EFFECTIVE DATE: May 30, 2024
This Professional Services Agreement, together with one or more statements of work (each an “SOW”) signed by the parties (collectively, this “Agreement”) is entered into by and between Tech 42 LLC, with offices at 721 Walnut Lane, Woodstock, GA 30188 (“Tech 42”) and the entity identified as Client on the applicable SOW (“Client”). This Agreement sets forth the terms under which Tech 42 will provide professional services set forth in an SOW (collectively, “Services”) and Deliverables (defined below) to Client.
BY ACCEPTING THIS AGREEMENT, BY EXECUTING AN SOW THAT REFERENCES THIS AGREEMENT, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CLIENT REPRESENTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. IF SUCH INDIVIDUAL DOES NOT HAVE SUCH AUTHORITY, OR IF CLIENT DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, CLIENT MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT RECEIVE THE SERVICES OR ACCEPT THE DELIVERABLES. RECEIVING THE SERVICES OR ACCEPTING OR USING THE DELIVERABLES INDICATES CLIENT’S ACCEPTANCE OF THIS AGREEMENT.
1.1. “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with the applicable party. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% or more of the voting equity securities or other equivalent voting interests of the entity.
1.2. “Deliverables” means the deliverables and other work product, in any form or medium, uniquely developed by Tech 42 for Client and specifically identified as Deliverables in the applicable SOW. Deliverables do not include any Pre-existing IP.
1.3. “Pre-existing IP” means any proprietary methodologies, tools, software, documentation, know-how, trade secrets, inventions, or works of authorship conceived or developed independently by Tech 42.
Tech 42 will perform the Services in accordance with the requirements and deadlines in the applicable SOW(s). Any changes to this Agreement or SOW will require a written amendment signed by the parties, provided that neither Client nor Tech 42 shall unreasonably refuse any changes requested by the other party. All Deliverables will be delivered electronically to Client. Title and risk of loss to tangible Deliverables will pass to Client upon delivery at the Client destination. In the event of a conflict or inconsistency between this Agreement and a SOW, this Agreement shall control and govern.
3.1. Payment. Subject to Section 3.4, Client shall pay Tech 42 (a) the fees specified in the applicable SOW for fixed price SOW(s); and (b) the rate specified in the applicable SOW multiplied by time actually worked by Tech 42 for time and material SOW(s). Each SOW shall be a time and material SOW unless explicitly stated to the contrary in the applicable SOW(s). Fees and expenses due from Client under this Agreement may not be withheld or offset by Client against other amounts for any reason, except as explicitly set forth in Section 3.4. If any invoiced amount is not received by Tech 42 by the due date, then, without limiting Tech 42’s rights or remedies, those amounts will accrue interest at a rate of 1.5% per month or the maximum allowed under state law (whichever is lower). Tech 42, at its option, may suspend the Services, in whole or in part, if Tech 42 does not receive all amounts due and owing in accordance with this Agreement. Tech 42 shall be entitled to an award of its reasonable attorney’s fees and collection costs in connection with Client’s breach of its payment obligations. Tech 42’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client is responsible for paying all Taxes associated with its purchases hereunder.
3.2. Expenses. Client will reimburse Tech 42, at cost, for reasonable expenses incurred by Tech 42 in performing the Services, subject to Client’s pre-approval.
3.3. Invoices. Tech 42 shall (a) invoice Client monthly for time and material SOW(s) based on work actually performed by Tech 42, and (b) for fixed price SOW(s), shall invoice Client in accordance with the schedule set forth in the applicable SOW, or if no schedule is set forth, upon execution of the SOW. Client shall pay all invoices in U.S. Dollars within thirty (30) days of the date of the invoice.
3.4. Third Party Payment. In the event that a third party agrees with Tech 42 to subsidize, in part or in whole, any of the fees and/or expenses owed by Client to Tech 42 hereunder, then (a) Client represents and warrants that it shall provide and execute any requested documentation to Tech 42 to enable Tech 42 to receive such fees and expenses from such third party; and (b) Tech 42 represents and warrants that any of the fees and/or expenses owed by Client to Tech 42 hereunder received by Tech 42 from such third party will offset any amounts owed hereunder by Client. For the avoidance of doubt, Client shall remain solely responsible for the payment of all fees and expenses owed to Tech 42 hereunder, except and until (i) each payment from a third party to Tech 42 for the fees and/or expense owed by Client to Tech 42 hereunder is received by Tech 42; and (ii) such total payments from a third party to Tech 42 for the fees and/or expense owed by Client to Tech 42 hereunder received by Tech 42 equals the total amount of fees and expenses owed by Client to Tech 42 hereunder.
3.5. Cloud Computing Costs. Client acknowledges and agrees that in providing the Services herein, Tech 42 will take certain actions that may result in fees and/or expenses owed by Client to certain third party cloud or hosting providers (“Cloud Computing Costs”). Unless otherwise explicitly set forth in the applicable SOW, Client is solely responsible for the payment of all Cloud Computing Costs, and Tech 42 hereby disclaims all liability and responsibility arising from or related to the Cloud Computing Costs.
Client shall: (a) have the overall direction and responsibility for all Services to be performed hereunder; (b) provide Tech 42, in a timely fashion, with all information and data reasonably required for the performance of the Services by Tech 42 hereunder; (c) provide Tech 42 with reasonable access to the premises, locations and systems necessary for the performance of the Services; (d) cooperate fully with Tech 42 in the provision of Services; (e) timely participate in meetings and make its personnel readily available for such meetings; and (f) assign personnel with relevant training and experience to work as part of a project team with Tech 42 or in consultation with Tech 42’s personnel.
5.1. Confidentiality. “Confidential Information” includes all technical and non-technical information provided by a party (“Disclosing Party”) to the other party (“Receiving Party”). All Deliverables, Client data and all information concerning or related to Disclosing Party’s products, services, financial data and models, business and marketing plans and any information related to the foregoing constitutes the Confidential Information and property of Disclosing Party. The Receiving Party will not: (1) use any Confidential Information except for the sole benefit of the Disclosing Party and only to the extent necessary to provide the services under this Agreement; or (2) disclose any Confidential Information of the Disclosing Party to any person or entity, except to the Receiving Party’ personnel who are involved in performing this Agreement, have a need to know, and have signed a non-disclosure agreement with terms substantially as restrictive as those herein. Other than the Deliverables, the foregoing will not apply to any information that: (a) is rightfully known by the Receiving Party prior to disclosure by the Disclosing Party; (b) is rightfully obtained by the Receiving Party from a third party without restrictions on disclosure; (c) is disclosed by the Receiving Party with the prior written approval of the Disclosing Party; or (d) to the extent required by law or court order so long as Receiving Party provides advance notice to the Disclosing Party as promptly as possible and cooperates with the Disclosing Party’s efforts to obtain a protective order regarding such disclosure. Upon expiration or any termination of this Agreement the Receiving Party will promptly destroy or (if requested) return the Disclosing Party’s Confidential Information and all copies thereof, provided that the Receiving Party may retain a single archival copy of Confidential Information if required to do so under applicable law.
5.2. Non-Solicit. During the term of this Agreement, and for a period of two (2) years following the expiration or termination of this Agreement, Client shall not, without the prior written consent of Tech 42, directly or indirectly solicit or hire any employee or independent contractor of Tech 42 with whom it was introduced through the relationship established by this Agreement. If the Client violates this section, Client shall be required to pay Tech 42 as liquidated damages, not as a penalty, one-hundred percent (100%) of the annualized salary for each affected employee or independent contractor. Client agrees that these liquidated damages are reasonable based on Tech 42’s loss.
6.1. Ownership. To the fullest extent permitted by law and save in respect of Pre-existing IP licensed to Client pursuant to Section 6.3, Client shall retain sole and exclusive ownership of all right, title and interest to all Deliverables. Each party retains sole and exclusive ownership of its Confidential Information. Tech 42 shall retain sole and exclusive ownership of all right, title and interest to all Pre-existing IP.
6.2. Assignment. Subject to Section 6.3 and Tech 42’s receipt of full payment for the applicable Deliverable, all Deliverables and all intellectual property rights in the Deliverables will be the sole and exclusive property of Client and will be deemed to be a “work made for hire” (as defined in Section 101 of Title 17 of the United States Code). If any Deliverables is determined not to be “work made for hire,” Tech 42 assigns to Client all right, title and interest in and to the Deliverables, including all intellectual property rights subsisting therein. Tech 42 will cooperate with Client to any commercially reasonable extent to effectuate Tech 42’s assignment of intellectual property rights in and to the Deliverables.
6.3. License. If Tech 42 incorporates into or provides in conjunction with any Deliverables any Pre-existing IP, then subject to Tech 42’s receipt of full payment for the Deliverables, Tech 42 hereby grants Client (including Client’s contractors, Affiliates, and agents) a non-exclusive, royalty-free, fully paid up, irrevocable, worldwide, perpetual license (with the right to sublicense) to make, have made, sell, offer for sale, use, execute, reproduce, modify, adapt, display, perform, distribute, make derivative works of, import, export, and disclose the Pre-existing IP in connection with the Deliverables.
7.1. Warranties. Tech 42 warrants that (a) Tech 42 will perform the Services in a professional and workmanlike manner and (b) the Deliverables will substantially conform to the requirements of the applicable SOW upon their delivery.
7.2. Correction of Deliverables. Tech 42 will, without charge, correct any non-conformity, defect or malfunction in any Deliverables within thirty (30) days of written notice from Client after their delivery provided such written notice specifically identifies each deficiency to be corrected. If Tech 42 determines that it is unable to correct the Deliverables, Tech 42’s sole obligation and Client’s exclusive remedy, at Tech 42’s sole cost and expense, is to do one of the following: (a) replace the affected Deliverables; (b) modify the affected Deliverables so that they are conforming to the warranty in Section 7.1; or (c) refund Client all fees paid for the non-conforming Deliverables. THIS SECTION SETS FORTH CLIENT’S SOLE REMEDY FOR ANY BREACH OF SECTION 7.1.
7.3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, Tech 42 DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CLIENT REGARDING THIS AGREEMENT AND THE SERVICES, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, THE IMPLIED WARRANTY OF TITLE, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY Tech 42. NO WARRANTY IS MADE THAT THE DELIVERABLES WILL BE ERROR FREE, THAT ALL ERRORS OR DEFECTS IN THE DELIVERABLES WILL BE CORRECTED, OR THAT THE DELIVERABLES WILL MEET CLIENT’S REQUIREMENTS.
Tech 42 will at its expense defend Client from any and all claims, actions or lawsuits brought by an unaffiliated third party and indemnify Client against any settlements agreed to by Tech 42 or damages, losses and expenses (including attorneys’ fees and court costs) in each case awarded against Client by a court of competent jurisdiction in favor of the applicable unaffiliated third party to the extent such third party claim, action or lawsuit arises out of any allegation that the Deliverables infringe on the intellectual property rights of such third party bringing the claim, action or lawsuit (each a “Claim”), provided that (a) Client is not then in breach of this Agreement, (b) Client gives prompt written notice of a Claim, (c) Tech 42 is permitted sole control of the defense and settlement of each Claim and (d) Client provides reasonable cooperation in the defense and settlement of each Claim. Client may participate in the defense of such Claim with counsel of its choice at its expense. In no event will Tech 42 settle any Claim without Client’s prior written consent, not to be unreasonably delayed. Tech 42 will have no obligations under this Section 8 with respect to Claims arising out of: (a) any instruction, information, designs, specifications or other materials provided by Client to Tech 42; (b) use of the Deliverables in combination with any materials or equipment not supplied to Client; (c) any modifications or changes made to the Deliverables by or on behalf of any person or entity other than Tech 42; (d) the use of any version of the Deliverables other than the most current release made available by Tech 42; or (e) Client’s negligence or more culpable conduct. If a Deliverable, or any part thereof, becomes, or in the opinion of Tech 42 may become, the subject of a claim of infringement or misappropriation, Tech 42 may, at its option: (x) obtain a license for Client’s continued use of that Deliverables in accordance with this Agreement; (y) replace or modify the Deliverables so that they are no longer claimed to infringe or misappropriate; or (z) terminate this Agreement and refund to Client any portion of the fees prepaid by Client for the infringing Deliverables.
NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNTS PAID BY CLIENT TO TECH 42 UNDER THE APPLICABLE SOW DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. THIS SECTION DOES NOT APPLY TO SECTION 5.2.
10.1. Term. The term of this Agreement will begin on the SOW Effective Date of the first SOW executed by the Client and continue for a period of one (1) year, automatically renewing thereafter for additional one (1) year periods, unless terminated earlier as per this Section 10. The initial term and all renewal terms are collectively referred to as the “Term.”
10.2. Termination. Any expiration of this Agreement or termination of an SOW shall not result in termination of any other SOW(s) or this Agreement. However, Tech 42’s termination of this Agreement shall result in termination of all then-pending SOW(s). Either party may terminate this Agreement if (a) the other party fails to cure any breach of this Agreement within thirty (30) days of the non-breaching party’s written notice of such breach or (b) the parties apply for funding from Amazon Web Services, or its affiliates (collectively, “AWS”) for an engagement under an SOW (each, a “Funded Project”), and AWS denies, rejects or otherwise does not approve the funding of such Funded Project. In the event that either party terminates this Agreement pursuant to Section 10.2(b) prior to any material Services performed for such Funded Project, then all fees owed by Client for such Funded Project are cancelled; provided, however, if AWS approves funding for the Funding Project at any time, either prior to, on or following termination pursuant to Section 10.2(b), then Client must comply with the requirements set forth in Section 3.4(a).
10.3. Effect of Termination. Sections 1 (Definitions), 3 (Fees), 5 (Covenants), 6 (Ownership), 8 (Indemnity), 9 (Liability), 10.3 (Effect of Termination), and 11 (General) will survive the termination or expiration of this Agreement.
11.1. Non-exclusive Engagement. Client acknowledges that Tech 42 may be engaged on behalf of other clients in the development, licensing, sale, or use of computer software or works and services functionally similar to Deliverables and Services. Client further acknowledges that Tech 42 will be entitled to engage in transactions and implement projects for any third party. Tech 42 retains all rights and license to its knowledge and experience (including processes, ideas, concepts and techniques) acquired or developed by Tech 42 prior to, or in the course of performing the Services.
11.2. Independent Contractors. Tech 42 is an independent contractor and not a partner, agent or joint venture with Client. Tech 42 will be solely responsible for all acts, obligations and payments due with respect to its personnel used to perform the Services. Tech 42, and not Client, will be responsible for the hiring, management, supervision, discipline, control, performance and all other employment related requirements of the Tech 42’s personnel. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
11.3. Assignment. Neither party may assign this Agreement without the prior written consent of the other party and any attempt to do so will be null and void. Notwithstanding the foregoing, either party may assign this Agreement to any Affiliate or any entity in connection with a reorganization, merger, consolidation, acquisition, or other transaction involving all or substantially all of the voting securities or assets of such party, upon written notice to the non-assigning party.
11.4. Force Majeure. Each party hereto shall be excused from default or delay in the performance of its obligations hereunder if and to the extent that such default or delay is caused by an act of God, or other cause beyond its reasonable control, including but not limited to, work stoppages, cyber-attacks, fires, riots, accident, explosion, flood, storm, or failures or fluctuations in electrical power, heat light, air conditioning or telecommunications equipment, an unanticipated event that materially changes the service needs or requirements of Client, a change in law, the case when Tech 42’s personnel performing the Services is fired or has quit. In such event, the non-performing party shall be excused from performance for as long as such circumstances prevail and shall as soon as practicable notify the other by telephone, by e-mail, or by post (to be confirmed promptly in writing) of any actual or anticipated delay. If such delays last for an aggregate of 60 (sixty) days or more, either party shall be entitled to terminate this Agreement by giving written notice to the other party, such termination to be effective on the date indicated in this notice. In the event of such termination, Client shall pay Tech 42 for all fees and expenses incurred under this Agreement through the effective date of termination of this Agreement and each SOW, whichever is later. Upon such termination above and upon full payment, Tech 42, in its turn, shall deliver to Client all interim Deliverables (complete or incomplete) in Tech 42’s possession.
11.5. Governing Law. This Agreement will be governed and construed under the laws of the State of Georgia without regard to conflicts of law provisions. Any suit or proceeding arising out of or relating to this Agreement will be brought in the federal or state courts, as applicable, in Fulton County, Georgia, and each party irrevocably submits to the jurisdiction and venue of such courts.
11.6. Notices. Any notice hereunder will be in writing to the address set forth above and will be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. Mail (return receipt requested); or (iii) one (1) day after it is sent if by next day delivery by a major commercial delivery service or by electronic mail.
11.7. Entire Agreement. This Agreement, and each SOW entered hereunder, is the entire agreement of the parties and supersedes all previous or contemporaneous agreements between the parties relating to its subject matter. If there is a conflict between the terms of this Agreement and a SOW, the terms of this Agreement will control. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. Neither party will be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by the other party in any acceptance, confirmation, invoice, purchase order, receipt, correspondence, or otherwise, unless each party mutually and expressly agrees to such provision in writing.
11.8. Waiver and Severability. No provision of this Agreement will be waived by any act, omission or knowledge of a party or its agents or employees except specifically in a writing signed by the waiving party. If any provision is deemed by a court unenforceable or invalid, that provision will be stricken or modified and the remainder of this Agreement will be in full force and effect.
11.9. Subcontractors. Tech 42 may use subcontractors or other third parties in carrying out our obligations under this Agreement and any SOW. Tech 42 remains responsible for all of our obligations under this Agreement.
11.10. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.11. Modifications. Tech 42 reserves the right, at its discretion, to change the terms of this Agreement on a going-forward basis at any time. If a change materially modifies Client’s rights or obligations, Client will be required to accept the modified Agreement in order to continue to receive the Services and Deliverables. Material modifications are effective upon Client’s acceptance of the modified Agreement. Immaterial modifications are effective upon publication. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.
11.12. Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same may not apply a presumption that the terms of this Agreement will be more strictly construed against one party than against another.
