THIS SERVICE AGREEMENT (the “Agreement”) is made and entered effective as of the 1st day of April, 2021(the “Effective Date”), by and between KASPER AI CORP (both collectively, “Company”), and (the “Customer”). Hereinafter, Company and Customer are sometimes referred to together as the “Parties” and individually as a “Party.” In consideration of the mutual covenants and agreements hereinafter set forth, the Parties hereby agree as follows:
- “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common Control with the subject entity.
- “Agreement” means this Service Agreement.’
- “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Company includes the Services and Content, and the terms and conditions of this Agreement and any schedules and exhibits attached hereto. Confidential Information of each party includes, but is not limited to, information and data concerning trade secrets, software programs (including source and object codes), business methods, techniques, concepts, systems, procedures, know-how, inventions, business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does 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 without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
- “Content” means information obtained by Company from publicly available sources or its third-party content providers and made available to Customer through the Services.
- “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
- “Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates).
- “Customer Data” means information, data or other content that is provided by the Customer or a User, for the purpose of Company’s performance of the Services or the Customer’s or the User’s use of the Services but excluding Content and Third-Party Applications.
- “Force Majeure Event” means any circumstances beyond either Party’s reasonable control, including, but not limited to, an act of God, government actions or regulations, flood, fire, earthquake, tsunami, explosion, war, civil unrest, act of terror, strike or other labor problem (other than one involving Company’s employees), Internet service provider failure or delay, national or regional emergency, or cyber security attack.
- “Harmful Code” means any software, hardware or other technologies, devices, or means, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner, any (i) computer, software, firmware, hardware, system or network, or (ii) any application or function of any of the foregoing or the integrity, use, or operation of any data processed thereby; or prevent Customer or any User from accessing or using the Services as intended by this Agreement, and includes any virus, bug, Trojan horse, worm, backdoor, malware or other malicious computer code, and any time bomb or drop-dead device.
- “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.
- “Third-Party Application” means a web-based, mobile, offline or other services application functionality that interoperates with the Services, that is provided by Customer or by a third party. Any Third-Party Applications, other than those obtained or provided by Customer, will be identifiable as such.
- “Updates” means a subsequent release of the Services that Company generally makes available to its supported customers at no additional fee either during the Term, but shall not include any release, new version, option or future application which Company licenses for a separate charge.
- “Users” means the employees or contractors of Customer who access and use the Services.
- Services. During the Term, Company shall provide to the Customer, for use by Customer, its Affiliates and its Users, the Company’s front office workflow software (the “Services”), in accordance with the terms and conditions of this Agreement. The Services shall conform to the services selected by Customer as set forth in Schedule A. Where applicable, the Customer shall make available to Company such facilities, secure remote access connections, equipment, assistance, and information and data from it and its Representatives as is reasonably necessary to support Company, in its provision of the Services.
- License Grant. Subject to Customer’s compliance with this Agreement, Company hereby grants to Customer a non-exclusive, limited, non-transferable, non-sublicensable (except as otherwise specifically provided herein) license to copy, install and make use of the Services, together with and all fixes, updates, modifications, enhancements and new releases of the foregoing.
- Availability. Companywill (a) make the Services and Content available to Customer pursuant to this Agreement and Schedule A, (b) provide applicable Companystandard support for the Service to Customer at no additional charge, and/or upgraded support, if purchased, (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Companyshall give advance electronic notice), and (ii) any unavailability caused by Force Majeure, and (d) provide the Services in accordance with laws and government regulations applicable to Company’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement
- Personnel. Company will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Company’ obligations under this Agreement, except as otherwise specified in this Agreement.
- Updates. Company may provide Customer with Updates and upgrades to the Service in at its sole discretion in such form as Company find appropriate, from time to time. If the Service is an Update to a previous version of the Services, Customer must possess a valid license to such previous version in order to use the Update. Nothing in this Agreement shall be construed as to grant Customer any rights or licenses with regard to the new release or version of the Services or to entitle Customer to any new release, version or product. This Agreement does not obligate Company to develop or provide any Updates. Notwithstanding the foregoing, any Updates that Customer may receive become part of the Services and the terms of this Agreement apply to them (unless this Agreement is explicitly superseded by a succeeding agreement accompanying such Update or modified version of the Services).
- USE OF SERVICES AND CONTENT
- Users. Customer will have the sole right and responsibility for managing its and its Users’ access to the Services. Customer shall (a) inform all Users of Customer’s own policies and practices that are relevant to the Users’ use of the Services; and (b) obtain all rights, permissions and consents from Users and other Customer personnel or contractors that are necessary to grant the rights and licenses set forth in this Agreement, and for the lawful use and operation of the Services. Customer is responsible for all Users’ login credentials, regardless of whether such User is an administrator or otherwise. Accordingly, Customer shall be responsible for all resulting damages, losses, or liability if usernames and passwords are not kept confidential by Customer or the Users, including for actions taken on the Services by unauthorized third parties logging into and accessing the Services through the User accounts.
- Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Third-Party Applications with which Customer uses the Services or the Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Company promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement and applicable laws and government regulations, and (e) comply with terms of service of any Third-Party Applications with which Customer uses the Services. Any use of the Services in breach of the foregoing by Customer or Users that in Company’s judgment threatens the security, integrity or availability of Company’s Services, may result in Company’s immediate suspension of the Services, however Company will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
- Restrictions. Customer will not (a) make the Services available to anyone other than Customer or any Users, or use the Services for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in this Agreement or any applicable Schedule, (b) sell, resell, license, sublicense, distribute, make available, rent or lease the Services, or include the Services in a service bureau or outsourcing offering, (c), provide any demonstrations, previews or presentations of the Services and/or the Services features to any third parties without Company’s prior written consent, (d) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (e) use the Services to store or transmit Harmful Code, (f) interfere with or disrupt the integrity or performance of the Services, (g) attempt to gain unauthorized access to the Services or its related systems or networks, (h) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, or use the Services to access or use any of Company Intellectual Property except as permitted under this Agreement, (i) modify, copy, or create derivative works based on the Services or any part, feature, function or user interface thereof, (k) copy Content except as permitted in this Agreement, (l) frame or mirror any part of the Services, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in this Agreement, (m) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Services or access it to (i) build a competitive product or service, (ii) build a product or service using similar ideas, features, functions or graphics of the Services, (iii) copy any ideas, features, functions or graphics of the Services, or (iv) determine whether the Services are within the scope of any patent
- THIRD-PARTY PRODUCTS ANDSERVICES
- Third Party Products and Services. Company or third parties may make available third-party products or services, including, for example, Third-Party Applications and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Third-Party provider, product or service is solely between Customer and the applicable Third-Party provider. Company does not warrant or support Third-Party Applications or other third-party products or Services, whether or not they are designated by Company as “certified” or otherwise, unless expressly provided otherwise the Agreement or an applicable Schedule. Company is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Application or its provider.
- Integration with Third-Party Applications. The Services may contain features designed to interoperate with Third-Party Applications. Company cannot guarantee the continued availability of such Service features and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Service features in a manner acceptable to Company.
- FEES ANDPAYMENT
- Fees. Customer will pay all fees specified in Schedule B (the “Fees”). Except as otherwise specified herein or in Schedule B, the payment obligations are non-cancelable, and fees paid are non-refundable.
- Invoicing and Payment. Customer shall make payment via check, ACH, or any other payment method reasonably acceptable to Company. Unless otherwise stated in Schedule B, all invoiced fees are due on the first day of each month. Customer is responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to such information.
- Overdue Charges. If any invoiced amount is not received by Company by the due date, then without limiting Company’ rights or remedies, (a) those charges may accrue late interest at the rate of five percent (5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Company may condition future renewals on payment terms shorter than those specified in Section 5.2.
- Suspension of Service and Acceleration. If any charge owing by Customer under this or any other agreement for Services is thirty (30) days or more overdue, Company may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Company will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the Section 14.7 below for billing notices, before suspending Services to Customer.
- Payment Disputes. Company will not exercise its rights under Section 5.3 or 5.4 if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
- Taxes. Company’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”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Company will invoice Customer and Customer will pay that amount unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Company is solely responsible for taxes assessable against it based on its income, property and employees.
- PROPRIETARY RIGHTS ANDLICENSES
- Reservation of Rights. Subject to the limited rights expressly granted hereunder, Company, its Affiliates and its licensors reserve all of their right, title and interest in and to the Services including all of their related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
- License by Customer. As between the Customer and Company, the Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data. Customer hereby grants Company, its Affiliates and applicable contractors and subcontractors, a worldwide, limited-term license to host, copy, use, transmit, and display the Customer Data, Third-Party Applications and program code created by or for Customer, each as appropriate for Company to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Third-Party Application together with the Services, Customer grants Company permission to allow the Third-Party Application and its provider to access Customer Data and information about Customer’s usage of the Third-Party Application as appropriate for the interoperation of that Third-Party Application with the Services. Subject to the limited licenses granted herein, Company acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data or any Third-Party Application.
- Feedback. Customer grants to Company and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or any Users relating to the operation of Company’s or its Affiliates’ Services.
- Protection of Confidential Information. As between the Parties, each Party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and subcontractors, who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither Party will disclose the terms of this Agreement to any third party other than its Affiliates, legal counsel and accountants without the other Party’s prior written consent, provided that a Party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section. Notwithstanding the foregoing, Company may disclose the terms of this Agreement to a contractor, subcontractor or Third-Party Application Provider to the extent necessary to perform Company’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
- Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the 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 that Confidential Information.
- No Implied Licenses. Nothing contained in this Section shall be construed as obligating a party to disclose its Confidential Information to the other party, or as granting to or conferring on a Party, expressly or impliedly, any rights or licenses to the Confidential Information of the other party. Nothing contained in this Section shall be construed as limiting or diminishing in any respect the scope of any licenses granted under this Agreement
- TERM ANDTERMINATION
- Term. The term of this Agreement commences on the Effective Date and, unless terminated earlier under the terms of this Agreement, will continue in effect until the day which is one (1) year from the Effective Date (the “Initial Term”). Customer will have the option to renew this Agreement for one (1) additional term, upon written notice given at least sixty (60) days before the expiration of the Initial Term (the “Renewal Term”, and, collectively with the Initial Term, the “Term”).
- Termination. A party may terminate this Agreement (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (iii) ceases to carry on business in the ordinary course.
- Payment upon Termination. If this Agreement is terminated by Company in accordance with Section 8.2 above, Customer will pay any unpaid fees covering the remainder of the Term (if not a month-to-month engagement) to the extent permitted by applicable law.
- Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall immediately: (i) cease any and all use of and access to the Service, (ii) delete (or, at Company’s request, return) any and all copies of any passwords or access codes and any other Company Confidential Information in its possession, and (iii) pay any outstanding amounts due for the Services provided through the termination date or otherwise contractually committed. Except for any exclusive remedies specified in this Agreement, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Unless otherwise mutually agreed by the Parties, termination of this Agreement pursuant to this Section shall terminate this Agreement and all other agreements that form part of this Agreement (including any schedule or exhibit hereto).
- Survival. Regardless of the circumstances of termination or expiration of this Agreement any schedule, exhibit or other attachment hereto, in whole or in part, any provision which by its nature extends beyond such termination or expiration will survive according to their terms, including, but not limited to, this Subsection 8.5 and the provisions of: Section 5 (Fees), Section 7 (Confidentiality), Section 8 (Termination), Section 9 (Representations and Warranties), Section 10 (Indemnification), Section 11 (Limitation of Liability), Section 12 (Disputes) and Section 13 (General Provisions)
- REPRESENTATIONS AND WARRANTIES
- Representations by Customer. Customer represents and warrants that: (a) Customer has all requisite corporate power and authority necessary to execute and deliver the Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby; (b) the Agreement has been duly authorized, executed and delivered, and constitutes a valid, legal and binding obligation of Customer enforceable against Customer in accordance with its terms, subject to any law affecting creditors’ rights; (c) the execution, delivery and performance by Customer of the Agreement do not and will not: (i) violate any law (including, without limitation, privacy, export control, obscenity and anti-spam laws), (ii) violate any agreement or order to which Customer is a party or by which Customer or its assets are bound; (d) Customer shall comply with all applicable international, national, state, regional and local laws and regulations, including, without limitation, privacy, trademark, patent, anti-spam, copyright and obscenity law in connection with the operation of the Services; (f) any software, data, equipment or other materials provided by Customer to Company will not infringe any third party Intellectual Property Rights nor any applicable law; and (e) Customer will not use the Services for unethical or illegal business practices or in violation of any obligation to a third party in using, operating, accessing or running the Services and shall not knowingly assist any other person or entity to so violate any obligation to a third party.
- Representations by Company. Company represents and warrants that: (a) it is a corporation incorporated and validly existing in the jurisdiction of its incorporation; (b) it has all required corporate power and capacity to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement; (c) the execution of this Agreement by the individual whose signature is set forth in this Agreement has been duly authorized by all necessary corporate action; (d) the Services will conform to and perform in accordance with the specifications and all requirements of this Agreement; (e) the Services are and will remain free of Harmful Code; and; (f) Company will perform all Services in a timely, professional and workmanlike manner with a level of care and skill consistent with generally recognized industry standards and practices for similar services.
- Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY PARTY DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER. COMPANY DOES NOT WARRANT THAT THE SERVICES HEREUNDER WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE SERVICES HEREUNDER WILL BE SECURE, ERROR-FREE, OR UNINTERRUPTED, AND COMPANY HEREBY DISCLAIMS ANY AND ALL LIABILITY ON ACCOUNT THEREOF TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
- Indemnification by Company. Company will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the Services infringes or misappropriates such third party’s Intellectual Property Rights (a “ClaimAgainst Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Company in writing of, a Claim Against Customer, provided Customer (a) promptly gives Company written notice of the Claim Against Customer, (b) gives Company sole control of the defense and settlement of the Claim Against Customer (except that Company may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Company all reasonable assistance, at Company’ expense. If Company receives information about an infringement or misappropriation claim related to a Service, Company may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Company’ representations under Section 9.2, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (i) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (ii) a Claim Against Customer arises from the use or combination of the Services or any part thereof with Services, hardware, data, or processes not provided by Company, if the Services or use thereof would not infringe without such combination; or (iii) a Claim against Customer arises from a Third-Party Application or Customer’s breach of this Agreement.
- Indemnification by Customer. Customer will defend Company, its officers, directors, employees, shareholders and Affiliates against any claim, demand, suit or proceeding made or brought against Company by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the Services, (b) a Third-Party Application provided by Customer, or (c) the combination of a Third-Party Application provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services or Content in an unlawful manner or in violation of this Agreement (each a “Claim”), and will indemnify Company from any damages, attorney fees and costs finally awarded against Company as a result of, or for any amounts paid by Company under a settlement approved by Customer in writing of a Claim, provided Company (a) promptly gives Customer written notice of the Claim, (b) gives Customer sole control of the defense and settlement of the Claim (except that Customer may not settle any Claim unless it unconditionally releases Company of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim arises from Company’s breach of this Agreement.
- Exclusive Remedy. This Section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
- LIMITATION OF LIABILITY. IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY FORM OR THEORY OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, EQUITY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION: (A) ANY ACT OR OMISSION OF ANY THIRD PERSON (INCLUDING, AS APPLICABLE, ANY THIRD PARTY PROVIDER), (B) ANY LOST PROFITS, OVERHEAD, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COST OF LOST OR DAMAGED DATA, (C) LIABILITIES TO THIRD PARTIES, ANY THIRD PARTY LOSSES OR CLAIM, INCLUDING ANY CUSTOMERS OF CUSTOMER, WHETHER SUCH LOSS OR ACT IS MADE DIRECTLY AGAINST COMPANY, OR (D) ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO ALL CIRCUMSTANCES. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY HEREIN, THE LIABILITY OF COMPANY FOR ANY CLAIM WHATSOEVER RELATING TO THE SERVICES OR THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF PAYMENTS PAID BY CUSTOMER TO COMPANY DURING THE PREVIOUS SIX-MONTH PERIOD IN CONNECITON WITH THE SERVICES RELATING TO SUCH LIABILITY.
- DISPUTE RESOLUTION. In the event a Party provides written notice to the other Party of any controversy, claim, dispute, difference or misunderstanding between the Parties arising out of or relating to this Agreement, each Party will designate managers to meet within ten (10) days and negotiate in good faith in an attempt to reach a mutually acceptable resolution. In the event the Parties are unable to resolve such matter through good faith negotiations within ten (10) days of such meeting each Party agrees to submit to arbitration in accordance with Section 12.2 below.
- ARBITRATION. The Parties agree that any dispute or controversy in connection with this Agreement, including its interpretation, will be conclusively settled by submission to arbitration (the “Arbitration”) in accordance with the rules of arbitration of the American Arbitration Act as amended from time to time. The Arbitration will be conducted in the State of New Jersey, or any other location that may be mutually agreed by the Parties, before a single arbitrator mutually agreeable to the parties (the “Arbitrator”). The initial costs of the Arbitrator will be borne equally by the Parties. The Arbitrator shall have the power to award costs in his or her discretion in making his or her award or decision. Nothing in this clause prohibits each Party from seeking injunctive relief against the other Party as referenced in this Agreement. The decision of the Arbitrator shall be final and binding and without any right of appeal. THE PARTIES ACKNOWLEDGE AND AGREE THAT BY AGREEING TO ARBITRATE, THEY ARE IRREVOCABLY AND UNCONDITIONALLY WAIVING ANY RIGHT TO BRING AN ACTION AGAINST THE OTHER IN A COURT OF LAW AND ARE WAIVING THE RIGHT TO HAVE CLAIMS AND DAMAGES, IF ANY, DETERMINED BY A JURY.
- Entire Agreement This Agreement is the entire agreement between Company and Customer regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
- Public Announcements. Neither Party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement, or otherwise use the other Party’s trademarks, trade dress, brand names, logos, corporate names and domain names or other similar designations of source, sponsorship, association or origin, in each case, without the prior written consent of the other Party.
- Waiver. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
- Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other Party, then such other Party may terminate this Agreement upon written notice. In the event of such a termination, Company will refund Customer any prepaid fees covering the remainder of the term for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Notices. Any notice or communication required or permitted under this Agreement shall be in writing to the Parties at:
If to Company:
Kasper AI Corp
44S Martine Ave.
Fanwood, NJ 07023
or at such other address as may be given in writing by either Party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch, (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail, or (iv) if given by e-mail, by receipt of reply e-mail acknowledging receipt or by electronic logs.
- No Third-Party Beneficiaries. This Agreement is solely for the benefit of the Parties and, except as otherwise provided herein, no other person or entity will have any right, interest, or claim under this Agreement.
- Force Majeure. In no event will either Party be liable or responsible to the other Party or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by a Force Majeure Event. A Party whose performance is affected by a Force Majeure Event shall give notice to the other Party, stating the period of time the occurrence is expected to continue, and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event. The non-affected Party may terminate this Agreement if such failure or delay continues for a period of ninety (90) days or more.
- Further Assurances. Each of the Parties hereto shall at its own expense and upon the request of another party hereto at any time and from time to time, promptly execute and deliver, or cause to be executed and delivered, all such further acknowledgements, consents, assurances and other documents, and promptly do, or cause to be done, all such further acts and things as that other party may reasonably request in order fully to effect the purposes of this Agreement.
- Governing Law; Jurisdiction. This Agreement shall be construed and interpreted in accordance with the laws of the State of Delaware without reference to conflicts of law rules or principles. To the extent permitted by law, the provisions of this Agreement shall supersede any provisions of the Uniform Commercial Code as adopted or made applicable to any products described herein in any competent jurisdiction. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Each Party submits to the exclusive jurisdiction of the district and federal courts located in Union County, New Jersey for the purpose of any suit, action or other proceeding arising out of this Agreement. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
- Counterparts. The Agreement and any documents pursuant hereto may be separately executed by the Parties in two or more counterparts, and by facsimile, PDF, or similar means of electronic delivery, and all such counterparts shall be deemed an original, but all of which together shall constitute one and the same instrument and will be binding on the Parties as if they had originally signed one copy of the Agreement.
The Services shall conform to the following products/and or services selected by Customer:
- Patient and office Paperless forms
- Full VOIP
- Online scheduling
- Basic Analytics
- Intra office chat
- Office dashboard
- Patient communications / appointment reminders
- Office tasks assignment
During the Term, the Customer shall pay to Company:
For annual subscription:
- A yearly one-time fee of $3588.00 to be payable when Kasper is scheduled to onboard the customer. (the “Fee”).
- If customer pays for 1 year in full upfront total onboarding fee will be waived.
- Customer has the right to terminate this contract any time with a 30 days’ notice.
For month-to-month services:
- An initial discounted installation fee of $500 (the “Installation Fee”) due when Kasper is scheduled to onboard the customer unless exclusion of installation fee is determined.
- Customer has the right to terminate this contract any time with a 30 days’ notice.
- a per-monthly fee (the “Monthly Fee”) of $499 per month will start when Kasper is onboarded.
The Parties agree that after the Initial Term, Company may institute an increase of the Fees during the Renewal Term of one or all of Fees, upon written notice to the Customer, provided that the aggregate dollar increase of the Fees paid by the Customer in the calendar year following such increase shall be limited to three percent (3%) per year.