Master Services Agreement

THIS MASTER SERVICES AGREEMENT (“Agreement”) is by and between Formant, Inc.., a Delaware corporation with offices at 203 Flamingo Road Mill Valley, CA 94941,  (“Formant”), and the Client listed on the Scope of Work (“SOW”) which references and is bound by this Agreement (“Client”).  Formant and Client may be individually referred to as a “Party” or collectively as the “Parties” under this Agreement.  All definitions in this Agreement apply to both their singular and plural forms, as the context may require.  The terms “herein”, “hereunder”, and “hereof” and similar expressions refer to this Agreement.

1. Scopes of Work.  

1. Scopes of Work.  By accepting a Scope of Work, Client accepts and is bound by the terms of this Agreement. At the Client’s request, Formant may work with Client to define and issue Scopes of Work (each a “Scope of Work”), and define a price associated with each.   A Scope of Work shall only be binding if agreed to in writing by both Parties.  Client hereby engages Formant to perform the services (the “Services”) and deliver the deliverables (the “Deliverables”) described in each Scope of Work.   Formant’s timely and proper performance of its obligations under a Scope of Work is wholly contingent and dependent upon the nature and contents of those Client materials set forth in the applicable Scope of Work and the time period in which such materials are supplied to Formant.

2.    Third party Products.  In connection with the Deliverables or the Services, Formant may purchase on behalf of Client the third party hardware and/or software products (the “Third party Products”), if any, set forth in the applicable Scope of Work(s).

3.     Change Request Procedure.  The Parties acknowledge that each Scope of Work may be revised from time to time during the Term.  Either Party may, prior to the delivery of a Deliverable or termination of the Services under a Scope of Work, provide written notice to the other Party proposing changes to such Scope of Work (a “Change Proposal”).  Following a Change Proposal, the Parties shall promptly meet to determine whether, and with what modifications, the proposed change is mutually agreeable.  No Change Proposal shall have any contractually binding effect until formally agreed to in writing by the Parties.  Any such Change Proposal agreed to in writing shall be attached to the applicable Scope of Work and be incorporated by reference herein.

1. Fees and Expenses; Taxes.  Client shall pay Formant, in accordance with the procedure set forth in each Scope of Work, the fees, costs and expenses (collectively, the “Fees”) identified in such Scope of Work for Formant’s performance of Services, delivery of Deliverables, or acquisition of Third party Products, as adjusted to reflect any changes in the scope of work under a Change Proposal or that Client authorizes in writing and to which Formant agrees in writing.  The Fees billed to Client by Formant are exclusive of taxes and other similar charges, and Client shall be solely responsible for and shall pay all duties, fees, sales (unless an exemption certificate is furnished by Client to Formant), use, value-added, and similar taxes (except for taxes imposed on Formant’s net income) in connection with this Agreement or furnish Formant with evidence acceptable to the taxing authority to sustain an exemption therefrom. Client will make all payments of all Fees to Formant within thirty (30) days after the Client’s receipt of the applicable invoice therefore, unless other payment terms are set forth in the applicable Scope of Work.  All such payments hereunder shall be made by Client free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of the Fees to Formant will be Client’s sole responsibility.

2. Intellectual Property.  

   1.   Ownership. 

      1.  Unless otherwise expressly set forth in the applicable Scope of Work, Formant (or its licensors) shall at all times own all right, title and interest in and to all code (both object code and source code), tools, routines, programs, designs, technology, ideas, processes, formulas, techniques, improvements, inventions and works of authorship, including, without limitation, related documentation (“Documentation”) which were previously owned or licensed to Formant or which are made, developed, conceived or reduced to practice by Formant in connection with this Agreement and all Intellectual Property Rights (defined below) contained therein (collectively, the “Formant IP”).  Subject to the terms of this Agreement, including, without limitation, the payment of by Client of applicable Fees, Formant hereby grants to Client a nonexclusive, worldwide, nontransferable (except to a permitted assignee pursuant to Section 9.10) with no right to sublicense, royalty-free, fully paid up license to use the Formant IP solely for Client’s internal business purposes, and solely in conjunction with and solely as necessary to use the Deliverables and Formant Platform in accordance with Formant’s Terms of Use found at https://formant.io/terms-of-use.  

      2.   Notwithstanding the foregoing, Client shall own all Intellectual Property (defined below) furnished to Formant by Client hereunder (the “Client IP”), and shall, upon payment to Formant of applicable Fees, obtain title to the Third Party Products acquired on behalf of Client by Formant per the applicable Scope of Work; provided that Client shall only have a license to third party software pursuant to the applicable licensor’s end user license agreement for such software.  For purposes of this Agreement, “Intellectual Property” or “Intellectual Property Rights” collectively means any and all patents, patent registrations, patent applications, business processes, copyrights, data rights, trademarks, trade names, service marks, service names, trade secrets, mask works, moral rights, know-how or any other similar right arising or enforceable under the laws of the United States, any other jurisdiction, or bilateral or multi-lateral treaty regime.

   2.   Restrictions.  Except as expressly permitted herein or in an applicable Scope of Work, Client shall not, and shall not permit any of its employees or any third party to: (i) use, reproduce or distribute the Formant IP in any manner inconsistent with the license grants set forth in Section 3.1 above; (ii) modify, translate into any code or language, or make any derivative work of the Formant IP or any parts thereof; (iii) decompile, disassemble, reverse engineer or otherwise attempt to reconstruct, discover or use the source code of the Formant IP for any purpose or provide or make available the source code to any third party, (except to the limited extent, if any, permitted under applicable law for interoperability purposes); (iv) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the Formant IP to or for the benefit of any third party; or (v) remove any product identification, copyright or other proprietary notice from the Formant IP.  Client shall reproduce all such notices on all copies of the Formant IP.

   3. Platform Improvements. Client acknowledges that Formant is in the business of developing robot as a service applications and solutions and that any improvements, modifications, updates, upgrades or derivatives of the Formant IP created by Formant, provided, that, the foregoing does not include any Confidential Information of Client, will be the sole and exclusive property of Formant. In addition, Subscriber acknowledges that any coding, programming or design techniques, architecture, trade secrets, methodology, APIs, functions, applications, knowledge, experience, skills, other know-how and related intellectual property rights that Formant creates in connection with the Professional Services that do not constitute a custom development work will remain the sole and exclusive property of Formant.

1. Warranties and Disclaimer.

   1. Formant Limited Warranty. For a period of ninety (90) days following delivery of a Deliverable to Client (the “Warranty Period”), Formant warrants that such Deliverable shall substantially conform to the applicable specifications for such Deliverable as set forth in the applicable Scope of Work.  In the event of a breach of the foregoing limited warranty, Client shall provide written notice to Formant detailing the nature of the non-conformance.  Upon receipt of such notice Formant may, at its sole discretion, either use commercially reasonable efforts to repair or replace the Deliverable with a new version which conforms to the foregoing limited warranty or, if such repair or replacement is not commercially reasonable, Formant may terminate this Agreement, in which case Formant agrees to refund to Client the Fees previously paid by Client for such Deliverable.  Following the expiration of the Warranty Period, Formant may, in its sole discretion, decide whether or not to perform any Services with respect to such Deliverable (all such work to be performed at Formant’s then-current rates) unless: (i) the Parties have entered into a separate written maintenance agreement regarding such Deliverable; or (ii) such maintenance is provided for in the applicable Scope of Work.

   2.   Exceptions.  The limited warranty in Section 4.1: (a) shall not apply to any Deliverable provided to Client by Formant on a time-and-materials basis; and, (b) shall be null and void to the extent that any such nonconformity is caused by: (i) any modification of the Deliverable by Client or any third party, except as expressly authorized in writing by Formant; (ii) Client’s failure to implement any updates to such Deliverable as made available by Formant to Client; (iii) any use of the Deliverable not in accordance with its intended purpose or in accordance with the Formant Terms of Use found at https://formant.io/terms-of-use; or (iv) any failure related to any Third party Product, third party software, or any other function or activity under Client’s direction or control.

   3.   Remedies Exclusive.  THE REMEDIES SET FORTH IN SECTION 4.1 ARE FORMANT’S SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDIES FOR A BREACH BY FORMANT OF THE LIMITED WARRANTY SET FORTH IN SECTION 4.1.

   4.   DISCLAIMER.   EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4.1: (A) ALL DELIVERABLES PROVIDED BY FORMANT ON A TIME-AND-MATERIALS BASIS, AND ALL SERVICES AND THIRD PARTY PRODUCTS ARE PROVIDED TO CLIENT SOLELY ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND; AND, (B) FORMANT MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, AND EXPRESSLY DISCLAIMS, ANY EXPRESS, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE) UNDER THIS AGREEMENT OR REGARDING FORMANT OR ANY DELIVERABLE, SERVICE OR OTHER MATTER.

   5. Client Representations and Warranties.  Client represents, warrants, and covenants on a continuing basis that: (i) it has all right, title and interest, and all licenses necessary and appropriate to permit Formant to perform the Services and the delivery of the Deliverables described herein, (ii) Client is solely responsible to and shall ensure that the Services and the Deliverables (including, without limitation, their use and results) are compliant with all applicable laws and regulations; and, (iii) Client’s performance of its obligations hereunder, and its use of the Deliverables, shall comply with all applicable laws and regulations, and shall not violate or infringe any Intellectual Property Rights, publicity, privacy, confidentiality, contractual or other rights, of any third party.

2. Limitation of Liability.  

• NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, FORMANT’S AGGREGATE LIABILITY TO CLIENT OR ANY THIRD PARTY UNDER THIS AGREEMENT IS LIMITED TO THE AMOUNTS PAID BY CLIENT TO FORMANT UNDER THIS AGREEMENT DURING THE SIX-(6)-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.  FURTHERMORE, FORMANT WILL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS OR ANY SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF FORMANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN THOUGH NO EXPRESS OR IMPLIED INDEMNITY IS PROVIDED TO CLIENT UNDER THIS AGREEMENT.  FORMANT SHALL NOT BE RESPONSIBLE FOR OR LIABLE IN ANY AMOUNT REGARDING ANY DAMAGE TO THIRD PARTY PRODUCTS OR OTHER PRODUCTS, NO MATTER THE CAUSE OR THE SOURCE OF THE DAMAGE.  THE FOREGOING PROVISIONS LIMITING DAMAGES AND EXCLUDING CONSEQUENTIAL DAMAGES WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES FOR BREACH OF WARRANTY SET FORTH HEREIN.  ANY ACTION BROUGHT UNDER THIS AGREEMENT MUST BE BROUGHT NOT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE.  THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.

• Indemnity.  Client shall indemnify, defend and hold Formant and its officers, directors, shareholders, employees, agents and representatives (each an “Formant Indemnitee”) harmless from and against any and all suits, actions, losses, demands, claims, damages, or other liabilities (including reasonable attorney’s fees and costs) that may be suffered or incurred by any Formant Indemnitee arising from or relating to: (i) Client’s use or misuse of the Deliverables or the Services; or,  (ii) any breach of this Agreement or any Scope of Work by Client.

1.    Confidentiality.  

   1.   Description.  It is expected that the Parties will disclose to each other certain confidential information (“Confidential Information”) and each Party recognizes the value and importance of the protection of the other’s Confidential Information.  All Confidential Information of one Party (the “Disclosing Party”) that is disclosed to the other Party (the “Recipient”) shall remain the sole property of the Disclosing Party (or its licensors), which shall own all rights (including, without limitation, Intellectual Property Rights), title, and interest in and to such Confidential Information.  Only information which is identified as confidential pursuant to the next paragraph shall be deemed Confidential Information hereunder; except that Client acknowledges and agrees that the Formant IP constitutes Formant’s Confidential Information, and Formant acknowledges and agrees that the Client IP constitutes Client’s Confidential Information.

   2. Designation.  A Disclosing Party may designate information as confidential by: (i) marking written information or other tangible media as “Confidential” or with a similar legend prior to disclosure; (ii) indicating in the visual display of information that such information is confidential; (iii) identifying oral information as confidential at the time of disclosure to Recipient; or (iv) notifying the Recipient in writing prior to disclosure that certain specifically identified types of information are considered to be confidential. Notwithstanding anything to the contrary herein, the Formant Platform, Scope of Work and any information about the function or performance of the Formant Platform or any Scope of Work related to this Agreement constitutes information disclosed by Company to you and shall be treated as Confidential Information by you.

   3. Procedures.  Each Recipient agrees that at all times and notwithstanding any termination or expiration of this Agreement it will hold in strict confidence and not disclose to any third party Confidential Information of the Disclosing Party, except as approved in writing by the Disclosing Party, and will use the Disclosing Party’s Confidential Information only for the purpose of performing Recipient’s obligations under this Agreement, and not for any other purpose, whether for the Recipient’s own benefit or the benefit of any third party.

   4.   Exceptions.  The obligations of the Recipient regarding the Disclosing Party’s Confidential Information shall not apply to any materials or information which the Recipient can demonstrate, through documented evidence: (i) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known or available; (ii) is known by the Recipient at the time of receiving such information as evidenced by its records; (iii) is hereafter furnished to the Recipient by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by the Recipient without access to or use of any Confidential Information of the other Party; or (v) is the subject of a written permission to disclose provided by the Disclosing Party to the Recipient.  Notwithstanding any other provision of this Agreement, disclosure of Confidential Information shall not be precluded if such disclosure (a) is in response to a valid order of a court or other governmental body, provided, however, that the responding Party shall first have given notice to the other Party hereto in order that such other Party may obtain a protective order requiring that the Confidential Information so disclosed be used only for which the order was issued and the responding Party uses reasonable efforts to have such information be treated as confidential and under seal; (b) is otherwise required by law; or (c) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.

   5. Retained Rights of Formant.  Notwithstanding anything to the contrary herein, Formant’s use or dissemination of information of general application (not identifiable with Client and not specifically applicable to Client’s business) which may be retained in the unaided memory of Formant personnel, including formulae, patterns, compilations, programs, devices, methods, techniques or processes, shall not be considered a breach of Formant’s confidentiality obligations or any other provision of this Agreement.

2. Term and Termination.  

   1. Term; Termination.  This Agreement is effective as of the Effective Date on the Scope of Work and will continue for 12 month(s) thereafter. unless earlier terminated as set forth below (the “Term”).  Either Party may terminate this Agreement or any Scope of Work for convenience, for any or no reason, at any time upon sixty (60) days prior written notice to the other Party.   Either Party may terminate this Agreement for cause upon written notice to the other Party, if the other Party breaches this Agreement and does not cure such breach within thirty (30) days following receipt of written notice thereof from the non-breaching Party; provided, however, that Formant may terminate this Agreement or any Scope of Work immediately upon written notice if Client breaches Section 3 or 7.  Such right to terminate this Agreement for cause shall be in addition to any other remedies available to the terminating Party at law or in equity.  

   2. Effect of Termination.  Upon termination of this Agreement for any reason: (i) Client and Formant shall promptly return or destroy all Confidential Information and other property of the other Party and upon request, shall certify in writing to such return and/or destruction; and (ii) all amounts due to Formant under the Scopes of Work shall become immediately due and payable, and Client shall pay such amounts pursuant to Section 2.

   3. Survival.  Any payment obligation of a Party, the rights and obligations contained in Sections 2 (“Fees and Expenses; Taxes”), 3 (“Intellectual Property”), 4 (Warranties and Disclaimers”), 5 (“Limitation of Liability”), 6 (“Indemnity”), 7 (“Confidentiality”), 8.2 (“Effect of Termination”) and 9 (“General”) and any other terms of this Agreement which contemplate continuing effectiveness shall survive the termination or expiration of this Agreement for any reason..

3. General.

   1. Non-exclusive Agreement; Non-Solicitation.  This Agreement is non-exclusive, and nothing expressed or implied in this Agreement shall be deemed to restrict either Party’s right or ability, whether during the Term or at any time thereafter, to: (i) directly or indirectly sell, license, use, promote, market, exploit, develop or otherwise deal in any product or service of any kind in any location; or (ii) enter into any business arrangement of whatever nature or description, including without limitation arrangements similar to those contemplated in this Agreement, with any other entity in any location.  Client hereby agrees not to solicit for purposes of employment any Formant personnel who have been introduced to Client, or who are or have been assigned to perform work for Client hereunder, until one (1) year after the termination of this Agreement.

   2. Independent Contractor.  Formant’s relationship with Client is solely that of an independent contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, representation, joint venture or employment relationship between the Parties.

   3. Governing Law; Forum; Equitable Relief.  This Agreement and the Parties’ rights and obligations hereunder shall for all purposes be solely and exclusive governed by, and construed and enforced under, the laws of the State of California, United States of America, without reference or giving effect to any conflict of laws or other principles which would result in the application of a different body of law.  Any and all disputes arising hereunder, which cannot be resolved by the Parties, shall be brought and resolved solely and exclusively in the state and federal courts located in San Diego, California, and the Parties hereby irrevocably consent to venue in, and the exclusive jurisdiction of such courts.  Notwithstanding the foregoing or anything else expressed or implied in this Agreement, either Party may, at any time, seek injunctive or other equitable relief, wherever such Party deems appropriate, to protect or enforce such Party’s rights hereunder.  The prevailing Party in any proceeding or lawsuit regarding the Agreement shall be entitled to receive its costs, expert witness fees, and reasonable attorneys fees, including costs and fees on appeal.

   4. Notices.  All notices or reports permitted or required under this Agreement shall be in writing and shall be by personal delivery, facsimile transmission, or by certified or registered mail, return receipt requested, and deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission.  Notices shall be sent to the addresses set forth on the first page of this Agreement or such other address as either Party may specify in writing.  All notices to Formant should also be sent as a digital copy to legal@formant.io.

   5. Severability.  If any provision of this Agreement is unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole.  In such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or court decisions.

   6. Waiver.  The failure of either Party to require performance by the other Party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either Party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

   7. Export.  Client acknowledges that the laws and regulations of the United States may restrict the export and re-export of commodities and technical data of United States origin, including, without limitation, the Deliverables.  Client agrees that it will not export or re-export the Deliverables in any form, without the appropriate United States and foreign governmental licenses.

   8. Force Majeure.  Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, shortages of electric power or other utilities, labor conditions, earthquakes, material shortages, pandemics or any other cause beyond the reasonable control of such Party.

   9. Assignment.  Client may not assign this Agreement, or delegate its obligations hereunder, in whole or in part, without Formant’s prior written consent.  Any assignment in violation of the foregoing limitation will be null and void.  Formant may freely assign this Agreement or delegate it obligations hereunder, in whole or in part, to any third party; provided however, that such third party assignee or delegatee agree in writing to be bound by the terms hereof.  This Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns.

   10. Entire Agreement.  This Agreement (including any Scope of Work) completely and exclusively states the agreement of the Parties regarding its subject matter.  It supersedes, and its terms govern, all prior or contemporaneous proposals, agreements, or other communications between the Parties, oral or written, regarding such subject matter.   Formant may amend this Agreement at any time at its sole discretion upon posting the updated Agreement on this website and/or upon email notice to Client; provided, that, any such amendment will not apply with respect to, or amend, any Scope of Work in effect prior to the date of such amendment.

By accepting a Scope of Work, Client accepts and is bound by the terms of this Agreement.