1.    Applicability. These terms and conditions (these “Terms”) are the only terms which govern the provision of the professional services (“Services”) by Digital Intellective, LLC, an Indiana limited liability company (“Digital Intellective”) to the customer named on the attached statement of work (“Client”, and together with Digital Intellective the “Parties” and each individually a “Party”). Each attached statement of work (collectively, the “Statement of Work”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. The Statement of Work is limited to and conditional upon Client’s acceptance of these Terms exclusively. Any additional or different terms proposed by Client, whether in the Statement of Work or otherwise, are unacceptable to Digital Intellective, are expressly rejected by Digital Intellective, and will not become a part of this Agreement.

2.    Performance of Services.

(a)          Digital Intellective shall provide to Client the Services in accordance with (i) the terms and conditions set forth in this Agreement and (ii) the Specifications (as defined below). Additional Services may be added only by executing a new Statement of Work. As used in this Agreement, “Specifications” mean the specifications and instructions provided by Client to Digital Intellective for certain requirements for the development and provision of the Deliverables (as defined in Section 5(a)).

(b)          Digital Intellective shall not subcontract any of the Services without Client’s prior written approval. In the event Digital Intellective cannot perform certain aspects of the Services and Digital Intellective does not, or cannot, subcontract such Services (the “Excluded Services”), Digital Intellective may refer Client to another service provider for the performance and fulfillment of such Excluded Services (the “Referral”), whereby Client shall enter into an agreement with the Referral for the Excluded Services. For the avoidance of doubt, Digital Intellective shall not be responsible for the performance of the Excluded Services, whether or not Client engages the Referral to perform the Excluded Services. Digital Intellective does not warrant that the Referral will perform the Excluded Services in accordance with the limited warranty set forth in Section 12(a) and that Client shall rely on the Referral’s warranty, if any, for the performance of the Excluded Services.

3.    Client Obligations; Pause.

(a)          Client shall: (i) designate one of its employees or agents to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Client Contract Manager”), with such designation to remain in force unless and until a successor Client Contract Manager is appointed; (ii) require that the Client Contract Manager respond promptly to any reasonable requests from Digital Intellective for instructions, information, or approvals required by Digital Intellective to provide the Services; (iii) cooperate with Digital Intellective in its performance of the Services and provide access to Client’s premises, employees, contractors, and equipment as required to enable Digital Intellective to provide the Services; (iv) take all steps necessary, including obtaining any required licenses or consents, to prevent Client-caused delays in Digital Intellective’s provision of the Services; and (v) comply with all responsibilities of Client as listed on the Statement of Work.

(b)          Client acknowledges and agrees that if any activity or decisions, or any inactivity, of Client result in significant delays to the timeline that cause Digital Intellective to move to another client’s project, Digital Intellective shall have the right to pause the performance of the Services (each, a “Pause”) and restart the performance on the Services based on Digital Intellective’s schedule and availability and, accordingly, timelines for the Services will be adjusted. Digital Intellective shall have no liability associated with any Pause, including any cost incurred by Client arising out of or relating to any Pause. In the event a Pause occurs, Digital Intellective, in its sole discretion, may charge Client a fee to restart the Services which shall be paid in accordance with Section 4.

4.    Fees and Expenses. Client shall pay the fees set out in the applicable Statement of Work and any payments owed to Digital Intellective under Section 3(b). Unless otherwise provided in the applicable Statement of Work, all payments shall be paid within 30 days of the date set forth on an invoice. Client shall reimburse Digital Intellective for all reasonable expenses identified on the Statement of Work. Client shall be responsible for all sales, use 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 amounts payable by Client hereunder; and to the extent Digital Intellective is required to pay any such sales, use, excise, or other taxes or other duties or charges, Client shall reimburse Digital Intellective in connection with its payment of fees and expenses as set forth in this Section 4. Notwithstanding the previous sentence, in no event shall Client be responsible for any taxes imposed on, or regarding, Digital Intellective’s income.

5.    Intellectual Property; Ownership.

(a)          Except as set forth in Section 5(c), Client is, and shall be, the sole and exclusive owner of all right, title, and interest in and to the Deliverables (as defined in below). Digital Intellective agrees that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. § 101, such Deliverables are hereby deemed a “work made for hire” for Client. To the extent that any of the Deliverables do not constitute a “work made for hire”, Digital Intellective hereby irrevocably assigns, without additional consideration, all right, title, and interest throughout the world in and to the Deliverables. Digital Intellective shall cause its personnel to irrevocably waive, to the extent permitted by applicable law, any and all claims such Digital Intellective personnel may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverables. As used herein, “Deliverables” mean all documents, work product, and other materials, including designs in object code only, that are delivered to Client hereunder or prepared by or on behalf of Digital Intellective in the course of performing the Services, except for any Background Content (as defined in Section 5(c)).

(b)          Upon Client’s reasonable request, Digital Intellective shall, and shall cause Digital Intellective’s personnel to, at Client’s sole cost and expense, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect, or record its rights in or to any Deliverables.

(c)          Digital Intellective and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to (i) the Pre-Existing Materials (as defined below) and (ii) the Background Content, including all Intellectual Property Rights (as defined below) therein. Digital Intellective hereby grants Client a limited, irrevocable, perpetual, fully paid-up, royalty-free, non-transferable, non-sublicensable, worldwide license to use any Pre-Existing Materials and Background Content to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables solely to the extent reasonably required in connection with Client’s receipt or use of the Services and Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Digital Intellective. As used herein: (1) “Pre-Existing Materials” means the all documents, data, know-how, methodologies, software, and other materials, including computer programs, reports, and specifications, provided by or used by Digital Intellective in connection with performing the Services, in each case developed or acquired by Digital Intellective prior to the commencement or independently of this Agreement; (2) “Background Content” means any content, course player, snippets, diagrams, colors, imagery, stock images and videos, b-roll videos, vectors, icons, flow-charts, tools, sketches, drawings, samples, records, documentation, methodology, and styles, including all Intellectual Property Rights therein, created during the provision of the Services and the Deliverables that does not identify any Client Materials; (3) “Client Materials” mean any documents, data, know-how, methodologies, software, and other materials provided to Digital Intellective by Client, the Specifications; and (4) “Intellectual Property Rights” mean means all (A) patents, patent disclosures, and inventions (whether patentable or not), (B) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (C) copyrights and copyrightable works (including computer programs), and rights in data and databases, (D) trade secrets, know-how, and other confidential information, and (E) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

6.    Confidentiality. Either Party (the “Disclosing Party”) may disclose or make available to the other Party (the “Receiving Party”), non-public, proprietary, and confidential information of the Disclosing Party, whether disclosed in writing or orally, and whether or not labeled as “confidential” (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Section 6; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source that was not legally or contractually restricted from disclosing such information; (c) the Receiving Party establishes by documentary evidence, was in the Receiving Party’s possession prior to the Disclosing Party’s disclosure hereunder; or (d) the Receiving Party establishes by documentary evidence, was or is independently developed by the Receiving Party or its personnel without using any of the Disclosing Party’s Confidential Information. The Receiving Party shall: (i) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives (as defined below) who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall provide, if permitted by applicable law, (1) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (2) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, the Receiving Party remains required by applicable law to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment. As used herein, “Representatives” mean a Party’s affiliates and each of their respective employees, agents, contractors, subcontractors, officers, directors, partners, shareholders, attorneys, third-party advisors, successors and permitted assigns.

7.    Personal Data. Client acknowledges and agrees that, in performing its obligations to provide information to Digital Intellective hereunder, Client shall not, and shall cause its Representatives not to, without the prior written consent of Digital Intellective, provide or make available or accessible to Digital Intellective any Personal Data. For the avoidance of doubt, the foregoing restrictions do not apply to any information that is anonymized or to the first and last names and email addresses of any individuals that knowingly provide, and consent to the provision of, such specific personal information to Digital Intellective. To the extent Client provides any Personal Data to Digital Intellective, Client represents that it has the authority to provide such Personal Data to Digital Intellective. As used herein, “Personal Data” means a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or tax identification number, driver’s license number, passport number, credit card number, bank information or biometric information or any other piece of information that allows the identification of such natural person, or any other data which is considered “personal data” (or any similar concept thereto) as defined under applicable privacy laws.

8.    No Responsibility or Liability for Compliance with Laws. Digital Intellective shall not be responsible for have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to applicable law relating to the Deliverables or the use thereof, including the Americans with Disabilities Act of 1990, the General Data Protection Regulation (and similar data and privacy laws), the Children’s Online Privacy Protection Act, Health Insurance Portability and Accountability Act, the Sarbanes-Oxley Act, or any rules or regulations provided by the Federal Trade Commission. Digital Intellective shall be performing the Services and delivering the Deliverables solely in reliance on the Specifications and Client shall be solely liable that the Specifications also conform to applicable law. Client agrees to assume fully responsibility for any compliance with applicable law that may apply to the use of, or reliance upon any content or information contained in, the Deliverables.

9.    Use of Artificial Intelligence. Client acknowledges that Digital Intellective may use, and Client hereby consents to Digital Intellective using, artificial intelligence (“AI”) technology in providing the Services under this Agreement. Client acknowledges and agrees that the Services may contain content or information that was generated using AI technology. Client recognizes that generative AI technology may still occasionally generate incorrect, incomplete, misleading, irrelevant, or nonsensical information and, accordingly, such information should be treated with the appropriate caution and skepticism. Client and Client’s users should refer to and verify any AI generated information through original source documents and/or other reliable and authoritative sources. AI generated content is for informational purposes only and should not be used as a substitute for original research or expert opinions, nor interpreted as legal, financial, medical, or any other professional advice. Client agrees to assume fully responsibility for any use of or reliance upon any content or information contained in the Services. Digital Intellective shall use commercially reasonable efforts to identify and remove Client-identifying data that is contained in data used for providing the Services through the use of AI technology.

10.    Indemnification. Client shall defend, indemnify, and hold harmless Digital Intellective and its affiliates and its and their respective members, managers, officers, directors, employees, agents, successors, and permitted assigns from and against all Losses (as defined herein) arising out of or resulting from any third-party claim arising out of or resulting from: (a) bodily injury, death of any person, or damage to real or tangible, personal property resulting from the grossly negligent or willful acts or omissions of Client; (b) Client’s breach of any representation, warranty, or obligation of Client in this Agreement, or (c) any claim that the Services or the Deliverables or Client’s receipt or use thereof infringes any Intellectual Property Right of a third party to the extent arising out of (i) any Client Materials, Specifications, designs, AI, or other materials provided by Client to Digital Intellective, (ii) use of the Deliverables in combination with any materials or equipment not supplied to Client or specified by Digital Intellective if the infringement would have been avoided by the use of the Deliverables not so combined, (iii) any modifications or changes made to the Deliverables by or on behalf of any person or entity other than Digital Intellective or Digital Intellective’s personnel, or (iv) any violation of applicable law arising out of or related to the use of the Deliverables. As used herein, “Losses” mean all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

11.    Representations and Warranties. Each Party represents and warrants to the other Party that: (a) if an entity, it is duly organized, validly existing and in good standing as an entity as represented herein under the laws and regulations of its jurisdiction of organization; (b) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder, and to perform its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Party; and (d) when executed and delivered by such Party, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable in accordance with its terms.

12.    Limited Warranty; Disclaimers.

(a)          Digital Intellective warrants that it shall perform the Services: (i) in accordance with the terms and subject to the conditions set out in the respective Statement of Work and this Agreement; (ii) using personnel of industry standard skill, experience, and qualifications; and (iii) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.

(b)          Digital Intellective’s sole and exclusive liability and Client’s sole and exclusive remedy for breach of this warranty shall be as follows: (i) Digital Intellective shall use commercially reasonable efforts to promptly cure any such breach; provided, that Client provides written notice of any breach within 30 days of delivery of the Deliverable or Service; (ii) if Digital Intellective cannot cure such breach within a reasonable time after Client’s written notice, Client may terminate this Agreement by serving written notice of termination to Digital Intellective; and (iii) if this Agreement is so terminated by Client, Digital Intellective shall refund any pre-paid fees.

(c)          Client acknowledges that it is responsible for confirming that the Deliverables comply with applicable law and, prior to the use and market of the Deliverables, conforming the Deliverables to comply with applicable law. Digital Intellective provides no warranties with respect to the Deliverables confirming to applicable law.

(d)          DIGITAL INTELLECTIVE MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 12(a) ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.

13.    Limitation of Liability. IN NO EVENT SHALL DIGITAL INTELLECTIVE BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT DIGITAL INTELLECTIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL DIGITAL INTELLECTIVE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO DIGITAL INTELLECTIVE PURSUANT TO THE APPLICABLE STATEMENT OF WORK GIVING RISE TO THE CLAIM.

14.    Term and Termination. This Agreement shall commence on the date set forth in the applicable Statement of Work and shall continue thereafter until the Services are complete or earlier terminated by either Party as set forth herein (the “Term”). Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party: (a) breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within 7 business days or is not dismissed or vacated within 45 days after filing; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; or (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Termination of this Agreement shall terminate any outstanding Statement of Work, except those Statements of Work expressly affirmed by the Parties in writing. In the event Digital Intellective terminates this Agreement for breach, any amounts then owing to Digital Intellective shall become immediately due and payable.

15.    Insurance. During the term of this Agreement, Client shall, at its own expense, maintain and carry insurance with financially sound and reputable insurers, in full force and effect that includes, but is not limited to, commercial general liability on an all-risk basis and including extended coverage for matters set forth in this Agreement with financially sound and reputable insurers. Upon Digital Intellective’s request, Client shall provide Digital Intellective with a certificate of insurance from Client’s insurer evidencing the insurance coverage specified in this Agreement. The obligations to maintain insurance shall in no way limit Client’s obligations hereunder.

16.    Publicity. Client acknowledges and agrees that Digital Intellective shall have the right to use Client’s name and likeness in any publicity materials prepared by Digital Intellective and in presentations to current or prospective clients, investors and others.

17.    Entire Agreement. This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.

18.    Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other Party at its address set forth on the Statement of Work (or to such other address that the receiving Party may designate from time to time in accordance with this Section 18). All Notices must be delivered by email, personal delivery, or nationally recognized overnight courier and shall be effective upon receipt by, or confirmed delivery to, the receiving Party.

19.    Severability. If any term or provision of this Agreement 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 invalidate or render unenforceable such term or provision in any other jurisdiction.

20.    Waiver. No waiver by any Party of any of the provisions of this Agreement 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 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.

21.    Assignment; Successors and Assigns. Neither Party shall assign, transfer, or delegate any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other Party. Any purported assignment or delegation in violation of this Section 21 shall be null and void. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective successors and permitted assigns.

22.    Relationship of the Parties. The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by Digital Intellective be under its own control. Digital Intellective shall be solely responsible for supervising, controlling, and directing the details and manner of the completion of the Services. Nothing contained in this Agreement 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.

23.    No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns.

24.    Choice of Law; Venue. This Agreement and all related documents including all exhibits attached hereto and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Indiana, without giving effect to the conflict of laws provisions. Each Party submits to the exclusive jurisdiction of the courts located in Marion County, Indiana and each Party irrevocably waive, to the fullest extent permitted by law, to the venue of an action brought in Marion County, Indiana. In any action or proceeding to enforce one’s rights under this Agreement, the non-prevailing Party shall pay the reasonable costs and expenses (including reasonable attorney’s fees) of the prevailing Party.

25.    Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING STATEMENTS OF WORK, EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.

26.    Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Client to make payments to Digital Intellective hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the reasonable control of the impacted Party (“Impacted Party”), including the following force majeure events (“Force Majeure Event(s))”: (a) acts of God; (b) flood, fire, earthquake, pandemics, epidemics, or explosion; (c) war, invasion, hostilities, terrorist threats or acts, riot, or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages, or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. If the Impacted Party’s failure or delay remains uncured for a period of 30 days following written notice given by it under this Section 26, the other Party may terminate this Agreement upon 15 days’ written notice.