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This Agreement (the "Master Services Agreement", “MSA” or “Agreement”) shall govern the provision of services by Thoughtful NY, LLC, a Limited Liability Company organized in the state of New York, USA (“Thoughtful”) to Client. Additional terms, such as the services to be provided hereunder, the schedule for the delivery thereof and the amount of fees payable therefore are set forth on the attached Statement of Work (the “SOW”) which may, from time to time, be amended upon the written consent of both parties. In the event of any conflict between the terms of any SOW and the terms of this Agreement, the terms of the SOW shall control. ‍

Any services outside the SOW or changes to previously approved services requested by the Client shall be the subject of an additional SOW or Change of Scope to be approved in writing by both parties.

The Client shall pay Thoughtful for their services performed as set forth on the applicable SOW. All rights of the Client herein are conditioned on Thoughtful’s receipt of full payment. In addition, Thoughtful may suspend performance of services and withhold delivery of materials until outstanding invoices are paid in full. Thoughtful shall not be liable for any damages, losses, or liabilities that may arise out of Thoughtful’s suspension of performance and/or withholding of materials due to Client’s non-payment. Time spent correcting defects (sometimes referred to as “bugs”) is billable. Thoughtful may require an up-front deposit, specified in the SOW, prior to beginning work. Payments that are more than 15 days late shall accrue interest at the rate of 10% of the total late balance per month unless otherwise specified in the SOW. Thoughtful shall be entitled to all of its costs of collection of amounts outstanding hereunder, including without limitation, the fees of its attorneys. Payments must be made via ACH or Wire Transfer unless Thoughtful agrees in writing to accept another form of payment. If Thoughtful agrees to accept another form of payment, any fees incurred such as credit card or check fees will be the responsibility of Client.

Client agrees to provide Thoughtful with access to create third-party vendor accounts (for example, Amazon Web Services, Google, etc) needed to fulfill its duties under this MSA on its behalf. Thoughtful is not responsible for delays caused by not having access to accounts needed to perform its duties under this Agreement. Client expressly grants Thoughtful permission to create new accounts for third-party vendors and enter into legally binding contracts with those vendors on Client’s behalf. Client agrees that third-party vendor expenses (such as web hosting, code hosting, etc) are necessary for Thoughtful to fulfill its obligations under this contract, and as such, agrees to provide Thoughtful with access to a credit card so that Thoughtful may set up such third party services on Client’s behalf. Thoughtful agrees to make reasonable efforts to inform Client of all expenses that are or will be incurred from such accounts. Thoughtful agrees to provide Client with access to third party vendor accounts upon request. Additionally, Client agrees to hold Thoughtful harmless and indemnify Thoughtful with regards to setting up and maintaining such third party accounts.

Client and Thoughtful may mutually choose to enter into a separate Equity and/or Revenue Sharing Agreement (“Equity Agreement”). Such an Equity Agreement may be used as partial or full consideration of the services rendered.

In order to avoid miscommunication, the Client shall appoint a sole representative with full authority to provide or maintain any necessary information and approvals that may be required by Thoughtful (the “Client Representative”). The Client Representative shall be responsible for coordination and review of Thoughtful’s services and notifying Thoughtful of Client instructions, change orders, and approvals. The signature or e-mail approval of the Client Representative shall be final and binding on Client. If after the Client Representative has approved a SOW, the Client or any authorized person alters the SOW, requires additional services, or reverses an approval, the Client shall pay all fees and expenses arising from such changes and additional services as set forth in section 1 above.

6. Indemnification, Liability, and Warranty Disclaimer

Thoughtful’s ability to conduct business generally and its obligations pursuant to this Agreement may be dependent on the Client fulfilling its obligations. Thoughtful shall not be liable for any costs, charges, or losses sustained by the Client arising directly from any failure of the Client to fulfill its obligations under this Agreement.

The Client is responsible for obtaining all legal and regulatory clearances required for the performance of services hereunder. The Client agrees that it is solely responsible for complying with any laws, taxes, and tariffs applicable in any way to the Project or any other services contemplated herein, and will hold harmless, protect, and defend Thoughtful and its affiliates from any claim, suit, penalty, tax, fine, or tariff arising indirectly or directly from the Client's performance of its obligations pursuant to this Agreement, including its exercise of internet electronic commerce and/or any failure to comply with any such laws, taxes, and tariffs.

The Client shall indemnify, defend (at its own cost and expense) and hold Thoughtful and its officers, employees and agents harmless from and against any and all claims, suits, demands, damages, losses and expenses arising from any breach, misrepresentation or other act or omission of Thoughtful, unless due to gross negligence or willful misconduct of Thoughtful.

Thoughtful shall not be held responsible for delays or non-performance caused by activities or factors beyond its reasonable control, including delays and non performance caused by viruses, denial of service attacks, other acts or omissions by third parties strikes, lockouts, work slowdowns or stoppages, accidents, fires, acts of God, terrorism, failure by the Client to timely furnish information or approve or disapprove work, or faulty performance by the Client or others, including third-party contractors hired by Thoughtful or by Client. Excluding gross negligence, Thoughtful shall not be liable for any indirect, third-party, incidental, special, consequential, exemplary or punitive damages arising out of this Agreement, whether currently or yet to be discovered or known. Both Parties understand and agree that potential damages suffered by either Party are difficult to predict with reasonable certainty, thus Thoughtful’s maximum liability under this Agreement shall never exceed the total fees received by it hereunder, and that such maximum shall not be considered a penalty of any kind.

Thoughtful hereby disclaims any and all warranty on work performed pursuant to this Agreement, including, without limitation, warranties that the work is free of defects, merchantable, fit for a particular purpose or non-infringing. Should the work prove defective in any respect, Thoughtful shall not be liable for the cost of servicing, repair or correction. 

This disclaimer of warranty is an essential part of this Agreement.

7. Confidential Information, Non-Disparagement

The Parties acknowledge that the terms of this Agreement and any oral or written information exchanged between the Parties in connection with and the performance of this Agreement are regarded as confidential information. The Parties understand and agree that confidential information is that which relates to the Client’s or Thoughtful’s research, development, trade secrets or business affairs and includes, in the case of Thoughtful’s confidential information, concepts presented to, but not selected by, the Client.

Both Parties shall strictly maintain each other’s confidential information and shall use it solely to perform their respective obligations hereunder. For the avoidance of doubt, confidential information does not include information which is public knowledge, was in the recipient’s possession before receipt or is independently developed by the recipient. Disclosure by either Party or its affiliates of any confidential information to a third party shall be deemed disclosure of such confidential information by such Party, which Party shall be held liable for breach of this Agreement. This Section shall survive the termination of this Agreement for any reason. The Parties agree that they will not at any time make, publish, or communicate to any person or entity or in any public forum, with regard to the other Party, any defamatory or disparaging remarks, comments or statements now or in the future. 

Subject to Thoughtful’s receiving full payment under this Agreement, Thoughtful assigns to the Client, without representation or warranty, all rights, title and interest Thoughtful may have in any work specifically created by Thoughtful for the Client pursuant to this Agreement, except that: 1. Thoughtful may use and distribute such work as part of its portfolio for promotional purposes; 2. Thoughtful may incorporate open source and third-party materials such as code, tools, designs, software, graphics, fonts, or media (“Background Materials”) whether developed by Thoughtful or by a third party into its work for Client so long as such materials are licensed for perpetual, royalty free, commercial use (for example, MIT Licensed). If Background Materials are owned by Thoughtful, Thoughtful will retain all rights, title, and interest in them. For the avoidance of doubt, Client has full ownership and exclusive rights over raw source code that is developed by Thoughtful on behalf of Client and that is not open-source or owned by a third-party. Thoughtful will provide Client with all of the raw source code developed by Thoughtful for Client upon written request or within 30 days after the termination of this Agreement.

Talent shall be defined as agents, employees, independent contractors, advisors, consultants, principals, or affiliates of the Parties.

In order to protect both Parties’ commercial investments in sourcing Talent, and specifically expenses incurred during the process of recruiting, hiring, and engaging Talent, neither party shall solicit the other’s Talent or engage them in any work independent of the Parties’ relationship under this Agreement during the term of the Agreement and for 18 months thereafter.

Subject to Client’s prior written notice to Thoughtful and Thoughtful’s approval, the right to a reasonable wind-down period (described below), and full payment of the Platform Buyout Fee (defined below), Client may, during or after the term of this Agreement, opt to directly engage or employ any of Thoughtful’s Talent. Such wind-down period is typically thirty (30) days, but may be reasonably adjusted by Thoughtful based on the situation, then-existing commitments to Thoughtful related to Thoughtful’s business, including but not limited to commitments to other Thoughtful’s clients.

With respect to Talent that was hired by Client (defined below), Client will, within three (3) days of hiring or engaging such Talent, pay Thoughtful the “Talent Buyout Fee” of thirty thousand US dollars ($30,000) or a mutually agreed upon value representing a reasonable estimate of Thoughtful’s expenses incurred to source, recruit, screen, train and replace Talent, and otherwise operate its business with respect to such replacement Talent. The Talent Buyout Fee is mutually agreed not to be a penalty or constraint upon the commercial activities or prospective employment of Client or Talent, only reasonable compensation for Thoughtful’s lost commercial investment in its service in originally sourcing Talent.

10. This Agreement, Amendments, and Parties in Interest

This Agreement constitutes the sole and entire agreement and understanding of the Client and Thoughtful, and supersedes any and all previous assumptions, agreements and understandings, whether oral or written, between the parties with respect to the matters set forth in this Agreement. No provision of this Agreement may be amended, modified or waived, except in writing (which includes email) by both parties. The severance, invalidity, or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision, and if any restriction in this Agreement is found by a court or related tribunal to be unreasonable or unenforceable, then such court may amend or modify the restriction so it can be enforced to the fullest extent permitted by law. The section headings in this Agreement have been inserted as a matter of convenience of reference and are not a part of this Agreement. This Agreement may be executed by electronic signature via email in any number of counterparts, each of which together shall constitute one and the same instrument.

 Correspondence via email between the parties constitutes “in writing” for the purposes of this contract. This Agreement will commence on the date of signing and will remain effective until terminated as per the terms of this Agreement.

 This Agreement is made solely for the benefit of the Client and Thoughtful, and their respective affiliates. No other person shall acquire or have any right under or by virtue of this Agreement. Neither Party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, including by operation of law, change of control, or merger, without the prior written consent of the other Party. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void.

 The undersigned hereby agree to the terms, conditions, and stipulations of this agreement on behalf of his or her organization or business.

Either party may terminate this Agreement for any reason at any time. At Thoughtful’s election, Client’s delay of services under this Agreement for a cumulative period of more than 30 days without Thoughtful’s fault or consent shall be considered a termination of this Agreement by Client within the meaning of the immediately preceding sentence.

12. Governing Law, Jurisdiction, Jury Trial Waiver

This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted in the federal, state or local courts located exclusively in the city of New York and County of New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by email to such Party’s email address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. If any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other Party arising out of or related to this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party. Additionally, each party hereby irrevocably waives its rights to trial by jury in any Action or proceeding arising out of this agreement or the transactions relating to its subject matter.

This Agreement may be amended, modified, or supplemented only by an agreement in writing signed by each Party. 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. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, 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.

Any and all notices required or permitted hereunder shall be sent by email as defined in the SOW.

Professional Services Agreement (PSA) for Tech Advising