MASTER PROFESSIONAL SERVICES AGREEMENT
Terms of service that govern the Statement of Work for Professional Services entered into by Client and Two Platforms Inc.
These are the terms of service that govern the Statement of Work for Professional Services entered into by Client and Two Platforms Inc., with its principal place of business at 1140 Dell Avenue, Campbell, CA 95008 USA (“TWO”), and together with Client, the 9“Parties”). By signing the Statement of Work, Client has agreed to the following terms and conditions (“Terms”).
RECITALS
WHEREAS, TWO has developed, SUTRA, a proprietary multilingual language model and is in the business of using SUTURA to develop and design AI assisted products for its customers;
WHEREAS, Client wishes to engage TWO as an independent contractor for Client for the purpose of designing and developing an AI assisted product;
WHEREAS, TWO wishes to develop the AI assisted product and agrees to do so under the terms and conditions of this Agreement; and
WHEREAS, each Party is duly authorized and capable of entering into this Agreement.
NOW THEREFORE, in consideration of the above recitals and the mutual promises and benefits contained herein, the Parties hereby agree as follows:
1.PURPOSE. The Company hereby appoints and engages TWO, and TWO hereby accepts this appointment, to perform the services described in one or more Statement of Work (“SOW”) attached hereto and made a part hereof, in connection with the design and development of a Project Deliverable, as defined below (collectively, the “Services”).
2. PROJECT DELIVERABLE. The “Project Deliverable” is any code, software, or deliverables created exclusively for the Client in the course of providing the Services, pursuant to an SOW.
3. COMPENSATION. The terms of the compensation for the development of the Project Deliverable will be set forth in the SOW.
4. TERM. This Agreement shall become effective as of the Effective Date and, unless otherwise terminated in accordance with the provisions of Section 15 of this Agreement, will continue until the Services have been satisfactorily completed, TWO has been paid in full for such Services, and expiration of the Warranty Period as defined in subsection 12(a) of this Agreement (the Term”).
5. RESPONSIBILITIES.
A. Of TWO. TWO agrees to do the following:
Create the Project Deliverable in accordance with Client’s requirements as set forth in a SOW and extend its best efforts to ensure that the design and functionality of the Project Deliverable meets Client’s specifications as described in the SOW (the “Specifications”).
Devote as much productive time, energy, and ability to the performance of its duties hereunder as may be necessary to provide the required Services in a timely and productive manner and to the timeframe specified in the SOW.
Perform the Services in a workmanlike manner and with professional diligence and skill, as a fully trained, skilled, competent, and experienced personnel.
On completion of the Project Deliverable, assist Client in the installation of the Project Deliverable to its final location, which assistance will include helping Client with its upload of the finished files to Client’s servers.
Provide all files and code to Client necessary for installation of the Project Deliverable on Company’s servers.
Communicate with Client regarding progress it has made with respect to the milestones listed in the SOW in performing the Services at times to be mutually agreed upon.
B. Of Client. The Company agrees to do each of the following:
Engage TWO as the creator of the Project Deliverable as further detailed in the SOW to this Agreement.
Provide all assistance and cooperation to TWO in order to complete the Project Deliverable timely and efficiently.
Provide initial information and supply all content for the Project Deliverable.
Provide all reasonable assistance to TWO to allow for installation of the Project Deliverable on Company’s servers.
6. ACCEPTANCE.
Acceptance Period. Company will have 10 business days following the date of delivery OR installation to assess and test the Project Deliverable.
Completion. If TWO, in Company’s opinion, delivers the Project Deliverable in accordance with the Specifications, then TWO will be deemed to have completed its delivery obligations.
Rejection. If TWO, in Company’s opinion, fails to deliver the Project Deliverable in accordance with the Specifications, Company will detail in writing its grounds for rejection. In that case, TWO will promptly OR use reasonable efforts to correct the Project Deliverable, in which case upon delivery of the corrected Software, the process of acceptance testing will restart.
Continued Failure. If TWO’s corrections, in Company’s opinion, fail to deliver the Project Deliverable in accordance with the Specifications, then Company may elect to either terminate this agreement or adjust the Specifications accordingly.
7. CHANGE ORDERS.
Changes. The Company may at any time request changes to the Specifications.
Additional Time or Expense. If the proposed change will, in TWO’s reasonable opinion, require a delay in the delivery OR installation of the Project Deliverable or result in additional expense, then TWO and Client will confer. Company may in that case elect to either:
withdraw its proposed change, or
require TWO to deliver the Project Deliverable with the proposed change, subject to the delay or additional expense or both.
Termination. If TWO is unable to accept, or chooses not to accept, the change order, Client may terminate the agreement upon notice to TWO.
8. SUPPORT PERIOD.
TWO agrees to provide continued support for the Project Deliverable for the period set forth in the SOW (the “Support Period”). The Support Period shall refer to any bugs or issues relating to the features specified in the SOW, and not to create new functionality for the Project Deliverable. This support will be provided to Client at no additional cost. If Company requires additional support services beyond the Support Period, TWO will provide Client with a proposal outlining the support offered, the length of such support and its cost, upon Client’s request.
9. CONFIDENTIAL INFORMATION.
Each Party agrees, during the Term and thereafter, to hold in strictest confidence, and not to use, or to disclose to any person, firm, or corporation without the prior written authorization of Client, any Confidential Information of the other Party. “Confidential Information” means any of the other party’s proprietary information, technical data, trade secrets, or know-how, including, but not limited to, business plans, research, product plans, products, services, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed to a Party by the Other Party either directly or indirectly.
Exclusions. Confidential Information does not include information that either party can demonstrate by written or other documentary records]: (a) was rightfully known to a Party without restriction on use or disclosure prior to such information's being disclosed or made available to that Party in connection with this Agreement; (b) was or becomes generally known by the public other than by a Party or any of its Representatives' non-compliance with this Agreement; (c) was or is received by a Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) a Party can demonstrate by written or other documentary records was or is independently developed by that Party without reference to or use of any Confidential Information.
Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, neither Party shall for the term of this Agreement and for a period of five (5) years thereafter:
except as may be permitted by and subject to its compliance with Section 9(e), not disclose or permit access to Confidential Information other than to its Representatives who: (a) need to know such Confidential Information for purposes of a Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (b) have been informed of the confidential nature of the Confidential Information and the Party's obligations under this Section 9(c); and (c) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9(c).
safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; and
ensure its Representatives' compliance with and be responsible and liable for any of its Representatives' noncompliance with, the terms of this Section 9(c).
Each Party shall be responsible for any breach of or non-compliance with this Section 9 by any of its Representatives.
Compelled Disclosures. If a Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, that Party shall: (a) promptly, and prior to such disclosure, notify the other Party in writing of such requirement so that the Party can seek a protective order or other remedy, or waive its rights under Section 9(c); and (b) provide reasonable assistance to the other Party in opposing such disclosure or seeking a protective order or other limitations on disclosure.
10. PUBLICITY. Neither party will use the name of the other party in publicity activities without the prior written consent of the other, except that Company agrees that TWO may use Client's name in customer listings calls with its investors as part of TWO's marketing efforts (including reference calls and stories, press testimonials, etc.).
11. PARTIES’ REPRESENTATIONS.
The Parties each represent and warrant as follows:
Each Party has full power, authority, and right to perform its obligations under the Agreement.
This Agreement is a legal, valid, and binding obligation of each Party, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors’ rights generally and equitable remedies).
Entering into this Agreement will not violate the charter or bylaws of either Party or any material contract to which that Party is also a party.
TWO hereby represents and warrants as follows:
The Project Deliverable will be fully operable, meet all applicable specifications, and function in all respects, in conformity with this Agreement
TWO has the right to control and direct the means, details, manner, and method by which the services required by this Agreement will be performed.
TWO has the experience and ability to perform the Services required by this Agreement.
TWO has the right to perform the Services required by this Agreement at any place or location, and at such times as TWO shall determine.
The Services shall be performed in accordance with and shall not violate any applicable laws, rules, or regulations.
TWO is responsible for paying all ordinary and necessary expenses of itself or its staff.
The Company hereby represents and warrants as follows:
The Company will provide the compensation as outlined in the SOW.
The Company shall provide such other assistance to TWO as reasonably required by TWO.
12. WARRANTIES.
Performance. TWO hereby warrants and represents that for a period of 90 days following delivery of the Project Deliverable to Client pursuant to the SOW (the “Warranty Period”), the Project Deliverable will be free from programming errors and defects in workmanship and materials, and will conform to the specifications of the SOW. If programming errors or other defects are discovered during the Support Period, TWO shall promptly remedy those errors or defects at its own expense.
No Disablement. TWO hereby warrants and represents that the Project Deliverable, when delivered or accessed by Client, will be free from material defects, and from viruses, logic locks, and other disabling devices or codes, and in particular will not contain any virus, Trojan horse, worm, drop-dead devices, trap doors, time bombs, or other software routines or other hardware component that could permit unauthorized access, disable, erase, or otherwise harm the Project Deliverable or any software, hardware, or data, cause the Project Deliverable or any software or hardware to perform any functions other than those specified in this Agreement, halt, disrupt, or degrade the operation of the Project Deliverable or any software or hardware, or perform any other such actions.
13. NATURE OF RELATIONSHIP.
Independent Contractor Status. TWO agrees to perform the Services hereunder solely as an independent contractor. The Parties agree that nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the Parties, or as authorizing either Party to act as the agent of the other. TWO is and will remain an independent contractor in its relationship to Client. The Company shall not be responsible for withholding taxes with respect to TWO’s compensation hereunder. TWO shall have no claim against Client hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. Nothing in this Agreement shall create any obligation between either Party and a third party.
Indemnification of Company by TWO. The Company has entered into this Agreement in reliance on information provided by TWO, including TWO’s express representation that it is an independent contractor and in compliance with all applicable laws related to work as an independent contractor. If any regulatory body or court of competent jurisdiction finds that TWO is not an independent contractor and/or is not in compliance with applicable laws related to work as an independent contractor, based on TWO’s own actions, TWO shall assume full responsibility and liability for all taxes, assessments, and penalties imposed against TWO and/or Client resulting from such contrary interpretation, including but not limited to taxes, assessments, and penalties that would have been deducted from TWO’s earnings had TWO been on Client’s payroll and employed as an employee of Client.
14 .NO CONFLICT OF INTEREST; OTHER ACTIVITIES.
TWO hereby warrants to Client that, to the best of its knowledge, it is not currently obliged under any existing contract or other duty that conflicts with or is inconsistent with this Agreement. During the Term, TWO is free to engage in other development activities; provided, however, TWO shall not accept work, enter into contracts, or accept obligations inconsistent or incompatible with TWO’s obligations or the scope of Services to be rendered for Client pursuant to this Agreement.
15. TERMINATION.
This Agreement may be terminated by either Party
for a material breach of any provision of this Agreement by the other Party, if the other Party’s material breach is not cured within thirty (30) days of receipt of written notice thereof. This shall include any delays to the timeline specified in the SOW.
if the other party is convicted of any crime or offense, fails or is guilty of serious misconduct in connection with performance under this Agreement.
Responsibilities after Termination. Notwithstanding the termination of the agreement for any reason, the parties acknowledge that Client will have a continuing obligation to pay TWO for any Services completed prior to termination.
16. RETURN OF PROPERTY. Within three (3) days of the termination of this Agreement, whether by expiration or otherwise, each Party agrees to return to the other Party products, samples, models, or other property and all documents, retaining no copies or notes, relating to Client’s business including, but not limited to, reports, abstracts, lists, correspondence, information, computer files, computer disks, and all other materials and all copies of such material obtained by the a Party.
17. INTELLECTUAL PROPERTY
Background Technology and License. Excluding Client Provided Materials, TWO retains full ownership of any pre-existing software, code, libraries, frameworks, tools, algorithms, or proprietary technology used in the creation of the Project Deliverables ("Background Technology"). In no event will Client obtain a property interest in any of TWO’s proprietary property, which TWO may use in connection with performance of Services hereunder.
License. TWO grants to Client receives a perpetual, worldwide, non-exclusive, non-transferable license to use the Background Technology as integrated into the Project Deliverable.
New Developments. Any code, software, or deliverables created exclusively for the Client ("Project Deliverables") shall be owned by the Client only upon full payment of all fees and expenses for that Project. Notwithstanding the foregoing, TWO retains the right to reuse general programming skills, knowledge, and reusable components not unique to Client’s business which it develops in the course of developing the Project Deliverables and performing the Services for Client.
18. INDEMNIFICATION.
Of Company by TWO. TWO shall indemnify and hold harmless Client and its officers, members, managers, employees, agents, contractors, sublicensees, affiliates, subsidiaries, successors and assigns from and against any and all damages, liabilities, costs, expenses, claims, and/or judgments, including, without limitation, reasonable attorneys’ fees and disbursements (collectively, the “Claims”) that any of them may suffer from or incur and that arise or result from:
Any third-party claim that the Project Deliverable or any use of the Project Deliverable in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights;
TWO’s breach of any representation, warranty, covenant, or obligation of TWO under this Agreement; or
Any gross negligence or willful misconduct of TWO arising from or connected with TWO’s carrying out of its duties under this Agreement.
TWO will have no liability hereunder for damages resulting from Client’s continued use of the infringing software by Client following receipt of such notice from TWO. Should any software or intellectual property provided, developed or used by TWO under this Agreement become, or in TWO’s opinion be likely to become the subject of a claim of infringement of a copyright or patent, TWO will at its option either immediately procure for Client the right to continue using the intellectual property developed by TWO under this Agreement, or will replace or modify the intellectual property developed by TWO under this Agreement to make it non-infringing, so long as functionally equivalent to the replaced intellectual property. If neither of the foregoing alternatives is reasonably and timely available to TWO after making best efforts to do so, then TWO may terminate this Agreement upon reasonable notice to Client and upon a return to Client of all fees paid with respect to the infringing software and related SOW.
Client will give TWO prompt written notice of any claim of infringement of which it becomes aware, fully cooperate in the defense of any such claim at TWO’s expense and allow TWO to settle and/or compromise any such claims as TWO deems appropriate, provided such settlement does not infer any liability or wrongdoing on Client. Failure of Client to do so will relieve TWO of its indemnification obligation or liability pursuant to this indemnification provision to the extent such failure materially prejudices TWO’s rights with respect to such defense. Client will have the right to employ its own counsel for any such claim, but the fees and expenses of such counsel will be borne by Client.
Of TWO by Company. The Company shall indemnify and hold harmless TWO from and against all Claims that it may suffer from or incur and that arise or result primarily from
Any third-party claim that any materials provided by Company to TWO in the development of the Project Deliverable infringes or misappropriates such third party’s intellectual property rights; or
Company’s breach of any representation, warranty, covenant, or obligation of Company under this Agreement.
19. REPRESENTATIONS
No Intellectual Property Infringement by TWO. TWO hereby represents and warrants that the use and proposed use of the Project Deliverable by Client or any third party does not and shall not infringe, and TWO has not received any notice, complaint, threat, or claim alleging infringement of, any trademark, copyright, patent, trade secrets, industrial design, or other rights of any third party in the Project Deliverable, and the use of the Project Deliverable will not include any activity that may constitute “passing off.” To the extent the Project Deliverable infringes on the rights of any third party, TWO shall obtain a license or consent from such third party permitting the use of the Project Deliverable.
No Intellectual Property Infringement by Company. The Company represents to TWO and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to TWO for inclusion in the Project Deliverable are owned by Client, or that Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend TWO and its subcontractors from any liability (including attorneys’ fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by Client.
20. AMENDMENTS. No amendment, change, or modification of this Agreement shall be valid unless in writing and signed by both Parties.
21. ASSIGNMENT. The Company may assign this Agreement freely, in whole or in part. TWO may not, without the written consent of Client, assign, subcontract, or delegate its obligations under this Agreement, except that TWO may transfer the right to receive any amounts that may be payable to it for its Services under this Agreement, which transfer will be effective only after receipt by Client of written notice of such assignment or transfer.
22. SUCCESSORS AND ASSIGNS. All references in this Agreement to the Parties shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the Parties.
23. FORCE MAJEURE. A Party shall be not be considered in breach of or in default under this Agreement on account of, and shall not be liable to the other Party for, any delay or failure to perform its obligations hereunder by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that Party’s reasonable control (each a “Force Majeure Event”); provided, however, if a Force Majeure Event occurs, the affected Party shall, as soon as practicable:
notify the other Party of the Force Majeure Event and its impact on performance under this Agreement; and
use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder.
24. NO IMPLIED WAIVER. The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party's right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.
25. NOTICE. Any notice or other communication provided for herein or given hereunder to a Party hereto shall be in writing and shall be given in person, by overnight courier, or by mail (registered or certified mail, postage prepaid, return-receipt requested) to the respective Parties as set forth in the SOW.
26. DISPUTE RESOLUTION; CHOICE OF LAW. The Parties shall make a good-faith effort to amicably settle by mutual agreement any dispute that may arise between them under this Agreement. The foregoing requirement will not preclude either Party from seeking injunctive relief as it deems necessary to protect its own interests. This Agreement will be construed and enforced in accordance with the laws of the State of California, excluding its choice of law rules. In the event that suit shall be brought by either party to this Agreement, the parties agree that venue shall be exclusively vested in the state courts of the County of Santa Clara, or if federal jurisdiction is appropriate, exclusively in the United States District Court, Northern District of California.
27. COUNTERPARTS/ELECTRONIC SIGNATURES. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature.
28. SEVERABILITY. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.
29. ENTIRE AGREEMENT. This Agreement constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties.
30. HEADINGS. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.