These Dynapt Service Agreement (“Agreement”) is  between Dynapt Inc., a Texas corporation with its principal office at 1530 Sun City Blvd., Suite 120, PMB 455, Georgetown, TX 78633 (“Dynapt”) and the client (“Company”) listed in a Statement of Work (“SOW”).  This Agreement is binding upon the parties upon execution of a SOW incorporating its terms.  In consideration of the mutual covenants herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1.   SOWs & Services.  

(A) SOW.  The parties shall execute SOWs for services to be performed by Dynapt (“Services”).  Each SOW shall be deemed incorporated by reference into and governed by this Agreement. In the event of a conflict between the main body of this Agreement and the SOW, this Agreement will govern, unless the SOW explicitly notes otherwise.  

(B) Change Requests.  Either party may request changes to the scope of Services at any time. Changes shall be requested with sufficient detail to enable Dynapt to assess the impact of the requested change. Upon making or receiving a change request, Dynapt shall promptly provide in writing to Company any additional proposed costs or time necessary to implement such changes. Any such changes shall only be effective upon the execution of a written amendment to the applicable SOW.  

(C) Company Obligations.  Company agrees to provide timely cooperation and assistance necessary to perform the Services, and to comply to all laws applicable to his businesses, including any export restrictions.  Such cooperation and assistance shall include without limitation: (i) identifying a primary point of contact in a SOW for administrative, financial and operational matters; (ii) providing all Company Materials, systems access and other resources required to create the Work Product, including source code and documentation for any Company products; and (iii) procuring all necessary licenses and permissions to any Company Materials.  Dynapt agrees to comply with any Company policies and procedures provided to it in advance and with opportunity to comply. Dynapt shall have the discretion to assign personnel and engage subcontractors as necessary to perform the Services. If specified in an SOW, the Client may request the replacement of key personnel with reasonable justification. Any such request must be made in writing, and Dynapt shall use commercially reasonable efforts to accommodate such requests without undue disruption to Services.

(D) Resale of Licenses.  In addition to any Services, Dynapt may resell certain software products, as further detailed in a SOW (“Resale Products”).  By purchasing Resale Products through Dynapt, the Company agrees to be bound by the Resale Product’s end user license agreements (“EULA”), including without limitation AWS Customer Agreement and Microsoft EULA, as well as any other terms and conditions presented by Dynapt in a SOW.

(E) Service Level Agreements (SLAs). Dynapt shall use commercially reasonable efforts to maintain 97.5% uptime per calendar month, excluding Scheduled Maintenance. Dynapt does not guarantee specific response or resolution times unless specified in an SOW. Scheduled Maintenance, including system updates, patches, or infrastructure upgrades with at least 72 hours' notice, shall not count as downtime. Dynapt may perform emergency maintenance as needed. Uptime calculations shall exclude downtime caused by third-party failures (e.g., hosting providers, cloud platforms, integrations), force majeure events (e.g., natural disasters, outages beyond Dynapt’s control), security-related maintenance required for risk mitigation, Client-caused issues (e.g., misuse, unauthorized changes, failure to follow Dynapt recommendations), and downtime in trial or non-production environments. If uptime falls below 97.5% in a calendar month, the Client may request a credit of up to 5% of the affected service’s monthly fee, provided the request is made in writing within 7 days of the affected month. This is the Client’s sole and exclusive remedy for service unavailability. Total service credits cannot exceed one month’s fees for the affected service in any rolling 12-month period.

2. Fees & Payment.

(A) Fees & Expenses.  Dynapt shall charge Company the fees set forth in a SOW.  Dynapt shall also charge Company any out-of-pocket expenses approved in a SOW, provided that such expenses shall be charged to Company at cost, and without markup.  

(B) Taxes.  Except for any taxes applicable to the gross income of Dynapt, Company is responsible for and shall pay any sales, use, excise, gross receipts, property, privilege, value-added, or other federal, state, or local taxes or tariffs (including any interest or penalties related thereto) now in force or enacted in the future which are applicable to the Services.  

(C) Invoicing & Payment.  Unless otherwise set forth in a SOW, Dynapt will submit invoices to the Company.  All out-of-pocket expenses and taxes shall be separately itemized on the applicable invoice.  Company will pay each invoice within 15 days after receipt of the invoice.

(D) Late Payment. Late payments are subject to interest at a rate of one and one-half percent (1.5%) per month from the original due date or the maximum interest allowed by law, whichever is less. Further, with respect to any Resale Products, if payment is not received on the renewal date of the Resale Product license (as listed in a SOW), the license will be suspended until payment is received, and if such suspension lasts for fifteen (15) days, the license will be cancelled.  Company will be responsible for all costs of collection that Dynapt incurs (including any attorneys’ fees) in connection with Dynapt’s efforts to collect any delinquent payments.  If any payments are more than fifteen (15) days past due, Dynapt may suspend the Services until payment is received.

(E) Audits. Company may conduct a financial audit of Dynapt’s invoices and associated out-of-pocket expenses no more than once per 12-month period, with at least 60 days' prior written notice, and only during Dynapt’s normal business hours. Any such audit shall be conducted by an independent, mutually agreed-upon auditor, bound by confidentiality obligations, and shall be limited solely to records directly related to fees paid under this Agreement. Company shall bear all costs associated with any audit. If an audit reveals an overcharge exceeding 10% of the total invoiced amount for the audited period, Dynapt shall promptly reimburse the overage. Any disputes regarding audit findings shall be resolved through good-faith negotiations, and Dynapt shall have 60 days to cure any identified discrepancies before any further action is taken.

3. Confidentiality; Publicity; Data.

(A) Confidential Information.  Each party (“Disclosing Party”) may, in the course of its obligations hereunder, disclose certain Confidential Information to the other party (“Receiving Party”).  “Confidential Information” shall include all data, information and materials which should be understood to be confidential or proprietary, and all other data, information or materials which the Disclosing Party designates, either orally or in writing as being confidential, including without limitation, all product and technology information; software (in source code and object code form); past, present and future marketing, advertising and promotional activities; sales information; market forecasts and business plans; trade secret information; other business plans; and information concerning customers and  partners.  

(B) Disclosure & Use.  The Receiving Party agrees that it will not disclose, and will direct all of its personnel not to disclose, any Confidential Information of the Disclosing Party or furnish copies of any written materials relating to the Confidential Information of the Disclosing Party to any other person, firm or entity. The Receiving Party may only utilize the Disclosing Party’s Confidential Information to provide the Services, or otherwise satisfy its obligations pursuant to this Agreement or any SOW, and for no other purpose.  In the event that disclosure of Confidential Information is required in order to perform the Services, the Receiving Party will inform the Disclosing Party and obtain the Disclosing Party’s written authorization to disclose the Confidential Information to a third party. The Receiving Party will advise the recipient of its confidential nature, and the recipient must execute a non-disclosure agreement with protections of confidentiality substantially similar to those contained herein.  If the disclosure of Confidential Information is required by law, then the Receiving Party shall provide the Disclosing Party with reasonable written notice prior to disclosure so that the Disclosing Party has an opportunity to obtain a protective order. The Receiving Party shall be responsible for any violation of the terms of this Section by the Receiving Party’s personnel, affiliates or any person or party who has received access to said Confidential Information from the Receiving Party.  The Receiving Party acknowledges that in the event of a breach of this Section, the Disclosing Party shall be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief without further demonstration of irreparable harm or the need to post bond.

(C) Exceptions.  The term “Confidential Information” does not include any information that (i) was lawfully in the Receiving Party’s possession prior to any disclosure by the Disclosing Party; (ii) is or becomes generally available to the public other than as a result of disclosure in violation of this Agreement, (iii) is received by the Receiving Party from a third party that, to the Receiving Party’s knowledge, has the right to disclose such information, or (iv) is independently developed by the Receiving Party without access to or use of the Confidential Information.

(D) Data Collection; Privacy.  Dynapt shall process data in accordance with its Privacy Policy, which governs all data collection, usage, and security practices unless otherwise agreed in writing. If required due to the nature of the Services, the parties may enter into a separate Data Protection Agreement (“DPA”), which shall apply solely to the processing of personal data as specified therein. The execution of a DPA shall be subject to mutual agreement and shall not modify the terms of this Agreement unless explicitly stated.

(E) Security & Compliance.

             (E)(a) Security Standards. Dynapt shall maintain industry-standard security measures designed to prevent unauthorized access to, and loss or disclosure of, any client data processed as part of the Services. These measures shall include, but are not limited to, access controls, encryption, vulnerability management, and regular security assessments in accordance with Dynapt’s internal policies and insurance requirements.

             (E)(b) Cyber Insurance Alignment. Dynapt maintains cybersecurity coverage, including liability protections for network intrusions, data breaches, and cyber extortion, as outlined in its cyber insurance policy. Client acknowledges that Dynapt’s obligations with respect to security incidents are limited to the extent covered by its insurance, and Dynapt shall not be required to provide any additional warranties or guarantees beyond what is covered under such policy.

             (E)(c) Limitations on Compliance with Client-Specific Policies. Dynapt shall comply with generally accepted security and compliance practices applicable to its industry but shall not be required to adhere to any client-specific security policies, audits, or procedures unless explicitly agreed in a separate Statement of Work. Any such compliance shall be subject to mutual agreement, feasibility, and additional fees where applicable.

4. Ownership.  

(A) Company Materials.  Dynapt may use, or Company may provide to Dynapt, certain Company marks, software (in object code and source code form), application programing interfaces, information, materials, data, products and other assets of Company for inclusion into the Work Product (“Company Materials”).  Company owns all right, title and interest in and to the Company Materials.  Company grants a limited, revocable, non-exclusive right and license during the Term to use the Company Materials to create the Work Product.  

(B) Source Code Escrow. Dynapt does not provide source code escrow or deposit by default. If required by Company, the parties may negotiate a separate escrow agreement, to be defined in the applicable SOW, under the following terms: (i) Company shall bear all costs associated with the escrow arrangement, including but not limited to setup, maintenance, and release fees; (ii) the escrowed materials shall only be released upon Dynapt’s bankruptcy, cessation of operations, or a material breach that remains uncured for 90 days after written notice; (iii) Company shall have no rights to access, modify, or use the source code outside the specific conditions outlined in the escrow agreement; and (iv) any escrowed materials shall remain Dynapt’s proprietary property, and Company shall be bound by confidentiality and use restrictions at all times.

(C) Work Product.  Subject to any rights in Dynapt Materials and Third Party Materials, Dynapt hereby expressly agrees that all final and fully paid for software (in object code and source code form), content, works of authorship, inventions, methods, processes, designs and all copyrights, trademarks, patents, trade secrets and other intellectual property or proprietary rights therein or related thereto, which were created specifically for Company pursuant to  SOW (“Work Product”), shall be a “work made for hire” under the U.S. Copyright Act and that Company shall own all right, title and interest in and to the Work Product.  To the extent ownership of the Work Product does not vest in Company or its designee by operation of law, Dynapt hereby assigns all right, title and interest thereto to Company. Dynapt agrees to take all reasonable actions to perfect such assignment, at Company’s sole cost.

(D) Dynapt Materials. Company acknowledges and agrees that all software (in object code and source code form), materials, information, methodologies, businesses processes, tools, and proprietary data of Dynapt in existence prior to this Agreement, created outside the scope of this Agreement or that are otherwise generic or non-customized in nature by Dynapt hereunder shall remain the sole and exclusive property of Dynapt (“Dynapt Materials”). If any Dynapt Materials are embodied or reflected in Work Product, Dynapt shall grant to Company an irrevocable, perpetual, worldwide, sub-licensable, royalty-free right and license to use such Dynapt Materials solely to the extent included in the Work Product, as instructed and without modification.

(E) Open Source Software. Dynapt may incorporate software that is subject to terms that, as a condition of use, copying, modification or redistribution, require such software and derivative works thereof to be disclosed or distributed in source code form, to be licensed for the purpose of making derivative works, or to be redistributed free of charge ("Open Source Software"). To the extent any Open Source Software license terms are inconsistent with this Agreement, then such rights in the applicable Open Source Software license shall take precedence over the rights granted in this Agreement, but solely with respect to such Open Source Software. Any applicable Open Source Software license is solely between Company and the applicable licensor of the Open Source Software and Company shall comply with the applicable Open Source Software license.

(F) Third Party Materials. The parties acknowledge that all materials, rights, and intellectual property owned by third parties (e.g., data sets, Open Source Software) (“Third Party Materials”) shall remain the sole and exclusive property of such third parties, and the parties agree to use Third Party Materials consistent licensed with the restrictions, limitations, obligations and disclaimers for such Third Party Materials. Further, Company shall receive under the third-party sublicense only such rights and warranties as are offered by such third party licensor who shall be solely responsible to Company for such Third Party Materials.

5. Non-Solicit.  

(A) Non-Solicitation.  Each party agrees that, during the Term of this Agreement and for a period of twelve (12) months thereafter, neither party shall directly or indirectly solicit, hire, or engage as an employee, consultant, contractor, or otherwise any employees, subcontractors, advisors, or strategic partners of the other party who were involved in the Services provided under this Agreement, without the prior written consent of the other party. In the event of a breach of this Section, the breaching party shall pay to the non-breaching party an amount equal to one (1) year of the solicited individual’s total compensation or contract value, as a reasonable estimate of damages and not as a penalty.

6. Term & Termination.

(A) Term.  This Agreement shall commence on the effective date of the first SOW entered into by the parties and shall remain in effect until the later of: (i) three (3) years from the Effective Date, or (ii) six (6) months after the termination or expiration of the last active SOW between the parties, unless earlier terminated in accordance with Section 6(B). This Agreement shall automatically renew for successive one (1) year periods unless either party provides written notice of non-renewal at least thirty (30) days before the end of the then-current term.

(B) Termination.  Each party shall have the right to terminate this Agreement by written notice to the other party if the other party has materially breached any obligation herein and such material breach remains uncured for a period of 30 days after the written notice of such material breach is sent to the other party.  Further, this Agreement may be terminated by either party for convenience upon ninety (90) days prior written notice to the other party.

(C) Obligations on Termination. The rights, duties, obligations and liabilities of the parties pursuant to this Agreement shall continue in full force and effect during any termination notice period, including without limitation, Company’s obligation to pay all fees in full through the notice period. Upon termination of the Agreement for any reason (i) each party shall return or destroy the other party’s Confidential Information; (ii) Dynapt shall provide all Work Product to company, and all other rights and licenses granted by Dynapt to the Company under this Agreement shall immediately terminate; (iii) Dynapt shall be immediately paid any amounts due for Services performed prior to the date of termination; and (iv) Company shall also assume any non-cancellable contracts entered into on Company’s behalf and with its prior authorization.

7. Warranties.    

(A) Dynapt Warranties. Dynapt represents and warrants that: (i) there are no conflicts of interest, or agreements or arrangements that would be breached by Dynapt, upon execution of this Agreement or by performing the Services or providing the Work Product, or that would otherwise impair or prevent Dynapt from rendering the Services to Company, (ii) Dynapt has the necessary resources, expertise and experience to perform the Services and shall perform the Services in a timely, professional and workmanlike manner with due care, and (iii) Dynapt will comply with all laws applicable to its business.

(B) Disclaimer.  Except as expressly provided herein, Dynapt makes no warranty, express or implied, regarding the services or work product to be provided hereunder, including but not limited to warranties that the services or work product will be compatible with company’s equipment or systems, will provide a specific benefit, outcome or result, will be error free or operate without interruption, or any warranties of title, non-infringement, merchantability and fitness for a particular purpose.  Further, Dynapt shall assume no liability amounts or indemnity obligations with respect to any third-party materials or resale materials.  Dynapt does not warrant that the services or work product will be free from security vulnerabilities, unauthorized access, or cyberattacks. Dynapt shall not be responsible for any data loss, breaches, or security incidents except to the extent expressly covered by Dynapt’s cyber insurance policy or required under applicable law.

8. Indemnity.  

(A) Dynapt Indemnity.  Dynapt shall defend, indemnify, and hold Company harmless from third-party claims asserting that the Work Product infringes a U.S. copyright or trade secret (“IP Claim”), except where the claim arises from: (a) use with non-Dynapt products, software, or data; (b) unauthorized modifications or misuse by Company; (c) Company Materials or services; (d) instructions from Company; (e) Open Source Software or Third-Party Materials; or (f) failure to use updates provided by Dynapt. If an IP Claim is made that does not fall under these exclusions, Dynapt may (i) enable continued use of the Work Product, (ii) modify or replace the infringing component, or (iii) terminate this Agreement and refund any pre-paid fees for the affected portion. Dynapt shall not indemnify Company for claims related to cybersecurity incidents, data breaches, unauthorized access (unless caused by Dynapt’s gross negligence or willful misconduct), third-party hosting failures, client non-compliance with security recommendations, or vulnerabilities in third-party integrations, software, or open-source components. Dynapt’s total liability for covered security-related claims shall be limited to amounts recoverable under its cyber insurance policy and shall not exceed the liability limits in this Agreement.

(B) Company Indemnity. Company shall indemnify, defend, and hold harmless Dynapt, its affiliates, and their respective officers, directors, employees, and agents (“Dynapt Indemnitees”) from and against any third-party claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) Intellectual Property Claims: Any claim that the Company Materials provided under this Agreement infringe a third party’s intellectual property rights; (b) Regulatory Compliance: Any claim alleging that the Company’s use of the Work Product violates applicable laws, regulations, or third-party rights, except to the extent caused by Dynapt’s gross negligence or willful misconduct; (c) Misuse or Modification of Work Product: Any claim resulting from Company’s modifications, misuse, or unauthorized use of the Work Product, including failure to implement recommended security measures. Company shall have the right to control the defense and settlement, subject to Dynapt’s reasonable cooperation. No settlement shall impose any obligation on Dynapt without its prior written consent, which shall not be unreasonably withheld.

(C) Indemnification Process.  The party seeking indemnification shall promptly notify the indemnifying party of any claim for which it seeks indemnification; provided, however, that any delay in providing notification shall not impact the indemnifying party’s indemnification obligations, unless the indemnifying party is materially impacted thereby.  The indemnifying party shall have sole control over the defense of a claim, provided that the indemnified party may participate in the defense, at its cost. All settlements of indemnification claims require the consent of the indemnified party.

9. Insurance.

(A) Required Insurance Coverage. Each party shall maintain commercially reasonable insurance coverage, including general liability, professional liability, and cyber liability, consistent with industry standards and the nature of the Services provided. If required by applicable law or jurisdiction, each party shall also maintain workers’ compensation and employer’s liability insurance.

(B) Primary Coverage & Waivers. All required policies shall be primary and non-contributory to the other party’s insurance and include a waiver of subrogation.

(C) Self-Insurance. Either party may self-insure, provided coverage meets industry standards and is financially responsible.

(D) No Automatic Cap on Liability. Insurance coverage does not limit indemnification obligations, and liability remains subject to this Agreement’s Limitation of Liability section. Insurance proceeds shall be applied first before seeking additional damages.

10. Limitation of liability.  

(A) Limitation of liability.  Neither party, nor their respective parents, affiliated companies, directors, officers, employees, shareholders, licensees or agents shall be held liable to the other for indirect, incidental, consequential, special, punitive or exemplary damages or any loss of profit, loss of contracts, loss or damage to reputation and/or goodwill, and loss and corruption of data, arising in any manner from the activities contemplated by this agreement, whether under contract, tort, or other cause of action, even if such party has been advised of the possibility of such damages. Notwithstanding any other provision herein, in no event shall either party’s total aggregate liability to the other exceed the total fee paid to Dynapt within the prior twelve (12) months under the sow under which the dispute arose.

11. Miscellaneous.

(A) Assignment.  Except in the event of a merger, acquisition or change of control, neither party may assign this Agreement without the prior written consent of the other party. Any assignment in violation of the foregoing shall be void.  Notwithstanding the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

(B) Independent Contractor.  Dynapt will be and remain an independent contractor at all times during the performance of services for the Company, and will not be an agent, employee, joint venturer, business partner, or legal representative of Dynapt. Except as set forth herein or in an applicable SOW, Dynapt shall not indicate to any third party that he has any authority to bind the Company.

(C) Law & Jursidiction.  This Agreement shall be governed by the laws of the State of Texas in the United States of America, without regard to principles of conflicts of law. Any dispute arising out of or related to this Agreement shall be resolved in a state or federal court in Texas, unless otherwise mutually agreed upon in an applicable SOW. Each party waives any objection to jurisdiction and venue in Texas, including objections based on forum non conveniens.

(D) Miscellaneous.  All notices to be delivered pursuant to this Agreement shall be delivered to the applicable personnel and address set forth in a SOW (email acceptable). No course of dealing or delay in exercising any rights hereunder shall operate as a waiver of any such rights.  No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default. The remedies under this Agreement shall be cumulative. If any part of this Agreement shall be held or declared to be invalid or unenforceable for any reason by any court of competent jurisdiction, such provision shall be ineffective but shall not affect any other part of this Agreement. All provisions of this Agreement which by their nature should survive, shall survive the expiration or termination of this Agreement regardless of the reason or reasons therefor. This represents the entire agreement between the parties on the subject matter herein and supersedes any prior agreements or understandings regarding the same, whether oral or written, and any provision on a Company purchase order or other document purporting to supplement or vary the provisions hereof shall be void. No shrink-wrap, click-through or online terms and conditions or policies shall be binding upon Dynapt or modify the terms of this Agreement, notwithstanding the fact that such terms and conditions or policies may be affirmatively accepted by Dynapt as a condition to using any service.  No amendment or modification of this Agreement shall be made except by a writing signed by both parties.  If the Agreement is translated into a language other than English, the translation is for convenience only, and the English language version will govern. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which together shall constitute one and the same document.  The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.