This Services Agreement (the “Agreement”) sets forth terms under which MagicSoft, Inc. a Washington Corporation (“Company”) located at 600 4th Ave, Seattle, WA 98104 shall provide services to Daltech, Inc., a Washington Corporation (the “Client”) located at 701 1st St, Kirkland, WA 98033. This Agreement is effective as of February 15, 2021 (“Effective Date”).



A. STANDARD SOFTWARE AND SERVICES AGREEMENT

1. Deliverables. Company shall provide Client with software, technical support, product management, development, and testing services (“Services”) to the Client as described on one or more Statements of Work signed by Company and Client that reference this Agreement (“SOW” or “Statement of Work”). Company shall perform Services in a prompt manner and have the final product or service (“Deliverable”) ready for Client no later than the due date specified in the applicable SOW (“Completion Date”). This due date is subject to change in accordance with the Change Order process defined in the applicable SOW. Client shall assist Company by promptly providing all information requests known or available and relevant to the Services in a timely manner.

2. Onsite Services.

   2.1 Onsite visits will be charged on a daily basis (minimum 8 hours).

   2.2 Time and expenses will be charged based on actuals unless otherwise described in an Order Form or accompanying SOW.

   2.3 All work will be executed during regular working hours Monday-Friday 0800-1900. For work outside of these hours on weekdays, Company will charge one hundred percent (100%) of the regular hourly rate and two hundred percent (200%) for Saturdays, Sundays and public holidays applicable to Company.

   2.4 If scheduled onsite visits are cancelled less than ten (10) working days in advance of the scheduled date, Company is entitled to charge fifty percent (50%) of the expected revenue associated with this onsite activity as compensation.

3. Deposit. An initial payment (the “Deposit”) of One Hundred Thousand Dollars ($100,000) is due to Company at signing.

4. Dates of Performance. Company will begin performing services upon receipt of signed Agreement and Deposit. Unless terminated as provided in this Agreement, Company will complete Services by the Completion Date. Deliverable shall be furnished to Client within 72 hours of final payment for the Services.

5. Change in Services. If Client desires changes to the SOW, Client shall submit to Company a written request in accordance with the change order process defined in the applicable SOW. The parties may execute additional Statements of Work describing Services, which will become part of this Agreement upon execution by Company and the Client. If additional SOW are executed, then Client shall pay Company for all services performed prior to the additional SOW before Company begins work on the new SOW.

6. Termination. This agreement shall continue in force and effect until May 31, 2025 and shall be automatically renewed for successive one-year terms annually thereafter unless notice of non-renewal is given by the Company or the Client before the end of the term. Company shall have the right to modify, reject, or terminate any SOW and any related work in process with five days written notice to Client. In the event Company terminates the SOW prior to completion of Services, the Client shall pay Company the fees due under the SOW with respect to Services completed as of the date of termination. Payment for completed work will be deducted from the deposit. Company will retain the non-refundable 50% of the Deposit and return any unearned portion exceeding 50% of the Deposit. Any amount due for services performed by Company above the deposit will be billed to Client and Client shall promptly pay.

7. Payment. In exchange for Company’s Services under this Agreement, the Client shall pay Company the contract price and deposit set forth above. Company will submit a final invoice to Client for all services rendered by the Services Completion Date and Client shall promptly pay. Client is restricted from using any form of the Deliverable until final payment is received. Client shall pay travel and other expenses incurred by Company in performing the Services. In the event of a good faith dispute with regard to an item appearing on an invoice, Company shall have the right to withhold the Deliverable while the parties attempt to resolve the disputes.

8. Representations and Warranties.

   8.1 Company’s Representation. Company represents that any materials used in the Deliverable will not knowingly (a) infringe on the intellectual property rights of any third party or any rights of publicity or privacy or (b) violate any law, statute, ordinance or regulation.

   8.2 Client’s Representation. Client represents that any materials provided to Company by Client for incorporation into the Deliverable will not (a) infringe on the intellectual property rights of any third party or any rights of publicity or privacy or (b) violate any law, statute, ordinance or regulation.

   8.3 Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT AND ANY SOW, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

9. Indemnification. Client will defend, indemnify and hold Company harmless from any and all claims, losses, liabilities, damages, expenses and costs (including attorneys’ fees and court costs) arising from or relating to any claims regarding elements or materials provided by Client and incorporated into the Deliverable. Additionally, Client will defend, indemnify and hold Company harmless from any and all claims, losses, liabilities, damages, expenses and costs (including attorneys’ fees and court costs) arising from or relating to any claims regarding Client’s unauthorized use of any music, images, or other materials comprising the Deliverable.

10. Limitation of Liability. COMPANY WILL NOT BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. Compliance with Laws. Each party shall perform all of its obligations under this Agreement in compliance at all times with all foreign, federal, state and local statutes, orders and regulations, including those relating to privacy and data protection.

12. General Provisions.

   12.1 Insurance Company will maintain during the entire Term of this Agreement, at its own expense, the types of insurance coverage specified below, on standard policy forms and with insurance companies with at least an A.M. Best Rating of A-VII authorized to do business in the jurisdictions where the Company services are to be performed.

      (a) Workers’ Compensation insurance prescribed by applicable local law and Employers Liability insurance with limits not less than $1,000,000 per accident/per employee. This policy shall include a waiver of subrogation against Client.

      (b) Business Automobile Liability covering all vehicles that Company owns, hires or leases with a limit of no less than $1,000,000 (combined single limit for bodily injury and property damage) for each accident.

      (c) Commercial General Liability insurance including Contractual Liability Coverage, with coverage for products liability, completed operations, property damage and bodily injury, including death, with an aggregate limit of no less than $2,000,000. This policy shall name Client as an additional insured with respect to the provision of services provided under this Agreement. This policy shall include a waiver of subrogation against Client.

      (d) Technology Professional Liability Errors & Omissions policy (which includes Cyber Risk coverage and Computer Security and Privacy Liability coverage) with a limit of no less than $5,000,000 per occurrence and in the aggregate.

      (e) Crime policy with a limit of no less than $5,000,000 per occurrence and in the aggregate.

      (f) Excess Liability/Umbrella coverage with a limit of no less than $9,000,000 per occurrence and in the aggregate (such limit may be achieved through increase of limits in underlying policies to reach the level of coverage shown here). This policy shall name Client as an additional insured with respect to the provision of services provided under this Agreement. This policy shall include a waiver of subrogation against Client.

   Upon Client's request, Company agrees to deliver to Client a certificate(s) of insurance evidencing the coverage specified in this Section. Such certificate(s) will contain a thirty (30) day prior notice of cancellation provision. Company will be solely responsible for any deductible or self-insurance retentions. Such insurance coverage will be primary and any other valid insurance existing will be in excess of such primary insurance policies. The required insurance coverage and limits of liability set forth above shall not be construed as a limitation or waiver of any potential liability of satisfaction of any indemnification/hold harmless obligation of Company.

12.2 Intellectual Property.

      12.2.1 Preexisting Intellectual Property. Except for rights expressly granted under this agreement, each party will retain exclusive interest in and ownership of its Intellectual Property developed before this agreement or developed outside the scope of this agreement.

      12.2.2 Independently Developed Intellectual Property. Any Intellectual Property developed solely by a party under this agreement without the participation of the other party is and will remain the sole and exclusive property of the developing party.

   12.3

Section label: Services Agreement