If ONE Tech is providing access to its Service to Customer, such access shall be governed by (i) the then-current version of the ONE Tech, Inc. Terms of Service located at: https://www.micro.ai (the “Terms”), (ii) this TSA and (iii) the Order. Except as set forth in this TSA as applicable to Technical Services, this TSA shall otherwise be subject to the Terms. Any terms not used herein but not defined will have the meaning defined in the Terms. In the event of a conflict between the TSA and the Terms, this TSA shall supersede and control solely in connection with the Technical Services to be provided. This TSA, together with the Order, and the Terms (and ancillary agreements, policies and addenda referenced therein) constitute the entire understanding between ONE Tech and Customer and is intended as the final expression of the parties’ agreement regarding the Technical Services to be provided by ONE Tech. This TSA, together with the Order, expressly revoke and supersede any and all such prior agreements, statements, understandings and verbal and/or written communications related to the technical services to be provided by ONE Tech.
Under this Technical Services Addendum (“TSA”), certain consulting and technical services will be provided to Customer by or on behalf of ONE Tech (“Technical Services”) as further described in an Order referencing this TSA and/or the Terms and executed by both parties describing: (a) the services to be performed, (b) Fees and (c) any applicable milestones, scope of service, and other technical specifications or related information related to the Technical Services. All Orders shall be deemed part of and subject to this TSA and Terms.
Any requirement(s) or deviations from the scope of work or terms that are not specifically included and described in an Order will be considered outside the scope and must be procured separately through a formal, written, signed amendment or change order to the Order (“Change Order”) that may result in additional cost or modified terms.
3.1 Assistance Customer agrees to provide ONE Tech with reasonable access to Customer Materials (defined below), resources, personnel, equipment or facilities to the extent such access is necessary for the provision of Technical Services. ONE Tech shall have no liability and shall be excused from the performance of Technical Services with respect to its inability to perform such Technical Services to the extent caused by Customer’s failure or delay to provide necessary Customer Materials in a timely manner.
3.2 Customer Materials. Customer hereby grants ONE Tech a limited right to use any Customer materials provided to ONE Tech in connection with Technical Services (the “Customer Materials”) solely for the purpose of providing Technical Services to Customer. Customer will retain any of its rights (including all intellectual property rights) in the Customer Materials. Customer represents and warrants to ONE Tech that Customer has sufficient rights in the Customer Materials to grant the rights granted to ONE Tech in this Section and that the Customer Materials do not infringe or violate the intellectual property, publicity, privacy or other rights of any third party.
3.3 Assistance. Customer agrees to provide ONE Tech with reasonable access to Customer Materials defined below), resources, personnel, equipment or facilities to the extent such access is necessary for the provision of Technical Services. ONE Tech shall have no liability and shall be excused from the performance of Technical Services with respect to its inability to perform such Technical Services to the extent caused by Customer’s failure or delay to provide necessary Customer Materials in a timely manner.
3.4 Customer Materials. Customer hereby grants ONE Tech a limited right to use any Customer materials provided to ONE Tech (the “Customer Materials”) solely in connection with the provision of the Technical Services to Customer. Customer will retain any of its rights (including all intellectual property rights) in the Customer Materials. Customer represents and warrants to ONE Tech that Customer has sufficient rights in the Customer Materials to grant the rights granted to ONE Tech herein and that the Customer Materials do not infringe or violate the intellectual property, publicity, privacy or other rights of any third party.
4.1 License to Deliverables. Unless otherwise set forth in the applicable Order, subject to this TSA, ONE Tech hereby grants Customer a limited, non-exclusive, royalty-free, nontransferable worldwide license to use the Deliverables solely in connection with such Customer’s use of the Service during the period in which such Customer has valid access to the Service. Customer may not reverse engineer, decompile, disassemble, translate, copy, reproduce, display, publish, create derivative works of, assign, sell, lease, rent, license, sublicense or grant a security interest in all or any portion of the Deliverables. “Deliverables” means anything provided to Customer under this TSA, including, but not limited to all deliverables, work product, code and any improvement, enhancement or modification thereof, excluding any Customer Materials.
4.2 License to Tools. Notwithstanding any other provision of this TSA: (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques and expertise (“Proprietary Know-How”) used by ONE Tech to develop the Deliverables, and to the extent such Proprietary Know-How are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables or as otherwise agreed by Customer; and (ii) the term “Deliverables” shall exclude the Proprietary Know-How. Proprietary Know-How are ONE Tech Confidential Information.
4.3 Restrictions. Customer shall not (and shall not permit any third party to): (a) use, copy or distribute the Deliverables or Proprietary Know-How except as expressly permitted herein; (b) reverse engineer, decompile or disassemble any Deliverables; or (c) modify or create any derivative work of the Deliverables (unless expressly permitted in the applicable Order).
4.4 ONE Tech Ownership. Except as expressly provided in Section 4.1, ONE Tech does not grant any rights or licenses to Customer under its intellectual property rights, whether express or implied and Customer may not grant any such rights to any third parties. Notwithstanding anything to the contrary herein, except as expressly provided in Section 4.1, ONE Tech and its licensors have and will retain all right, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to (a) the Service, (b) the Deliverables, (c) any Proprietary Know How used or embodied in any Deliverables, (d) any and all related and underlying technology and documentation, and (e) any modifications, improvements and derivative works thereof created by or for ONE Tech (including to the extent incorporating Feedback) (collectively, “ONE Tech Technology”). Notwithstanding anything to the contrary herein, ONE Tech may freely use and incorporate into ONE Tech’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any Users relating to ONE Tech’s products or services (collectively, “Feedback”).
The parties assume that ONE Tech will not have access to Customer Data in performance of the Technical Services unless specifically stated in an Order. Customer agrees that it will not grant ONE Tech access to Customer Data unless specifically required and noted in an Order. However, If an Order specifically requires access to Customer Data, then unless otherwise specified in the Order, ONE Tech’s access to such Customer Data is subject to the following terms and conditions: (a) Customer is solely responsible for ensuring that both the duration and configuration of the scope of access to Customer Data is strictly limited to the access required under the specific Order; (b) such access may not extend past the Term of the applicable Order and will be limited to the ONE Tech Service; (c) Customer is solely responsible for access control management and must ensure that any access to Customer Data that Customer grants to ONE Tech is limited to: (i) read-only access; and (ii) in Customer’s ONE Tech development environment only; (d) Customer will not grant ONE Tech access to any other ONE Tech environment (including, but not limited to test, prod or disaster recovery); (e) ONE Tech may only access Customer Data through secure Customer workstations and networks that are provided, monitored, managed, configured, supported and maintained by Customer; (f) Customer must provide unique user ID/passwords to any ONE Tech resource that requires access to Customer Data as described herein; (g) such credentials noted in (f) above will be solely managed by Customer and Customer will be responsible for any consumption generated from the supplied credentials and (h) Customer will not grant access to any Customer Data that is unencrypted or contains personal data.
Customer will pay ONE Tech the Fees and other amounts (including reimbursable charges) and at the times set forth in the applicable Order. Unless otherwise agreed to by the parties in the applicable Order, all payments are non-refundable and shall be made in U.S. dollars within thirty (30) days from the date of ONE Tech’s invoice. Customer is responsible for paying all taxes associated with its purchases hereunder other than taxes based on income, property, or employees of ONE Tech If ONE Tech has the legal obligation to pay or collect taxes for which Customer is responsible under this Section, ONE Tech will invoice Customer and Customer will pay that amount unless Customer provides ONE Tech with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes will not be deducted from payments to ONE Tech, except as required by applicable law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and with holdings, ONE Tech receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or with holdings been made. Upon ONE Tech’s request, Customer will provide to ONE Tech its proof of withholding tax remittance to the respective taxing authority. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
This TSA remains in effect until termination of the Terms, the termination of the applicable Order, or as terminated in accordance with this Section. Either party may terminate this TSA for convenience at any time by giving the other party thirty (30) days written notice, but such termination will not affect any Order in effect at the time of termination (and this TSA will continue to survive and apply with respect to any such Order until expiration or termination of such Order hereunder). In addition, either party may terminate this TSA or any Order if the other party: (a) fails to cure any material breach of this TSA or Order within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Sections 3 (Customer Obligations), 4 (Deliverables and ONE Tech Technology), will survive any termination or expiration of this TSA. Section 6 (Payment and Taxes) will survive with respect to payments accrued prior to termination.
ONE Tech warrants that any Technical Services will be performed in a professional and workmanlike manner in accordance with industry standards and substantially in accordance with the Order. In the event of a breach of this warranty, ONE Tech will use commercially reasonable efforts to re-perform the Technical Services to correct the non-conformity, at no charge to Customer, and if ONE Tech is unable to correct the reported non-conformity after two attempts, either party may terminate the applicable Order and Customer will receive a refund of any unused Fees Customer has pre-paid for the Technical Services purchased thereunder. The foregoing shall be Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section. This warranty will not apply unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity.
ONE Tech’s relationship with Customer will be that of an independent contractor. Neither party will have any authority to bind the other, to assume or create any obligation, to enter into any agreements, or to make any warranties or representations on behalf of the other. Nothing in this TSA shall be deemed to create any agency, partnership or joint venture relationship between the parties. Each party is solely responsible for all of its employees and agents and its labor cost and expenses and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of each party’s activities or those of its employees or agents in the performance of this TSA. ONE Tech reserves the right to use third-parties (who are under a covenant of confidentiality with ONE Tech) to provide any Technical Services described hereunder.