DemandScope Services Agreement

DEMANDSCOPE SERVICES AGREEMENT

This DemandScope Services Agreement (the "Agreement") is made as of , (the "Effective Date") by and between Provider Name: , a with principal place of business at ("Provider"), and Client Name: , a with principal place of business at ("Client").

RECITALS

WHEREAS, Provider is in the business of providing data-driven demand planning, analytics, and advisory services under the trade name DemandScope; and

WHEREAS, Client desires to retain Provider to perform the services described in this Agreement and Provider desires to perform such services on the terms and conditions set forth herein.

WHEREAS, Provider and Client desire to set forth their respective rights and obligations with respect to the performance, payment for, and ownership of work product arising from the services.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows:

1. SERVICES

1.1 Scope. Provider shall perform the services described in the scope attached as Exhibit A or, if no Exhibit A is attached, as described below (the "Services"). Provider will use commercially reasonable efforts to perform the Services in accordance with accepted industry standards and the schedule agreed by the parties.

2. TERM

2.1 Term. The term of this Agreement shall commence on the Effective Date and continue for months, unless earlier terminated in accordance with Section 9.

2.2 Renewal. This Agreement shall automatically renew for successive periods of months unless either party provides written notice of non-renewal at least days prior to the end of the then-current term.

3. FEES AND PAYMENT

3.1 Fees. Client shall pay Provider the fees set forth in the applicable Statement of Work or as set forth below. Unless otherwise agreed, fees are due within days from invoice date.

3.2 Expenses. Client shall reimburse Provider for reasonable, pre-approved out-of-pocket expenses incurred in performing the Services upon submission of receipts or other documentation.

3.3 Late Payments. Past due amounts shall accrue interest at a rate of or the maximum rate permitted by law, whichever is less. Client shall also reimburse Provider for collection costs, including reasonable attorneys' fees.

4. CONFIDENTIALITY

4.1 Definition. "Confidential Information" means non-public information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party") that is designated confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

4.2 Obligations. The Receiving Party shall (a) use Confidential Information solely to perform its obligations under this Agreement, (b) protect Confidential Information with at least the same degree of care it uses to protect its own confidential information, and (c) not disclose Confidential Information except to employees, contractors and advisors who have a need to know and are bound by confidentiality obligations.

4.3 Exclusions. Confidential Information shall not include information that is or becomes publicly available through no fault of the Receiving Party, is rightfully received from a third party without restriction, or is independently developed without breach of this Agreement.

5. INTELLECTUAL PROPERTY

5.1 Background IP. Each party retains all right, title and interest in its pre-existing intellectual property and technology ("Background IP"). Nothing in this Agreement transfers ownership of Background IP.

5.2 Deliverables. Subject to Client's payment of all fees due, Provider grants Client a non-exclusive, worldwide, perpetual license to use Deliverables (as defined below) solely for Client's internal business purposes. "Deliverables" means materials specifically created by Provider for Client and delivered under this Agreement.

5.3 Provider Tools. Notwithstanding the foregoing, Provider shall retain ownership of Provider's tools, algorithms, models, templates and other materials used or developed in providing the Services, including any improvements or modifications thereto, and Client receives only the limited license specified in Section 5.2.

6. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

6.1 Mutual Representations. Each party represents that it has the full corporate power and authority to enter into this Agreement and to perform its obligations hereunder.

6.2 Provider Warranty. Provider represents that it will perform the Services in a professional and workmanlike manner consistent with generally recognized industry standards. Client's exclusive remedy for breach of this warranty shall be re-performance of the deficient Services or, if Provider cannot cure within a reasonable period, refund of the fees paid for the deficient Services.

6.3 DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

7. INDEMNIFICATION

7.1 By Provider. Provider shall indemnify, defend and hold Client harmless from and against any third-party claims arising out of Provider's gross negligence or willful misconduct in performing the Services or Provider's breach of Section 5 (Intellectual Property) to the extent such claim is caused by Provider's act or omission.

7.2 By Client. Client shall indemnify, defend and hold Provider harmless from any third-party claims arising from Client's negligence, willful misconduct, use of the Deliverables in a manner not authorized by this Agreement, or Client-provided data.

7.3 Procedure. The indemnified party shall provide prompt written notice of any claim and shall allow the indemnifying party to control the defense and settlement of such claim; provided that the indemnifying party may not settle any claim that imposes liability on the indemnified party without the indemnified party's prior written consent.

8. LIMITATION OF LIABILITY

8.1 Exclusion. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.2 Cap. Except for liability arising from a party's gross negligence, willful misconduct, or breach of Section 4 (Confidentiality) or Section 5 (Intellectual Property), each party's aggregate liability arising out of or related to this Agreement shall not exceed the total fees paid by Client to Provider under this Agreement in the months prior to the event giving rise to the claim.

9. TERMINATION

9.1 For Convenience. Either party may terminate this Agreement for convenience upon days' prior written notice to the other party.

9.2 For Cause. Either party may terminate this Agreement for material breach if the breaching party fails to cure such breach within days after receipt of written notice of the breach.

9.3 Effect of Termination. Upon termination, Client shall pay Provider for Services performed and expenses incurred through the effective date of termination. Sections concerning Confidentiality, Intellectual Property, Indemnification, Limitation of Liability, Governing Law, and any other provision that by its nature survives termination shall survive.

10. NOTICES

All notices required or permitted under this Agreement shall be in writing and delivered to the addresses below by certified mail, nationally recognized overnight courier, or email confirmed by first-class mail. Notice is effective upon receipt.

11. AMENDMENTS; WAIVER

This Agreement may be amended only by a written instrument executed by authorized representatives of both parties. No waiver of any provision shall be effective unless in writing signed by the waiving party, and no waiver shall operate as a waiver of any other or subsequent breach.

12. COUNTERPARTS; ELECTRONIC SIGNATURES

This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Signatures transmitted by electronic means shall have the same force and effect as original signatures.

13. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the State of without regard to its conflicts of law principles.

14. ENTIRE AGREEMENT

This Agreement, together with any Statement of Work and any exhibits attached hereto, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals and communications, whether written or oral.

15. SEVERABILITY

If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect and the parties shall endeavor to replace the invalid or unenforceable provision with a valid provision that most closely approximates the parties' original intent.

MISCELLANEOUS

15.1 Independent Contractors. The parties are independent contractors. Nothing in this Agreement creates any agency, partnership, joint venture, or employment relationship between the parties.

15.2 Subcontracting. Provider may engage subcontractors to perform portions of the Services provided that Provider remains responsible for the acts and omissions of such subcontractors.

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