Capacity – Services Agreement

EFFECTIVE DATE: August 15, 2019

BEFORE USING CAPACITY’S PLATFORM (AS DEFINED BELOW), PLEASE READ THIS CAPACITY SERVICE AGREEMENT (“AGREEMENT”). THIS AGREEMENT GOVERNS ANY SERVICE ORDER(S) ENTERED INTO BETWEEN AI SOFTWARE, LLC, D/B/A CAPACITY (“CAPACITY”) AND “SUBSCRIBER” AND ARE INCORPORATED BY REFERENCE INTO ANY SERVICE ORDER EXECUTED BY SUBSCRIBER AND CAPACITY. PURSUANT TO THIS AGREEMENT, SUBSCRIBER SHALL RECEIVE THE RIGHT TO ACCESS AND USE THE PLATFORM. THIS AGREEMENT AND THE SERVICE ORDER TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN SUBSCRIBER AND CAPACITY, EFFECTIVE AS OF THE FIRST DATE OF MUTUAL EXECUTION OF THE SERVICE ORDER. CAPACITY AND SUBSCRIBER MAY BE REFERRED TO INDIVIDUALLY AS A “PARTY” AND COLLECTIVELY AS “PARTIES”.  “USER” MEANS AN INDIVIDUAL WHO IS AUTHORISED BY SUBSCRIBER TO USE OR ACCESS THE SERVICES.

1.              Services and Responsibilities.

1.1           Provision of Services. During the Term (as such term is defined in Section 3) Capacity will provide Subscriber (including all affiliates thereof) with, and hereby grants Subscriber a right of and access to, and use of, Capacity’s Capacity artificial intelligence-based support platform (the “Platform”) and the related support, integration and other services (together with the Platform, the “Services”). Certain Subscriber Data (as defined below) is accessible through chat on the Platform.  Subject to the terms and conditions of this Agreement, Capacity will deliver the Services as described in the service order (the “Service Order”), which is incorporated herein by reference. After the execution of this Agreement, any increases in the scope of the Services (such as integration with additional Subscriber software or additional Subscriber business units) shall be subject to a separate Service Order between the Parties, in which case references Services herein shall also apply to such additional Service Orders.  Capacity reserves the right to modify and update the features and functionality or the scope of Services from time to time; provided, however, that any change which has a material and adverse effect on the usability or features and which thereby materially diminishes the value of the Services to Subscriber (a “MAE”) shall (a) not be deemed a breach by Capacity of this Agreement, but (b) permit Subscriber, upon not less than sixty (60) days prior written notice to Capacity (which shall contain a description of the MAE with reasonable specificity), to terminate this Agreement and all outstanding Service Orders, without paying any early termination fees (no matter how characterized) as a result, and to receive a prorated refund of any amounts prepaid for services under any Service Order for Services that will not be received as a result of such termination UNLESS Capacity rolls back the offending changes within thirty (30) days of receiving written notice from Subscriber thereof.

1.2           Capacity’s Responsibilities. Capacity shall: (i) not use or modify the data and information made available to, or submitted by or on behalf of Subscriber to, Capacity for the purposes of the Services (“Subscriber Data”) except as otherwise set forth in this Agreement; (ii) use commercially reasonable efforts to maintain the security and integrity of the Services and the Subscriber Data; (iii) comply with all applicable laws in providing the Services; and (iv) use commercially reasonable efforts to make the Platform available 24 hours a day, 7 days a week, except for: (a) periodic maintenance; (b) downtime caused by circumstances beyond Capacity’s reasonable control, (c) Subscriber’s use of the Services other than in accordance with this Agreement; or (d) at Subscriber’s request.  Capacity shall not be responsible or liable for the deletion, alteration, destruction, damage, loss or failure to store any Subscriber Data unless, and only to the extent that, such deletion, alteration, destruction, damage, loss or failure to store any Subscriber Data is directly or proximately caused by Capacity’s actions or breach of this Agreement, subject to any limitations set forth in this Agreement.

1.3           Subscriber’s Responsibilities. Subscriber shall: (i) have sole responsibility for the accuracy, integrity, legality, reliability and appropriateness of all Subscriber Data; (ii) prevent unauthorized access to, or use of, the Services; (iii) comply with all applicable laws in using the Services; and (iv) comply with its own contractual commitments including the End User License Agreements of any third-party software connected to the Platform by or on behalf of Subscriber.

1.4           Export Control. Subscriber and its Users shall adhere to all applicable U.S. and foreign export control laws and shall not export or re-export any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the U.S.  or  any country or organization of nations within whose jurisdiction Subscriber operates.

1.5           Data Protection.

(a) Certain Definitions.

(i) “Data Breach” means unauthorized access or disclosure of Personal Information.

(ii) “Personal Information” means any information that identifies or, in combination with other data, could reasonably be used to identify an individual.

(iii) “process” means any operation performed on Personal Information, whether or not by automated means, such as collection, recording, organization, storage, retrieval, alteration, or dissemination.

(iv) “subprocessor” means any entity which processes the Subscriber’s Personal Information on behalf of Capacity.

(b) Personal Information. Capacity shall only process Subscriber’s Personal Information in connection with this Agreement.  Subscriber will only allow Capacity access to Personal Information to the limited extent necessary for Capacity to provide the Services, and Subscriber has all rights and consents necessary to allow Capacity to process Personal Information under this Agreement.  Unless specified in a Service Order, Subscriber shall not permit Capacity to process, nor provide to Capacity, any data covered by the General Data Protection Regulation (“GDPR”), Health Insurance Portability and Accountability Act (“HIPAA”), or Gramm-Leach-Bliley Act (“GLBA”).

(c) Data Security. Capacity will use commercially reasonable efforts to maintain technical, administrative, and physical safeguards to protect against Data Breaches. Capacity’s data security policies and procedures are set forth at capacity.com/privacy-policy.

(d) Data Breaches. In the event Subscriber is affected by a Data Breach as a result of Capacity’s actions or inactions, Capacity will promptly notify the Subscriber of such Data Breach. The notification shall include, to the extent such information is available to Capacity at the time of the breach: (i) the number of records affected and what was contained in those records, (ii) the vector of the breach, (iii) any remediation efforts undertaken by Capacity, and (iv) any efforts taken by Capacity to prevent additional Data Breaches from a similar vector. Capacity will continue to provide Subscriber with additional information on such Data Breach as it becomes available. Each Party shall promptly provide a copy of any notification with respect to such Data Breach sent to any government regulator or data subject to the other Party.  In the event that Capacity becomes aware of any Data Breach not as a result of Capacity’s actions or inactions (such as, for example, a User granting unauthorized systems access to a third party), Capacity will notify the Subscriber and cooperate and provide information, on a commercially reasonable basis, to support any remediation efforts, whether such efforts are led by Subscriber or Capacity.

2.              Fees and Payment

2.1           Fees. In full consideration for the Services and the rights granted under this Agreement, Subscriber agrees to pay the fees specified in the Service Order(s).  The pricing set forth in the Service Order(s) is not binding until Service Order is executed by both Parties.

2.2           Invoicing and Payment. All fees and charges under this Agreement will be due net 30 days from the date of invoice (Net 30). All fees and charges in an invoice will be considered to be accepted by Subscriber unless Capacity is notified of a dispute in writing within 10 days of the date of the invoice.  Any amount not paid when due will be subject to finance charges equal to 1% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Capacity to collect any amount that is not paid when due.

3.              Term and Termination.

3.1           Term of Agreement. This Agreement commences on the Effective Date and continues for the period of 2 years, unless earlier terminated pursuant to the terms of this Agreement (the “Initial Term”), and will renew for successive 1 year renewal terms, unless terminated sooner pursuant to the terms of this Agreement (each a “Renewal Term”). The Initial Term and also any Renewal Term may be referred to in the Agreement as the “Term”.

3.2           Non-renewal. Either Party may give to the other Party notice of non-renewal at least 60 days prior to the expiration of the then current Initial Term or Renewal Term.

3.3           Termination for Cause. A Party may terminate this Agreement for cause: (i) if the other Party is in material breach under this Agreement and fails to cure such breach within 30 days of receipt of written notice of such material breach from the non-breaching party; or (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.

3.4           Effect of Termination.  In any event of termination of this Agreement, (a) Subscriber will remain liable for any amount due under any Service Order issued and accepted hereunder (adjusted on a pro rata basis, if applicable under the terms of any such Service Order); and (b) all obligations of Capacity under any Service Order will terminate, except that Capacity will wind up its working under any then-open Service Orders in a commercially reasonable manner and will destroy all Confidential Information of the Subscriber; provided, however, that Capacity may retain one copy if such copy is required for compliance with Capacity’s corporate governance and/or document retention policies, provided that Confidential Information remains confidential pursuant to the terms of and notwithstanding the termination of this Agreement.

4.              Proprietary Rights.

4.1           License; Ownership. Subject to the terms of this Agreement, Capacity hereby grants Subscriber a nonexclusive, royalty-free, nontransferable license, solely during the Term, for Subscriber and its Users to access and use the Services. Except for the limited rights expressly granted to Subscriber hereunder, Capacity reserves all rights, title and interest in and to the Services, including the Platform and including all related intellectual property rights inherent in the Services.  Capacity owns all rights, title and interest in and to all system performance data, metadata, machine learning algorithms, and aggregated results of such machine learning.

4.2           Restrictions. Subscriber and its Users shall not (i) modify, copy, display, republish or create derivative works based on the Services or the underlying software; (ii) reverse engineer the Services or the underlying software; (iii) access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services; (iv) license, sublicense, sell, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Services available to any third party, other than to Users and affiliates as contemplated by this Agreement; (v) use commercially reasonable efforts to maintain the security and integrity of the Services; (vi) interfere with or disrupt the integrity or performance of the Services; or (vii) attempt to gain unauthorized access to the Services or its related systems or networks. Subscriber shall be responsible for any violation of this provision by its Users.

4.3           Subscriber Data; Usage Data.  As between Capacity and Subscriber, Subscriber exclusively owns all rights, title and interest in and to all Subscriber Data.  Capacity shall have the right to access and use the Subscriber Data to provide the Services under this Agreement and to confirm compliance with the terms of this Agreement.

Capacity may generate and maintain information about the duration and frequency of the use of the Services by Users and collect and maintain User account information (collectively “Usage Data”), which Capacity may use to determine Subscriber fees; to improve, test and provide the Services; and to offer services beyond the scope of Subscriber’s then existing Service Order(s). .

4.4           Suggestions. Capacity shall own any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Subscriber or its Users relating to the features, functionality or operation of the Services (“Suggestions”) and to the extent that Capacity does not for any reason own such Suggestions, Subscriber shall irrevocably assign, transfer, and convey and hereby irrevocably assigns, transfers and conveys all such rights to Capacity and until such assignment occurs Capacity shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use the Suggestions. Capacity agrees to maintain as confidential the Subscriber as the source of such Suggestions.

5.              Confidentiality.

5.1           Definition of Confidential Information. “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed 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 or the circumstances of disclosure, including: the terms and conditions of this Agreement, the Services, the Platform, and each Party’s respective business and marketing plans, technology and technical information, product designs, and business processes. Without limiting the foregoing, Confidential Information of Subscriber includes Subscriber Data, Subscriber’s Personal Information, the proprietary APIs used by Capacity to access Subscriber Data or systems and the API keys and login credentials used by Capacity to access Subscriber Data or systems.  The obligations in this Section 5.1. shall not apply to 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 and without an obligation of confidentiality; (iii) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (iv) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality.

5.2           Confidentiality Obligations. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party, except as provided in this Agreement, except with the Disclosing Party’s prior written permission or except to its personnel and advisors who have a need to know such Confidential Information and who are subject to confidentiality obligations comparable in scope to those herein. The Receiving Party shall be liable for any breach of confidentiality obligations by its representatives to which it discloses the Disclosing Party’s Confidential Information.

5.3           Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.

6.              Warranties and Disclaimers.

6.1           Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. Capacity warrants that: (i) it owns or otherwise has sufficient rights in the Services to grant to Subscriber the license to use the Services granted herein and (ii) the Services do not infringe any third party rights. Subscriber warrants that (i) it owns or otherwise has sufficient rights in the Subscriber Data to grant to Capacity the rights granted herein to access and use the Subscriber Data, (ii) it has the applicable consents (via its employee handbook privacy, policy or otherwise) from its Users for Capacity to process Personal Information and Subscriber Data hereunder, and (iii) it has sufficient rights to any “white labelled” trademark for the Services.

6.2           Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITH RESPECT TO WARRANTIES REGARDING NON-INFRINGEMENT OF THIRD PARTY RIGHTS, EACH PARTY’S ONLY OBLIGATION WITH RESPECT TO NON-INFRINGEMENT SHALL BE THE INDEMNIFICATION OBLIGATIONS SET FORTH BELOW IN SECTION 7. WITHOUT LIMITING THE FOREGOING PROVISIONS, CAPACITY MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE, VIRUS FREE, OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL SATISFY SUBSCRIBER’S SPECIFIC REQUIREMENTS OR BE COMPATIBLE WITH SUBSCRIBER’S HARDWARE OR SOFTWARE CONFIGURATION OR THAT INACCURACIES OR ERRORS WILL BE CORRECTED.

7.              Indemnification.

7.1           Indemnification by Capacity. Subject to this Agreement, Capacity shall defend Subscriber, at Capacity’s expense, against any claims, demands, suits or proceedings made or brought against Subscriber by a third party (“Claims”) alleging that the use of the Services (or the underlying technology used therein) as contemplated hereunder directly misappropriates or infringes a U.S. patent, copyright, trademark or other intellectual property rights of a third party. Further, Capacity shall indemnify and hold Subscriber harmless against all losses, costs and expenses (including reasonable attorneys’ fees) finally awarded against Subscriber by a court of competent jurisdiction or an arbitrator, or agreed to in a written settlement agreement signed by Capacity, in connection with such Claims.

If the Services are held or likely to be held infringing, Capacity shall have the option, at its expense to (i) replace or modify the Services as appropriate without materially diminishing functionality, (ii) obtain a license for Subscriber to continue using the Services, (iii) replace the Services with a functionally equivalent service; or (iv) terminate the Services and refund any prepaid, unused fees applicable to the remaining portion of the Term following the effective date of termination. This Section 7.1 states Capacity’s entire liability and Subscriber’s exclusive remedy for any claim of intellectual property infringement.

Notwithstanding the foregoing, Capacity will have no obligation or liability relating to any Claim that: (i) is based on modifications or customizations of the Services, or to content, at the direction of Subscriber, (ii) results from Subscriber’s use of the Services in a manner that is inconsistent with its intended use or is in breach of this Agreement, (iii) is based on any Subscriber Data, or any use of or compliance with any specifications, requirements, instructions or materials provided by or on behalf of Subscriber, (iv) is based on content provided by Capacity’s Co-Pilots and approved by Subscriber, (v) is based on an incorrect classification by Subscriber, or at the direction of Subscriber, of a User’s access rights, or (vi) is based on incorrect classification of Subscriber Data by Subscriber, or at the direction of Subscriber.

7.2           Indemnification by Subscriber. Subject to this Agreement, Subscriber shall defend Capacity, at Subscriber’s expense, against any Claims made or brought against Capacity by a third party alleging that the Subscriber Data or Subscriber’s use of the Services in a manner other than as authorized under this Agreement or in violation of any End User License Agreement of third-party software connected to the Capacity Platform by or on behalf of Subscriber, infringes or otherwise violates a third party’s property, privacy or other rights . Further, Subscriber shall indemnify and hold Capacity harmless against all losses, costs and expenses (including reasonable attorneys’ fees) finally awarded against Capacity by a court of competent jurisdiction or an arbitrator, or agreed to in a written settlement agreement signed by Subscriber, in connection with such Claims.

7.3           Indemnification Procedures. Promptly upon receiving notice of a Claim, the indemnified party shall (i) give the indemnifying party prompt written notice of the Claim; (ii) give the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnifying party may not settle without the consent of indemnified party, which shall not be unreasonably withheld or delayed); and (iii) provide to the indemnifying party, at the indemnifying party’s cost, all reasonable assistance in the defense or settlement of such Claim. Promptly upon receiving notice of a Claim, the indemnified party shall (i) give the indemnifying party prompt written notice of the Claim; (ii) give the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnifying party may not settle or defend any claim unless it unconditionally releases the indemnified party of all liability); and (iii) provide to the indemnifying party, at indemnifying party’s cost, all reasonable assistance in the defense or settlement of such Claim.

8.              Limitation of Liability.

8.1           Limitation of Liability. EXCEPT FOR A PARTY’S BREACH OF SECTION 5 OR 6  OR DAMAGES FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM SUBSCRIBER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.

8.2           Exclusion of Consequential and Related Damages. EXCEPT FOR A PARTY’S BREACH OF SECTION 5 OR 6 OR DAMAGES FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.              General Provisions.

9.1           Relationship of the Parties. The Parties are independent contractors.

9.2           Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), e-mail (with a copy promptly sent by mail) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective for e-mail on the day received unless sent after business hours, then the next day, for courier on the day of receipt and on the 3rd day after mailing any Notice by certified or registered mail.

9.3           Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

9.4           Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party (which consent shall not unreasonably withheld), except that either Party may assign this Agreement in its entirety, with written notice to the other Party, but without the consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, and their respective successors and permitted assigns. No assignment or delegation shall relieve the assigning or delegating party of any of its obligations hereunder.

9.5           Governing Law. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of Missouri, without giving effect to its conflicts of laws rules.

9.6           Force Majeure. Neither Party shall be liable or responsible to the other Party, nor 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 obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control and cannot be remedied by the exercise of reasonable diligence, including, without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) failure of a third party API, and (g) Internet service provider or hosting facility failures, or delays involving hardware, software or power systems not within Capacity’s possession or reasonable control (each a “Force Majeure Event”). The Party affected shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof). The Party affected shall promptly notify the other Party and make reasonable efforts to mitigate the effects of the Force Majeure Event with reasonable dispatch and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.

9.7           Publicity. Either Party may describe its role in relation to the other Party and, if applicable, the Services provided to the other Party on its website and promotional materials.

9.8           Entire Agreement. This Agreement, including any exhibits or schedule, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement. No amendment of this Agreement shall be effective unless in writing and signed by the Parties. If there is a conflict between this Agreement and the terms contained in a mutually executed Service Order, the terms of the Service Order will control.

9.9           Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

9.10        Survival. The terms and conditions of this Agreement that by their sense and context are intended to survive after performance of the Services hereunder shall survive the termination or expiration of this Agreement.