Product Automation Terms & Conditions
These Product Automation Terms & Conditions (the “Agreement”) apply to the below-described business arrangement between DAIS TECHNOLOGY, INC., a Delaware corporation (“DAIS”) and organizations entering product automation orders (each, an “Order”) with DAIS (each such organization, “Company”), and is effective as of the date of the Order entered by DAIS and Company (the “Effective Date”). Company and DAIS are each sometimes referred to herein as a “Party,” and collectively, as the “Parties.” By entering into an order with DAIS referencing this Agreement, Company agrees to be bound by this Agreement.
WHEREAS, DAIS has and continues to develop a unique insurance distribution channel and accompanying data asset, which it is monetizing and will continue to monetize through its Internet of Insurance platform (“Platform”) and other means;
WHEREAS, Company has certain insurance products specified on the Order, the distribution and sale of which it desires to automate, and Company desires to automate such insurance products through the Platform, on the terms and conditions set forth in this Agreement; and
WHEREAS, DAIS desires to have Company automate such insurance products through the Platform, on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises, covenants and agreements of the Parties, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
Terms used in this Agreement with initial capital letters shall have the respective meanings set forth in Article 10. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.
2. BUSINESS REFERRALS
2.1 Platform Access Grant. During the term of this Agreement as specified on the applicable order, DAIS hereby grants to Company the right to access the Platform features set forth on the Order, as such Platform may be updated by DAIS or its licensors from time to time, solely for the purpose of automating, promoting, offering, selling and renewing insurance coverage for the insurance products set forth and described on the Order.
2.2 Restrictions on Use. Company shall not engage in any activity in connection with the Platform, or other users on the Platform that: (i) violates any written DAIS policies that are put into place from time to time to govern the Platform; (ii) violates any applicable laws or regulations; (iii) disrupts, damages, harms, or accesses in an unauthorized manner the hardware and networks pertaining to the Platform; (iv) might constitute spam; (v) infringes on the intellectual property rights of others; or (vi) that includes (via text, images, video, or other media) any content to which Company does not have the legal right to provide or otherwise includes pornography, obscenity, nudity, or sexual activity. Company shall not divert users or provide links to any other site or system that mimics the Platform or passes itself off as the Platform or that is similar to the Platform.
2.3 Content. Except as otherwise set forth herein, Company shall be solely responsible for (and DAIS and its licensors have no responsibility to Company, or any other user of the Platform or customer of Company) the content of any interactions, products or services Company has or provides, whether through the Platform or otherwise.
3. INTELLECTUAL PROPERTY
(a) All data and information input into the Platform shall be owned by the entity that inputs such data or information (“User Data”). Notwithstanding the foregoing, User Data shall not be deemed to be owned by any such entity if it is: (i) in the public domain through no fault of the Party seeking to use such User Data; (ii) known to the Party seeking to use such User Data prior to the time such User Data was input into the Platform; (iii) lawfully and rightfully disclosed to the Party seeking to use such User Data by a third party having the right to disclose such information; or (iv) developed by the Party seeking to use such User Data without reference to the User Data as input into the Platform.
(b) Company hereby grants to DAIS and its successors and assigns a worldwide, royalty-free, fully paid-up, perpetual, irrevocable, transferable (in connection with an assignment of all or substantially all of the business to which the Platform relates) and non-exclusive right and license, with the right to grant sublicenses and distribute to third parties, to use all User Data in which Company holds any rights for the purposes of aggregating User Data for purposes of running statistics and analytics, performing benchmarking and performing advertising within the Platform. Company hereby grants to DAIS and its licensors a worldwide, royalty-free, fully paid-up, revocable, non-transferable (except as provided under Section 9.3) and non-exclusive right and license, with the right to grant sublicenses, to use all User Data in which Company holds any rights solely for the purposes of providing and improving the Platform.
3.2 Restrictions. Except as expressly permitted herein, Company shall not, and shall not knowingly permit any other Person to: (i) copy, in whole or in part, modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Platform; (ii) reverse engineer, disassemble, decompile, decode or adapt the Platform, or otherwise attempt to derive or gain access to the source code of the Platform, in whole or in part; (iii) use the Platform in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable Law; (iv) remove or use any images, videos or other Intellectual Property Right available in connection with the Platform other than for the intended use of the Platform; or (v) use the Platform for purposes of: (y) benchmarking or competitive analysis of the Platform; or (z) developing, using or providing a competing software product or service.
3.3 IP Ownership. Each Party shall retain ownership of all right, title and interest in and to all Intellectual Property Rights owned by such Party prior to the Effective Date, subject to the licenses granted herein. DAIS and its licensors shall own and retain the entire right, title and interest in and to all Intellectual Property Rights in and to the Platform. Company shall not prevent DAIS, its licensors, or any of their successors or assigns from freely using hereby irrevocably assigns, and agrees to further assign, to DAIS the entire right, title and interest in any feedback Company provides to DAIS with respect to the Platform. Except as expressly granted hereunder, nothing herein shall be construed to transfer any right, title or ownership of any such Intellectual Property Rights to Company.
4.1 Fees. Company shall pay DAIS the fees set forth on the Order (“Fees”). In addition to any other expenses specified on the Order, DAIS shall pass through all third party technology fees incurred by DAIS in the course of providing the Platform to Company under this Agreement, including without limitation credit card processing fees, pre-fill data source fees, and the like (collectively, the “Expenses”).
4.2 Methods of Payment. DAIS shall invoice Company for the Fees and Expenses in advance monthly during the Term. Company shall pay DAIS the invoiced Fees within fifteen (15) days after Company’s receipt of the applicable invoice. Company shall make each payment due hereunder by wire transfer or electronic funds transfer using instructions from DAIS, unless otherwise specified by DAIS. Company shall be solely responsible for all tax obligations in connection with all Fees due under this Agreement.
5. TERM; TERMINATION
5.1 Term. Unless otherwise specified on the Order, the term of the Order and this Agreement shall be effective as of the Effective Date, and shall continue in full force and effect for five years, at the end of which this Agreement shall automatically renew for successive periods of one (1) year at a 2% increase to the preceding year’s licensing fees each year unless terminated in accordance with the terms of this Agreement; provided, however, that either Party may elect not to renew this Agreement by providing sixty (60) days written notice to other Party of intent not to renew. The initial term, in addition to all such renewal terms, are collectively referred to herein as the “Term”.
(a) Termination for Breach. Either Party may terminate this Agreement in the event of: (i) the other Party’s material breach of its obligations, representations, or warranties under this Agreement; or (ii) a series of breaches of this Agreement by the other Party over time that taken together constitute a material breach, if such material breach, in each case, is not cured within thirty (30) days after the non-breaching Party notifies the breaching Party in writing of such material breach.
(b) Termination for Change in Law. If any change in applicable Laws, change in the implementation or enforcement thereof, or a Party’s compliance with antitrust Laws results in an imposition of a material burden or additional material cost to comply on DAIS, or otherwise materially adversely affects DAIS’ performance of the services contemplated herein, or would result in any material legal liability to a third party or Government Authority, then either Party may terminate the affected portion of this Agreement by giving the other Party thirty (30) days written notice.
(c) Insolvency. Either Party may terminate this Agreement upon written notice to the other Party if the other Party makes a general assignment for the benefit of creditors in connection with becoming insolvent, becomes insolvent, or a receiver is appointed for, or a court approves reorganization or arrangement proceedings on, such other Party.
5.3 Effect of Termination. Expiration or termination of this Agreement shall not relieve the Parties of any obligation accruing prior thereto and shall be without prejudice to, and shall not otherwise limit, the rights and remedies of either Party with respect to this Agreement or any breach of any of the provisions of this Agreement by the other Party. Both Parties shall destroy or return any Confidential Information of the other Party received by such Party under this Agreement upon expiration or termination of this Agreement.
6. REPRESENTATIONS AND WARRANTIES
6.1 Mutual. Each Party represents, warrants and covenants to the other Party that: (i) it has the full right, power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement does not and will not violate any Law or regulation, or any agreement to which it is a party or by which it is bound; (iii) this Agreement constitutes a legal, valid and binding obligation when executed and delivered, enforceable against it in accordance with its terms; (iv) it shall perform its obligations hereunder in a professional and workmanlike manner in accordance with generally accepted industry standards; and (v) it shall comply with all Laws applicable to it in the course of performance of its obligations under this Agreement.
6.2 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS ARTICLE 6, THE PLATFORM PROVIDED BY DAIS IS PROVIDED “AS IS.” DAIS HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
7.1 Confidential Information. Each Party shall keep confidential all information and materials provided by the other Party that is marked as confidential or proprietary, or which based on the nature of the information disclosed and/or circumstances surrounding disclosure should reasonably be recognized to be confidential or proprietary even though it is not so marked, whether in tangible or intangible form, including non-public information concerning each Party’s business, products, services, data, code, documentation, trade secrets, interfaces, and technical information, including DAIS’ proprietary algorithms, data, pricing strategy, rules, methods, mix information, and all other data and information regarding DAIS’ products, including its source code (“Confidential Information”). Each Party shall keep and instruct its employees and agents to keep the other Party’s Confidential Information confidential by using at least the same care and discretion as used with that Party’s own confidential information, but in no case less than a prudent and reasonable standard of care. Neither Party shall use the other Party’s Confidential Information other than for purposes of performing its obligations hereunder or as authorized by the disclosing Party.
7.2 Exceptions to Confidentiality. Information or materials shall not constitute Confidential Information if it is: (i) in the public domain through no fault of the receiving Party; (ii) known to the receiving Party prior to the time of disclosure by the disclosing Party; (iii) lawfully and rightfully disclosed to the receiving Party by a third party having the right to disclose such information and without obligations of confidentiality; or (iv) developed by the receiving Party without reference to Confidential Information of the other Party.
7.3 Required Disclosures. Notwithstanding the confidentiality obligations of this Article 7, a Party may disclose the Confidential Information of the other Party if required or compelled by Law or legal process, rule, regulation, government requirement, court order or subpoena, provided that the receiving Party promptly provide notice to the disclosing Party of such request or requirement so the disclosing Party may seek a protective order or other appropriate remedy.
7.4 Remedy. It is understood and agreed that in the event of a breach of this Article 7, money damages will not be an adequate remedy and the non-breaching Party shall be entitled to seek injunctive relief to restrain any such breach, threatened or actual, without the need to prove irreparable harm or otherwise post a bond or other security, in addition to any other remedies that may be available to the non-breaching Party under this Agreement, at law, in equity, or otherwise.
7.5 Non-Solicit. Each of the Parties shall not solicit or make any offer of employment to any employee, contractor, or agent of the other Party while such employee, contractor or agent is engaged by the other Party and such restriction shall continue with respect to each such employee, contractor and agent until the earlier of: (i) the two (2) year anniversary after such employee, contractor or agents is no longer engaged by the other Party; and (ii) one (1) year after the conclusion of the Term.
8. LIMITATIONS OF LIABILITY
8.1 Limitation on Damages. Except as provided in Section 8.3, the total and cumulative liability of each Party (whether a claim therefor is based on warranty, contract, tort (including negligence or strict liability), statute, or otherwise) arising out of, or relating to, this Agreement shall be limited in the aggregate for all claims to the sum of the total fees payable to DAIS hereunder during the twelve (12) months immediately preceding the date of the Claim.
8.2 Exclusion of Certain Damages. EXCEPT AS PROVIDED FOR IN SECTION 8.3, OR AS OTHERWISE REQUIRED BY LAW, NEITHER PARTY NOR ITS AFFILIATES OR ITS OR THEIR RESPECTIVE EQUITY HOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUB-CONTRACTORS, OR LICENSORS, SHALL BE LIABLE TO THE OTHER PARTY, OR ITS DIRECTORS, OFFICERS, EQUITYHOLDERS, EMPLOYEES, AGENTS, MEMBERS, AFFILIATES, OR SUBCONTRACTORS, FOR CLAIMS FOR INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF USE OR REVENUE, LOSS OF SAVINGS, OR LOSSES BY REASON OF COST OF CAPITAL, CONNECTED WITH, OR ARISING OR RESULTING FROM, ANY PERFORMANCE OR LACK OF PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR THE PARTY SOUGHT TO BE HELD LIABLE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER A CLAIM IS BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER LEGAL OR EQUITABLE PRINCIPLE.
8.3 Exceptions. The limitations set forth in Section 8.1 and the exclusion of certain damages set forth in Section 8.2 shall not apply to either Party’s breach of Article 7 (Confidentiality), for which breaches, neither Party’s aggregate liability shall exceed one million dollars ($1,000,000.00).
9.1 Relationship of the Parties. The Parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the Party hereto, or an employee-employer relationship. No Party shall have any right to obligate or bind any other Party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.
9.2 Publicity. Each Party may publicly disclose the existence of its relationship with the other Party, to the extent such public disclosures are authorized by the other Party, consent not to be unreasonably withheld, conditioned or delayed.
9.3 Assignment. Neither Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other Party, except that either Party may assign its rights and obligations under this Agreement without the consent of the other Party: (i) to an Affiliate of the assigning Party; (ii) in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change of control or sale of all or substantially all of its assets related to this Agreement or similar transaction; and (iii) to its lenders as collateral security. Any assignment or attempted assignment of this Agreement in contravention of this Section 9.3 shall be null and void ab initio. This Agreement inures to the benefit of and shall be binding on the Parties’ permitted assignees, transferees and successors.
9.4 Force Majeure. Neither Party will be responsible for any failure or delay in its performance under this Agreement to the extent such failure or delay is caused by a Force Majeure Event. Upon the occurrence of a Force Majeure Event, the non-performing Party shall promptly notify the other Party of the circumstances hindering its performance and of its plans and efforts to implement a work-around, in which case the non-performing Party shall be excused from any further performance or observance of the affected obligation(s) for as long as such circumstances prevail, and such Party uses commercially reasonable efforts to recommence performance or observance to the greatest extent reasonably possible without delay. The non-performing Party will also notify the other Party promptly when the Force Majeure Event has abated.
9.5 Construction. Unless otherwise expressly stated in this Agreement, the words “herein,” “hereof,” “hereto,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, Subsection, or other subdivision. The words “include” and “including” shall not be construed or interpreted as terms of limitation. Section headings are for reference purposes only, and should not be used in the interpretation hereof. No provision of this Agreement will be construed against either Party as the drafter thereof. This Agreement shall be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either Party. Each Party has had the opportunity to consult with counsel in the negotiation of this Agreement.
9.6 Notices. All notices or other communication under or in connection with the terms of this Agreement (a “Notice”) shall be given in writing and sent by internationally recognized overnight carrier with delivery confirmation or shall be delivered by hand to the addresses set forth on the applicable order(s). All notices shall be presumed to have been received when they are hand delivered, or on the business day following the day of delivery by overnight carrier.
9.7 Amendments; Waiver. No provision of this Agreement may be supplemented, amended or waived (including by course of performance or of dealing, or usage of trade) unless such amendment or waiver is in writing and signed, in the case of an amendment, by the Parties, or in the case of a waiver, by the Party against whom the waiver is to be effective. No failure or delay by a Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. No regular practice or method of dealing between the Party shall modify, interpret, supplement or alter in any manner the express terms of this Agreement.
9.8 Severability; Counterparts. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. This Agreement may be signed in counterparts. Each of them is an original, and all of them constitute one agreement.
9.9 Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without reference to conflicts of laws principles. The Parties agree that the federal and state courts in the county of New Castle County, Delaware will have exclusive jurisdiction and venue under this Agreement, and each Party hereby agrees to submit to such jurisdiction exclusively.
9.10 Entire Agreement. This Agreement constitutes the complete, final and exclusive agreement between the Parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Neither Party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.
10. DEFINED TERMS
10.1 Affiliate. The term “Affiliate” shall mean, with respect to an entity, any entity that Controls, is Controlled by, or is under common Control with, that entity whether before or after the Effective Date of the Agreement. For the avoidance of doubt, for purposes of this Agreement, DAIS and its Affiliates shall not be deemed to be Affiliates of Company.
10.2 Claim. The term “Claim” shall mean any actual or threatened claim or proceeding.
10.3 Control. The term “Control” (including with correlative meanings, the terms “Controlling,” “Controlled by” and “under common Control with”) shall mean the possession directly or indirectly of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by trust, management agreement, contract or otherwise.
10.4 Force Majeure Event. The term “Force Majeure Event” shall mean an event that is outside of the reasonable control of a Party, including without limitation the following: acts of war, terrorism, civil riots or rebellions, the regulatory acts of Governmental Authorities, labor strikes, non-performance of subcontractors or third party suppliers, quarantines, embargoes and other similar unusual governmental action; extraordinary elements of nature or acts of God.
10.5 Governmental Authority. The term “Governmental Authority” shall mean any federal, state, provincial, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign, or international.
10.6 Intellectual Property Rights. The term “Intellectual Property Rights” means all intellectual property rights in any jurisdiction, including: (i) copyrights and copyrightable subject matter; (ii) trademarks, service marks, brand names, trade dress, logos, slogans and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing; (iii) Internet domain names and numbers; (iv) patents, invention disclosures and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions and extensions thereof; (v) rights in computers programs and applications (whether in source code, object code or other form), databases, compilations and documentation related to any of the foregoing; (vi) trade secrets, confidential information and proprietary know-how (including processes, procedures, research and development, concepts, algorithms and specifications); (vii) registrations and applications relating to any of the foregoing; and (viii) any other intellectual or proprietary rights anywhere in the world.
10.7 Person. The term “Person” shall mean any individual, corporation, partnership, limited liability company, firm, joint venture, association, joint-stock company, trust, unincorporated organization, governmental entity or other entity.