THE ATTACHED STATEMENT OF WORK (THE “SOW”) AND THESE SERVICE TERMS AND CONDITIONS (COLLECTIVELY, THIS “AGREEMENT”) SHALL CONSTITUTE THE ENTIRE Agreement BETWEEN THE CLIENT IDENTIFIED IN THE SOW (“CLIENT”, “YOU” OR “YOUR”) AND RIGHTBRAIN NETWORKS, LLC, A MICHIGAN LIMITED LIABILITY COMPANY (“RBN”, “WE”, “US” OR “OUR”), REGARDING RBN’S SERVICES TO YOU (THE “SERVICES”).

1.0 Services.

1.1 SOW. RBN shall provide you with the Service as set forth in the SOW. The SOW may set forth, as applicable, the project overview and objectives, deliverables, timetable, responsibilities of each party, service fees, and payment terms, and such other terms as mutually agreed between the parties. Either party may request changes to the SOW, which if agreed upon by both parties will be evidenced in a written amendment to the SOW. You acknowledge and agree that some changes to an SOW may result in changes to the timelines, service fees, and other terms in the SOW.

1.2 Cooperation. You agree to cooperate with us and provide us access to your personnel, as well as provide complete and accurate information and materials, in a timely fashion and as reasonably required by us to perform the Services. You acknowledge and agree that such cooperation and provision of personnel, information, and materials are essential to our ability to perform the Services. To the extent that the Services require us to access or use information or materials provided by you, or your other third-party vendors or licensors, you warrant that you shall have all rights and licenses necessary or appropriate for us to access or use such information and materials and agree to produce evidence of such rights and licenses upon request.

3.0 Payment Terms.

3.1 Service Fees. You will pay us the fees for the Services in the amounts and in accordance with the payment schedule as specified for the SOW. We will invoice you, electronically, for the fees as due and payable in accordance with the SOW. You will pay our invoices within fifteen
(15) days of receipt. The fees and all other amounts due are net amounts to be received by us, exclusive of all taxes, withholdings, duties, and levies arising from the services (“Taxes”). You are responsible for, and shall pay directly, any and all Taxes relating to payments made under this Agreement, except Taxes based solely on our income.

3.2 Expenses. You agree to pay all actual expenses incurred by us in performing the Services (including without limitation travel, parking, reproduction costs, shipping, postage, equipment rental, and courier charges); provided, however, that you must pre-approve any single expense in excess of $500. If any RBN personnel are required to travel 120 miles or more from RBN’s principal offices in Ann Arbor, Michigan, you will be billed for lodging, meals, air travel, rental car, and other incidental travel expenses. We shall make a reasonable effort to adhere to your published vendor travel policies if such policies are provided to us prior to the commitment of travel plans, otherwise travel and reimbursement for travel shall be subject to our internal travel policies.

3.4 Late Charge. You agree to pay a late charge of one-and-a-half percent (1½%) per month or the highest amount allowed by law, whichever is lesser, on all amounts not paid to us when due under the terms of this Agreement.

3.5 Non-Payment. In the event you fail to pay any fees and/or reimbursable expenses hereunder when they become due and payable in accordance with this Agreement, then all Services to be provided by us pursuant to this Agreement may be immediately terminated upon written notification to you. The remedy set forth in this Section shall be in addition to, and not in lieu of, any other right or remedy we may have at law or in equity with respect to your failure to pay any fees arising hereunder.

4. Work Product. Subject to our receipt in full of all amounts owed to us for the Services, we agree that all work product which is developed by us and delivered to you as provided in the SOW (“Work Product”), to the extent it is copyrightable, has been specially ordered or commissioned by you and shall be considered a “work made for hire” within the meaning of the United States Copyright Act. You will be the sole owner of the copyright in any such Work Product. In addition, subject to our receipt in full of all amounts owed to us for the Services, to the extent that any such Work Product does not qualify as a “work made for hire,” we hereby irrevocably assigns to you, all of our entire right, title, and interest in the copyright in the Work Product. Both while providing services to you and afterwards, we agree to sign any documents, at your expense, that you may consider necessary or helpful to document our Agreements under this Section 4.

5. Confidential Information. Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations hereunder or except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.

5.1 Term. This Agreement shall commence upon execution by both parties of the initial SOW and shall continue until termination of this Agreement by either party as provided in this Agreement (the “Term”).

5.2 Termination. Either party may terminate this Agreement or any SOW at any time upon giving 30-days written notice to the other party. In addition, either party may terminate this Agreement immediately, without notice, in the event that the other party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtor’s moratorium. Termination of this Agreement shall terminate any outstanding SOWs.

5.3 Effect of Termination. Upon the effective date of termination of this Agreement or any SOW(s), (a) we will immediately cease providing the Services under this Agreement or with respect to such SOW(s); (b) unless otherwise provided in an SOW, any and all payment obligations of Client under such SOW(s) for the total amount owed or to be owed under such SOW(s) shall be accelerated and will immediately become due; and (c) within ten (10) days of such termination, each party will return all Confidential Information of the other party in its possession and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping.

5.4 Survival. The following provisions will survive any expiration or termination of this Agreement: Sections 3, 4, 5, 6, and 7. Other provisions may survive any expiration or termination of this Agreement by their terms.

6. Limitation of Damages. In no event shall either party, its owners, employees, or agents, be liable under this Agreement for incidental, special, exemplary, or indirect damages based on any theory of contract, tort, strict liability, negligence, or otherwise, even if such party has been advised of the possibility of such damages. In no event shall our liability under this Agreement exceed the amounts paid to us under this Agreement.

7. Miscellaneous.

7.1 Entire Agreement. This Agreement, including the SOW, constitute the entire Agreement between the parties with respect to the subject matter hereof, and supersede all of the prior Agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter of this Agreement. Any additional or different terms in any documents, such as a purchase order, provided by Client shall be deemed objected to by RBN without need of further notice of objection, and shall be of no effect or in any way binding upon RBN.

7.2 Notices. Notices required or permitted under this Agreement may be given by email, fax, hand delivery, First Class Mail or Federal Express, and are effective when received. Delivery by email shall only be deemed received if sent by return receipt or if the receiving party replies to the email.

7.3 Counterparts. This Agreement may be executed in counterparts, which together shall constitute a single Agreement.

7.4 Amendments. This Agreement may be amended or changed only by a written document signed by authorized representatives of RBN and Client in accordance with this Section.

7.5 Assignment. You may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, sale of all or substantially all of your assets, or transaction or series of related transactions that results in the transfer of fifty percent (50%) or more of your outstanding voting power (provided that the assignor shall remain liable for any nonpayment by the assignee). You may not otherwise assign your rights or delegate your duties under this Agreement either in whole or in part without our prior written consent, and any attempted assignment or delegation without such consent will be void. We may assign this Agreement in whole or part. We also may delegate the performance of certain Services to third parties, provided RBN controls the delivery of such services to you and remains responsible to you for the delivery of such Services. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

7.6 Force Majeure. Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including, but not limited to, acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet (each a “Force Majeure Event”), provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If we are unable to provide services for a period of fifteen (15) consecutive days as a result of a continuing Force Majeure Event, you may terminate this Agreement on written notice to RBN. Such termination will be effective on the date specified in the written notice.

7.7 Non-Solicitation. You agree that you will not, for your own benefit or the benefit of any third party, directly or indirectly: (a) solicit RBN’s employees or contractors; (b) influence or encourage RBN’s employees or contractors to end their relationship with RBN; (c) or otherwise interfere with the relationships between the RBN and RBN’s employees and contractors. This provision shall remain in effect during the term of this Agreement, and for a period of one (1) year following the termination of this Agreement. Nothing in this Section shall be deemed to prohibit any general solicitation of employment intended for the general public.

7.8 Relationship of Parties. The parties are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between them. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided in this Agreement.