WHEREAS, the Client desires to retain nstAI to provide certain advisory and consulting services upon the terms and conditions hereinafter set forth, and nstAI is willing to undertake such obligations.
NOW, THEREFORE, in consideration of the foregoing and the mutual and dependent covenants hereinafter set forth, the parties agree as follows:
1. Services. Attached to this Agreement is one or more schedules (the "Service Schedules") that have been separately signed by nstAI and the Client. The Client hereby engages nstAI, and nstAI hereby agrees, upon the terms and subject to the conditions set forth in this Agreement and in the Service Schedules, to provide the services (the "Services") more fully listed and described in each of the Service Schedules.
2. Term. The term of this Agreement shall be the period of time indicated on each Service Schedule for the Services described therein.
3. Compensation and Reimbursement of Expenses for Services. As consideration for nstAI to provide the Services to the Client, the Client shall pay those fees and expenses listed and described in the Service Schedules. Any extraordinary expense will be pre- approved by the client. Interest at a rate per annum equal to ten percent (10%) shall accrue and be payable by the Client on any unpaid fees or expenses, as applicable, until such amounts are paid.
4. Performance and Acceptance of Services. The Client shall use the Services of nstAI as described in the Service Schedules, and nstAI shall make itself available for the performance of the Services upon reasonable notice. nstAI shall perform the Services at the times and places reasonably requested by the Client to meet the needs and requirements of the Client, taking into account other engagements that nstAI may have. Payment of invoices by the Client for Services rendered by nstAI hereunder shall indicate acceptance by the Client of satisfactory delivery of the Services through the date of the period covered by any such invoice.
5. Disclaimer; Limitation of Liability.
(a) Disclaimer. nstAI makes no representations or warranties, express or implied, in respect of the Services to be provided by it hereunder.
(b) Limitation of Liability. Neither nstAI nor any of its officers, directors, managers, principals, stockholders, partners, members, employees, agents and representatives (each a "Related Party" and, collectively, the "Related Parties") shall be liable to the Client for any loss, liability, damage or expense arising out of or in connection with the performance of any Services contemplated by this
Agreement, unless such loss, liability, damage or expense shall be proven to result directly from the willful misconduct of such person. In no event will nstAI or any of its Related Parties be liable to the Client for special, indirect, punitive or consequential damages, including, without limitation, loss of profits or lost business, even if nstAI has been advised of the possibility of such damages. Under no circumstances will the liability of nstAI and Related Parties exceed, in the aggregate, the fees actually paid to nstAI hereunder.
6. Indemnification. The Client shall indemnify and hold harmless nstAI and each of its Related Parties (each, an "Indemnified Party") from and against any and all losses, claims, actions, damages and liabilities, joint or several, to which such Indemnified Party may become subject under any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment or decree, made by any third party or otherwise, relating to or arising out of the Services or other matters referred to in or contemplated by this Agreement or the engagement of such Indemnified Party pursuant to, and the performance by such Indemnified Party, of the Services or other matters referred to or contemplated by this Agreement, and the Client will reimburse any Indemnified Party for all costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatening claim, or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto. The Client will not be liable under the foregoing indemnification provision to the extent that any loss, claim, damage, liability, cost or expense is determined by a court, in a final judgment from which no further appeal may be taken, to have resulted solely from the willful misconduct of such Indemnified Party. The reimbursement and indemnity obligations of the Client, under this Section 6 shall be in addition to any liability which the Client may otherwise have, shall extend upon the same terms and conditions to any Related Party or controlling persons (if any), as the case may be, of nstAI and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Client, nstAI, any such Related Party or other person. The provisions of this Section 6 shall survive the termination of this Agreement.
7. Intellectual Property. nstAI retains all of its right, title and interest in and to the following rights and properties (the "nstAI IP Rights"): (a) works of authorship, expressions, designs and design registrations, whether or not copyrightable; (b) trade secrets, business and technical information and know-how, databases, data collections and other confidential and proprietary information and all rights therein; (c) software and firmware, including data files, source code, object code, application programming interfaces, architecture, files, records, schematics, computerized databases and other related specifications and documentation; and (d) all rights to any other types of proprietary and confidential information of nstAI that may be used by nstAI or disclosed to the Client as a part of the delivery of the Services. Notwithstanding the foregoing, to the extent that any nstAI IP Rights may be included as a part of, or otherwise incorporated into, any work product of nstAI and provided to the Client as a part of the Services, nstAI does hereby grant to the Client a fully paid-up, royalty free, perpetual license to use such nstAI IP Rights only to the extent needed by the Client to use such work product for the purposes intended.
8. Independent Contractor. Nothing herein shall be construed to create a joint venture or partnership between the parties hereto or an employee/employer relationship. nstAI shall be an independent contractor pursuant to this Agreement. Neither party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking with any third party. Nothing in this Agreement shall be deemed or construed to enlarge any fiduciary duties or responsibilities, if any, of nstAI or any of its Related Parties.
9. Permissible Activities. Nothing herein shall in any way preclude nstAI or its Related Parties from engaging in any business activities or from performing services for its or their own account or for the account of others, including, without limitation, companies which may be in competition with the business conducted by the Client.
10. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 10).
If to nstAI: 44 Golden Scroll Cir
the Woodlands, TX 77382
E-mail:
[email protected]
Attention: Bill Weathersby CEO
11. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements (including any previously signed letter of intent, memorandum of understanding or similar document or agreement), whether written or oral, with respect to such subject matter.
12. Successor and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. However, neither this Agreement nor any of the rights of the parties hereunder may otherwise be transferred or assigned by any party hereto, except that (a) if the Client shall merge or consolidate with or into, or sell or otherwise transfer substantially all its assets to, another company which assumes the Client's obligations under this Agreement, the Client may assign its rights hereunder to that company, and (b) nstAI may assign its rights to receive the Rights Interest Payment to any other person or party upon prior notice to the Client. Any attempted transfer or assignment in violation of this Section 12 shall be void.
13. Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. 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.
14. Severability. If any term or provision of this Agreement is 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. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15. Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Texas. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States of America or the courts of the State of Texas in each case located in the city of Houston and County of Harris, 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 mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Each 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 or the transactions contemplated hereby. Each party to this Agreement certifies and acknowledges that (a) no representative of any other party has represented, expressly or otherwise, that such other party would not seek to enforce the foregoing waiver in the event of a legal action; (b) such party has considered the implications of this waiver; (c) such party makes this waiver voluntarily; and (d) such party has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 15.
16. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
17. No Strict Construction. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties, and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
