Services Agreement

1. Services

Statements of Work. From time to time during the Term, Buoy and Company may agree that Buoy will perform certain work for Company by mutually executing a statement of work, which may be in the form attached hereto as Exhibit A or in such other form as the Parties may mutually approve that references this Agreement (each, a “Statement of Work” or “SOW”).  Each SOW shall describe the scope of services to be performed by Buoy, the fees and fee schedule for those services and such other terms and conditions as may be mutually agreeable for the particular project assignment contemplated thereby.  As used herein, the term “Services” means the work, services, functions and responsibilities set forth in an SOW and such other work, services, functions and responsibilities that are not specifically described in an SOW, but which are inherent in or incidental to such services or are otherwise required for the proper performance of such services.  Each SOW shall incorporate, and be subject to, the terms and conditions of this Agreement.  In the event of any conflict or inconsistency between any provision of this Agreement and any provision of an SOW, the provisions of this Agreement shall prevail except to the extent the SOW sets forth a clear and express intent to supersede the conflicting provision(s) of this Agreement. Neither Party’s execution of this Agreement shall create an obligation to enter into any SOW. 

Performance of Services. Upon execution of an SOW, Buoy agrees to perform the Services in accordance with such SOW and the service levels, specifications and other requirements set forth therein, as well as the non-conflicting instructions of Company.  Buoy shall not perform any other work or services unless the Parties enter into a separate SOW or a written amendment, addendum or change order to the SOW authorizing the performance of such additional work or services, and Company shall not be responsible for paying any fees or expenses associated with such additional work or services until the execution thereof.

Modification of Services. If Company desires a change in the scope of work, deliverables, timelines, requirements or other project details under an SOW, Company will issue a written request to Buoy describing such proposed changes, which Buoy shall consider in good faith.  If Buoy accepts such proposed changes, the Parties shall promptly negotiate and execute an amendment or addendum to the applicable SOW to adjust the scope of work, fees and fee schedule, project deadlines and other terms of the SOW to reflect the approved changes.  If Buoy rejects such proposed changes, Buoy shall respond to Company in writing, specifying the nature of the objection and the terms and conditions on which it would agree to change the SOW. 

Deliverables.  The Services do not contemplate the Buoy will deliver any work product, media, content, websites, software, code, results, reports, information, data, documents and other materials (the “Deliverables”).  Buoy will only contract to provide Deliverables under a separate written agreement signed by both Buoy and Company.   

Buoy Personnel. All employees, contractors, consultants and other personnel used by Buoy to perform the Services (the “Buoy Personnel”) shall be deemed employees, contractors, consultants, or agents of Buoy, and in no event shall any Buoy Personnel be considered employees or agents of Company.  Neither Buoy nor any Buoy Personnel are eligible to participate in, and shall not receive any benefits under, any insurance or benefits plans offered by Company, and Company shall not provide any insurance (including, but not limited to, medical, dental, disability, liability, property, worker’s compensation or unemployment insurance) or benefits (including, but not limited to, overtime payments, pensions, vacation time, or profit-sharing) for any Buoy Personnel.  Company shall not be responsible for paying any taxes or contributions to state or federal funds on behalf of any Buoy Personnel (including, but not limited to, employment taxes, estimated taxes, “FICA” contributions, or contributions to disability or liability funds), and Buoy warrants that Buoy will fulfill all applicable obligations regarding such taxes and funds and the withholding thereof.  In the event that any claim is made against Company that relates to any Buoy Personnel and the issue of such person(s) being an employee of Company, Buoy shall indemnify and keep Company indemnified in relation to any losses, damages, costs and expenses (including legal expenses) arising therefrom. 

2. Fees and Payment Terms.

Compensation for Services. In consideration of the Services performed by Buoy, Company shall pay to Buoy the fees specified in the SOW (the “Fees”).  Any purchase order, invoice, acknowledgment, or similar document issued by either Party in connection with the processing and payment of Fees shall be solely for the convenience of the Parties and shall not add to or modify the terms and conditions of this Agreement or any SOW.

Out-of-Pocket Expenses. Company will reimburse Buoy for all reasonable out-of-pocket costs and expenses incurred by Buoy or the Buoy Personnel in connection with providing the Services (the “Expenses”), provided that such Expenses are approved in advance or ratified by Company in writing and are supported by reasonable documentation.

Payment Terms.  Buoy will invoice Company for Fees and Expenses in accordance with the fee schedule set forth in the applicable SOW (or, if no such schedule is provided, monthly in arrears).  Company shall pay all undisputed portions of invoiced amounts within thirty (30) days from Company’s receipt of Buoy’s invoice.

Payment Disputes. If Company in good faith believes that some portion of the amount invoiced is in error, Company will pay all undisputed amounts when due and will notify Buoy in writing of the dispute within thirty (30) days of receipt of the invoice, specifying in reasonable detail the nature of the dispute and identifying the portion of the invoice disputed. The Parties shall promptly work together in good faith to resolve such dispute, and Buoy shall provide Company all information, materials and documentation justifying the invoiced Fees and Expenses reasonably requested by Company. The amount determined to be due to Buoy following such resolution, if any, shall be due and payable within thirty (30) days from the date of resolution. Buoy may not terminate or suspend the performance of any Services due to Company’s good-faith dispute of invoices, unless resolution is not reached on such dispute within sixty (60) days.

Taxes.  Company shall be responsible for all sales, use, VAT and excise taxes, and any other similar taxes, duties and charges of any kind, imposed by any federal, state or local governmental entity on any Fees or Expenses remitted to Buoy hereunder.   The Fees are exclusive of any such taxes. Notwithstanding the foregoing, however, in no event shall a Party pay or be responsible for any taxes imposed on, or regarding, the other Party’s income, revenues, gross receipts, personnel, or real or personal property or other assets.

3. Intellectual Property.

Definitions. As used throughout this Agreement, the term “Intellectual Property Rights” means all patents, utility models, copyrights, trademarks, service marks, know-how, trade secrets, business names, domain names, rights in get-up and trade dress, goodwill, proprietary information, any and all rights and interests in designs, tools, models, methodologies, programs, systems, frameworks, practices, specifications, data, data models, databases, inventions, processes, software, technology, solutions, operating procedures and techniques, and all other intellectual property and intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.  As used throughout this Agreement, the term “Background Property” means all Confidential Information of a Party and all Intellectual Property Rights of a Party that existed prior to the Effective Date or which are developed by or for a Party independently of this Agreement without reference to the Confidential Information of the other Party.

Retention of Background Property. Notwithstanding anything to the contrary in this Agreement or any SOW, but subject to Section 3(c) below, as between the Parties hereto, each Party shall be and remain the sole and exclusive owner of all right, title and interest in, to and under all of such Party’s Background Property. 

License to Company Property.  Company hereby grants Buoy a limited, revocable, non-exclusive, royalty-free, non-transferrable, and non-sub-licensable license during the Term to use, perform, display, execute, reproduce, distribute, transmit, modify and make the Intellectual Property Rights, information, documents, samples, products, materials, media and content provided to Buoy by Company for use in connection with the performance of the Services (the “Company-Provided Materials”) solely to the extent necessary to perform the Services expressly described in an SOW.  Company grants no other right or license to any Company Background Property or any other Company Intellectual Property Rights, by implication, estoppel or otherwise.  The license set forth in this Section 3(c) shall automatically terminate and be deemed void upon the earlier of (i) termination of this Agreement or (ii) Company’s written notice of revocation.

4 Term and Termination.

(a) Term: This term of this Agreement shall be from the Effective Date until the termination of this Agreement in accordance with Section 4(b) below (the “Term”).

(b) Termination

Either party may terminate this Agreement and/or any or all SOWs for any or no reason upon sixty (60) days’ prior written notice to the other party. 

Either Party may terminate this Agreement and/or any or all SOWs immediately upon written notice to the other Party if the other Party breaches this Agreement or any SOW and such breach (A) remains uncured thirty (30) days following the non-breaching Party’s delivery of written notice to the breaching Party specifying the nature of the breach and requesting cure thereof or (B) is incapable of cure. 

Either Party may terminate this Agreement and/or any or all SOWs issued hereunder immediately upon written notice to the other Party if: (A) the other Party has violated any applicable laws, rules, regulations, orders or other governmental requirements (“Applicable Laws”) in connection with this Agreement or committed any fraud in connection with this Agreement; or (B) the other Party becomes insolvent, is unable to pay its creditors in the ordinary course, becomes subject to any proceeding against it in bankruptcy, reorganization or insolvency, becomes subject to the appointment of a receiver for a period of sixty (60) days or longer, or makes a general assignment of its assets for the benefit of creditors. 

Effect of Termination. The termination of an SOW does not result in the termination of any other SOW or this Agreement.  The termination of this Agreement terminates all SOWs hereunder unless the terminating Party specifically provides otherwise in its written notice of termination.  If any SOW remains outstanding at the time this Agreement is terminated, the terms and conditions of this Agreement shall continue to apply in full force and effect until the termination or expiration of the SOW in accordance with its terms.

Payment After Termination.  Upon termination of this Agreement and/or any SOW, Company shall pay Buoy the Fees, or a prorated part thereof, for the Services satisfactorily performed and any Expenses reimbursable under Section 2(b) of this Agreement that were incurred prior to the effective date of termination.  Unless otherwise agreed by Company and Buoy, Buoy shall cease the performance of all Services and, to the best of its ability, cancel all incurred Expenses upon the delivery of a notice of termination by either Party in accordance with this Section 4.

Return of Materials. Promptly upon termination or expiration of this Agreement, each Party shall return all Background Property and other equipment or materials of the other Party in its possession to the other Party.  Upon termination or expiration of an SOW, Buoy will promptly deliver to Company all Company-Provided Materials.

Survival. Sections 2, 3, 4(c), 4(d), 4(e), 4(f), 6, 7 and 8, and any other provision of this Agreement that, in order to accord such provision its intended purpose and effect, should survive termination or expiration of this Agreement, shall survive any termination or expiration of this Agreement.

5. Representations and Warranties

Mutual. Each Party represents, warrants and covenants to the other Party that: (i) it will comply with all Applicable Laws in connection with this Agreement; (ii) it has and will maintain for the duration of the Term all rights, title, authority, consents and approvals necessary to enter into and perform this Agreement, to grant the rights granted by it herein, and to consummate the transactions contemplated hereby; and (iii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not require notice to, the consent of, or other action by any person or conflict with, result in a violation or breach of, or constitute a default under any instrument to which such Party is a party or by which such Party or its assets may be bound.

By Buoy. Buoy represents, warrants and covenants to Company that: (i) it will perform the Services in a timely, workmanlike and professional manner and in accordance with the prevailing standards in Buoy’s industry; (ii) it and the Buoy Personnel have the expertise, knowledge and experience to perform the Services; (iii) all Buoy Personnel will be competent professionals and specifically trained to perform the Services; (iv) any Buoy Confidential Information or Buoy Background Property provided to Company in connection with this Agreement will not infringe, misappropriate or otherwise violate the Intellectual Property Rights or privacy rights of any third parties; and (v) it will maintain compliance with and adhere to all applicable industry-standard methods and technologies designed to maintain the security and integrity of the Confidential Information of Company.

6. Confidentiality; Privacy Requirements.

Confidential Information. Each Party (the “Receiving Party”) acknowledges that it may receive or may have received information regarding the other Party’s (the “Disclosing Party”) business, including but not limited to, any and all Background Property of the other Party and any and all information of the other Party regarding its business activities, trade secrets, equipment, service offerings, service capabilities, business and operational plans, facilities, business records, methods, research, developments, processes, financial statements, personal information, pricing, systems, procedures, algorithms and business data  (collectively, “Confidential Information”).  The term “Confidential Information” shall also include this Agreement and any information which by its nature or the circumstances surrounding its disclosure would reasonably be considered confidential by any reasonable person operating in the Receiving Party’s industry.  “Confidential Information” does not include, however, any information which (i) was already known to the Receiving Party prior to the time it was first received, as shown by the Receiving Party’s written records; (ii) is or becomes information generally known to the public through no negligent or wrongful act of the Receiving Party; (iii) is rightfully received by the Receiving Party from a third party whose rightful possession thereto is without restriction and without breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party without use of any Confidential Information; provided, however, that the foregoing exceptions to the definition of “Confidential Information” shall not supersede any legal obligations of either Party with respect to any Confidential Information.

Confidentiality Obligations. The Receiving Party shall exercise the same degree of care to prevent unauthorized use or disclosure of the Disclosing Party’s Confidential Information to others as it takes to preserve and safeguard its own Confidential Information, but in any event, no less than a reasonable degree of care.  The Receiving Party shall use the Confidential Information of the Disclosing Party only for the purpose of enabling each of the Parties to perform this Agreement and exercise their rights hereunder.  The Receiving Party shall not directly or indirectly disclose such Confidential Information to any person other than its representatives who have a need to know such Confidential Information in connection with this Agreement.

Compelled Disclosure. If the Receiving Party is presented with a request for documents by an administrative agency or with a legally valid and binding subpoena for any records, data or documents which are the Confidential Information of the Disclosing Party, the Receiving Party shall promptly give written notice to the Disclosing Party, to the extent permitted by Applicable Laws, so that the Disclosing Party can seek a protective order or other remedy.  The Receiving Party shall disclose only the Confidential Information it is legally required to disclose and shall undertake reasonable efforts to ensure that the Confidential Information disclosed is given confidential treatment by the recipient(s) thereof.

No Rights in Confidential Information.  Any and all Confidential Information shall remain the sole and exclusive property of the Disclosing Party. Within ten (10) days following the receipt of written notice by the Disclosing Party, the Receiving Party shall either promptly return to the Disclosing Party or destroy (and certify to the Disclosing Party that it has destroyed) any and all documents, computer files and other materials that contain, reflect or were based upon any Confidential Information of the Disclosing Party in its custody or control.  To the extent any portion of the Confidential Information is retained on the Receiving Party’s information systems following the Receiving Party’s good-faith effort to delete the Confidential Information, the Receiving Party agrees to protect the Confidential Information in the same manner and to the same extent that it uses to protect its own confidential and proprietary information for as long as the Confidential Information is retained on the Receiving Party’s information systems.

Compliance with Laws.  Buoy and Company shall comply with all Applicable Laws, including privacy and data security laws and those laws respecting Confidential Information, at all times in performance, delivery, and acceptance of the Services.

7. Indemnification.

Indemnification by Buoy. Buoy agrees to indemnify, defend and hold harmless Company and its affiliates and its and their stockholders, members, directors, managers, officers, employees, agents and representatives (collectively, the “Company Indemnitees”) from and against any and all losses, liabilities, damages, costs, fines and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of any third-party or governmental claims, actions, causes of action, suits, demands, investigations or other proceedings (collectively, “Third-Party Claims”) arising out of or relating to (i) Buoy’s breach of this agreement, (ii) the negligence, willful misconduct or violation of Applicable Laws by Buoy or any Buoy Personnel, and (iii) any damage to real or personal property or any personal injury or death caused by any Buoy Personnel; provided, however, that Buoy shall have no obligations under this Section 7(a) to the extent the Third-Party Claim arises out of (A) the actual or alleged infringement, misappropriation or other violation of such third party’s Intellectual Property Rights or (B) the violation of such third party’s privacy rights, in either case to the extent resulting from Buoy’s use of any Company-Provided Materials.

Indemnification by Company. Company agrees to indemnify, defend and hold harmless Buoy and its affiliates and its and their stockholders, members, directors, managers, officers, employees, agents and representatives (collectively, the “Buoy Indemnitees”) from and against any and all Losses arising out of any Third-Party Claims arising out of or relating to (i) the actual or alleged infringement, misappropriation or other violation of such third party’s Intellectual Property Rights or (ii) the violation of such third party’s privacy rights, in either case to the extent resulting from Buoy’s use of any Company-Provided Materials.

Procedure. Any Company Indemnitee or Buoy Indemnitee seeking indemnification under this Section 7 (as applicable, the “Indemnified Party”) shall promptly notify Buoy or Company, respectively (as applicable, “Indemnifying Party”) in writing of any Third-Party Claim for which the Indemnified Party believes it is entitled to indemnification hereunder.  The Indemnified Party’s failure to provide such notice to the Indemnifying Party does not relieve the Indemnifying Party of its obligations under this Section 7 except to the extent the failure to provide such notice has materially prejudiced the defense of the Third-Party Claim.  The Indemnifying Party shall have the right to assume control of the defense and settlement of the Third-Party Claim, using the counsel of its choice, at its cost; provided, however, that the Indemnifying Party shall not enter into any settlement of a Third-Party Claim without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed.

8. Miscellaneous8. Miscellaneous

Notices. All notices, consents, and other communications permitted or required to be given under this Agreement or any SOW must be in writing and addressed to the recipient and will be deemed given: (i) upon delivery if personally delivered with fees prepaid, including by a recognized courier service; (ii) upon receipt if delivered by certified or registered mail, postage prepaid and return receipt requested, as indicated by the date on the signed receipt; (iii) upon receipt if sent by a nationally recognized overnight courier; or (iv) upon delivery by email with confirmed delivery receipt, addressed as follows:

To Buoy:

Buoy IT LLC
5309 Commonwealth Centre Parkway
Midlothian, VA 23112
Attn:__Support
E-mail: support@buoyhub.com

To

Company: ___________________ ___________________ ___________________
Attn:_______________
E-mail:______________

Severability. If any term or provision of this Agreement or any SOW is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or any SOW or invalidate or render unenforceable such term or provision in any other jurisdiction. In such event, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible.

Amendments. No amendment to or modification of this Agreement or any SOW is effective unless it is in writing and signed by an authorized representative of each Party.

Waivers. No waiver by any Party of any of the provisions of this Agreement or any SOW 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 or any SOW 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.

Assignment. Neither Party shall assign this Agreement or any SOW without the prior written consent of the other Party, provided that a Party may assign this Agreement to any person acquiring all or substantially all of such Party’s assets without the other Party’s consent so long as at least thirty (30) days’ advance notice thereof is provided. Company may not subcontract or delegate any performance of this Agreement to any third party without the prior written consent of Company, which will not be unreasonably withheld, conditioned or delayed. Any approved subcontractor shall be considered “Company Personnel” for purposes of this Agreement, and Company shall be responsible for all acts and omissions of subcontractors as if they were the acts and omissions of Company. This Agreement and each SOW is binding on and inures to the benefit of the Parties to this Agreement and the applicable SOWs and their respective successors and assigns.

Independent Contractors. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement or any SOW shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. Each Party acknowledges that neither it nor any of its employees are employees of the other Party and that neither it nor any of its employees are eligible to participate in any employee benefit plans of the other Party.

Entire Agreement; No Third-Party Beneficiaries. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and such agreements supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.  This Agreement benefits solely the Parties to this Agreement and their respective successors and assigns, and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, except for those rights afforded the Company Indemnitees under Section 7 hereof.

Governing Law. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the Commonwealth of Virginia, without giving effect to the conflict of laws provisions of any jurisdiction that would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Virginia.  Any action, suit or proceeding arising out of this Agreement or related to the engagement established hereby shall be brought and take place exclusively in the appropriate federal or state courts residing in Richmond, Virginia, and the parties hereby submit to the exclusive personal jurisdiction of such courts.