignalPop’s net income). If SignalPop has the legal obligation to pay or collect taxes, levies, duties or similar assessments for which Customer is responsible hereunder, SignalPop may add the appropriate amount to amounts charged to and paid by Customer hereunder.
III. INTELLECTUAL PROPERTY
3.1 License to Marks and Materials. In connection with performance of the Services, SignalPop may be using names, trade names, trademarks, service marks, symbols, abbreviations or logos of Customer (or its customers) (the “Customer Marks”). The Parties shall reasonably cooperate in implementing the proper use of the Customer Marks in connection with the Services. Customer hereby grants to SignalPop a license to use the Customer Marks (or those marks of its customers, for which Customer is able to pass license to SignalPop) solely to perform the Services hereunder, including the right to promote Customer and Customer’s customers on SignalPop’s website as SignalPop customers.
3.2 Retained Rights. Subject to the licenses expressly granted herein, Customer’s customers shall retain all right, title and interest in and to its materials and intellectual property, including without limitation the Customer Materials, the Customer Marks, any customer owned e-commerce web landing pages where Customer’s customers purchase Customer related items (excluding any SignalPop materials or technology incorporated therein), and any Customer or Customer customer’s social media accounts held by Customer or its customers. SignalPop shall retain all right, title and interest in and to all of its technology, materials, and other intellectual property whether developed prior to or during any Services work performed during this Agreement. SignalPop has developed an existing artificial intelligence and cloud based technology platform and data that it will utilize for the services. During the course of performing any Services for Customer (or any Customer customer) described in the “SOW”, SignalPop may develop improvements, derivatives or enhancements to such pre-existing technology platform and data (“SignalPop Improvements”). SignalPop shall retain ownership over all such SignalPop Improvements and such SignalPop Improvements shall not be assigned to Customer.
4.1 Confidential Information. As used herein, “Confidential Information” means all information of a non-public or proprietary nature disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing that is designated as confidential. 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 as evidenced by contemporaneous documentation, (iii) is rightfully received by the Receiving Party from a third party without breach of any obligations owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use or reference to the Confidential Information of the Disclosing Party.
4.2 Restrictions on Use and Disclosure. Up to three years after the termination date of this agreement, the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of the like kind (but in no event less than reasonable care) to preserve the confidentiality of the Disclosing Party’s Confidential Information. The Receiving Party agrees, except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its affiliates’ employees, contractors, agents who need such access for purposes consistent with this Agreement and who are bound by obligations of confidentiality at least as protected of the Confidential Information as those obligations provided herein.
4.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if and to the extent it is compelled by applicable laws, rules and regulations to do so provided the Receiving Party gibes the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
5.1 By Customer. Customer shall indemnify, defend and hold harmless SignalPop and its directors, officers, employees, and agents (the “SignalPop Indemnities”) from an against any and all costs, expenses, liabilities, damages, losses and harm (including reasonable legal expenses and attorneys’ fees) arising out of or resulting from any Claims brought against any SignalPop Indemnities to the extent resulting from or caused by: (a) the gross negligence, or willful misconduct Customer; (b) the Customer Materials, Customer Customers, claims brought by Customer Customers or Customer’s products or services; or (c) Customer’s breach of this Agreement, except in each case to the extent that a Claim arises out of or results from the gross negligence or willful misconduct of SignalPop or SignalPop’s breach of its obligations, warranties, or representations under this Agreement.
VI. LIMTATIONS OF LIABILITY; DISCLAIMER OF WARRANTY
6.1 Disclaimer of Warranty – Artificial Intelligence and the data analysis Services provided by SignalPop that use it are based on probabilities, incomplete data, and imperfect data. For this reason, unless required by applicable law or agreed to in writing, the SignalPop Services and all deliverables defined herein, are provided on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, SIGNALPOP PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, THAT THE LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE. You are solely responsible for determining the appropriateness of using the Services and deliverables offered by SignalPop and assume any and all risks, known and unknown, associated with your exercise of rights granted by this Agreement.
6.2 Limitations of Liability. You recognizes that artificial intelligence is an imperfect science based on probabilities, sparse and imperfect data, and many other unknown risks which may impact the performance of the SignalPop Services. For these reasons, in no event and under no legal theory, whether in tort (including negligence), contract, at law, in equity, or otherwise, unless required by applicable law (such as deliberately and grossly negligent acts) or agreed to in writing, shall SignalPop, any of its affiliates (“Affiliates”) or any open source Contributor be liable to you or any of your customers, clients, partners, affiliates, equity holders, directors, employees, agents or representatives for any damages, including any direct, indirect, special, incidental, exemplary, special, punitive, or consequential damages, of any character arising as a result of this License or out of the use or inability to use the SignalPop Services, Software or Documentation (including but not limited to damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, regardless of whether such damages were foreseeable and whether or not SignalPop, any open source Contributor, you or any of your customers, clients, partners, affiliates, equity holders, directors, employees, agents or representatives were advised of the possibility of such damages). EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, EXCH PARTY MAKES NO, AN DHEREBY DISCLAIMS ALL, WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, TRADE USAGE OR TRADE PRACTICE.
VII. TERM AND TERMINATION
7.1 Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue thereafter for a period of approximately twelve (12) months as outlined in the SOW, unless renewed or earlier terminated as expressly provided herein.
7.2 Termination. Either party may terminate this Agreement at any time, with our without cause, upon fifteen (15) days prior written notice to the other Party.
7.3 Effects of Termination. Sections 2 (solely with respect to surviving payment obligations), 3, 4, 5, 6, 7.3 and 8 shall survive any termination or expiration of this Agreement. Furthermore, any Fee or other payment obligations specified in the SOW as continuing or remaining after termination or expiration shall survive termination or expiration of this Agreement to the extent specified in the SOW. Termination or expiration of this Agreement shall not affect any obligations that have accrued prior to expiration or termination of either Party’s liability for any breach of this Agreement it may have committed before such expiration or termination.
VIII. GENERAL PROVISIONS
8.1 Independent Contractors. SignalPop’s relation to Customer under this Agreement is that of an independent contractor. Nothing in this Agreement is intended or should be construed to create an employer-employee, joint venture, partnership or similar relationship between Customer and SignalPop.
8.2 Governing Law. This Agreement is governed by the laws of the State of Washington, without reference to any conflict laws principles that would require the application of the laws of any other jurisdiction. Any dispute, controversy, difference or claim which may arise between the Parties out of or in relation to or in connection with this Agreement shall be finally and exclusively settled in the state and federal courts of King County, Seattle, Washington.
8.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and remain in full force and effect, while the invalid or unenforceable provisions will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
8.4 No Assignment. This agreement may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by either Party without the express prior written consent of the other Party; provided, however, that either Party may assign this Agreement without such consent to its successor in interest in connection with any merger, consolidation, reorganization or sale of such Party or of all or substantially all of its assets of such Party to which this Agreement relates. In the case of any permitted assignment or transfer of this Agreement, this Agreement shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the Parties hereto. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. For the avoidance of doubt, SignalPop may use affiliates, contractors and consultants to perform portions of the Services for SignalPop.
8.5 Notices. Each party must deliver notices, consents, and approvals required or permitted under this Agreement in writing to the other Party at the address specified on the SignalPop invoice by personal delivery, by certified or registered mail (postage prepaid and return receipt requested), by a nationally-recognized overnight carrier, by confirmed electronic mail, or by facsimile transmission with electronic confirmation of transmission. Notice will be effective upon receipt or refusal of delivery. Each party may change its address for receipt of notice by giving notice of such change to the other Party.
8.6 Remedies; Waiver. The rights and remedies provided to each Party in this Agreement are cumulative and in addition to any other rights and remedies available to such Party at law or in equity. All waivers must be in writing and signed by the Party to be charged. No delay or failure to enforce any rights, obligations or provisions of this Agreement shall constitute a waiver thereof. Any waiver of any provisions of this Agreement on one occasion will not be deemed a waiver of any
other provisions of such provisions on any other occasion.
8.7 Entire Agreement; Amendments. This Agreement, including the SOW hereunder, is the final, complete, and exclusive agreement of the Parties with respect to the subject matter thereof and supersedes and merges all prior or contemporaneous communications, documents, agreements and understandings between the Parties with respect to such subject matter. No modification of or amendment to this Agreement will be effective unless in writing and signed by both Parties.
8.8 Force Majeure. Neither Party shall be liable for any failure or delay in performing its obligations under this Agreement to the extent such failure or delay is due to any causes beyond the reasonable control of such Party, including but not limited to, acts of God, terrorism, fire, explosion, weather, disease, ware (whether or not declared), insurrection, civil strife, riots, or natural disasters, provided that the Party affected by such circumstances promptly notifies the other Party thereof and resumes performance as soon as possible following the end of such force majeure occurrence.
8.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which shall constitute together the same instrument. For purposes hereof, a facsimile or PDF/scanned copy of this Agreement, including the signature pages hereto, shall be deemed an original.
IN WITNESS WHEREOF, by Customer using SignalPop Services or paying for at least one SignalPop invoice that references this agreement and by accepting payment for at least one SignalPop invoice that references this agreement, the Parties have executed this SignalPop Services Agreement as of the Effective Date by their duly authorized representatives.