This Master Services Agreement (this "Agreement") is entered into as of the date Customer accepts it under Section 2.3 (the "Effective Date") by and between:
Dovito® Business Solutions, Ltd., a Colorado limited liability company, with its principal place of business at 508 Main Street, Windsor, Colorado 80550 ("Dovito"); and
the customer identified in an Order or in a signed copy of this Agreement ("Customer").
Dovito and Customer are each a "Party" and together the "Parties."
Capitalized terms have the meanings below or where they are first defined in quotation marks.
1.1 "Affiliate" means an entity that controls, is controlled by, or is under common control with a Party, where "control" means ownership of more than 50 percent of the voting interests.
1.2 "AI Services" means any feature, tool, agent, workflow, or deliverable that uses a machine-learning or generative artificial intelligence model, whether operated by Dovito or a third party.
1.3 "Confidential Information" has the meaning in Section 11.1.
1.4 "Customer Data" means data, content, records, and information, including Personal Data, that Customer or its Users provide to Dovito, or that Dovito accesses in Customer Systems at Customer's direction, in connection with the Services.
1.5 "Customer Materials" means Customer Data, Customer's trademarks, and any documents, specifications, content, software, or other materials Customer provides to Dovito.
1.6 "Customer Systems" means every account, platform, application, database, device, and data source that Customer owns, licenses, or controls, or that Customer asks Dovito to access, including third-party platforms such as customer relationship management, accounting, field-service, and communications platforms.
1.7 "Deliverables" means the specific work product that an SOW identifies as a deliverable and that Dovito delivers to Customer under that SOW.
1.8 "Dovito Materials" means Dovito's pre-existing and independently developed methodologies (including the Systematics™ methodology), frameworks, software, code, libraries, prompts, skills, agent configurations, connectors, integrations, workflows, templates, documentation, tools, processes, and know-how, together with all improvements, enhancements, modifications, and derivative works of any of them, whenever and by whomever made, including those made while performing the Services.
1.9 "DPA" means Dovito's Data Processing Agreement published at dovito.com/legal/dpa, in the version in effect on the Effective Date or as later updated under its own terms.
1.10 "Fees" means the amounts payable to Dovito under this Agreement, including fees stated in an Order, time-and-materials charges, retainers, expenses, and Pass-Through Costs.
1.11 "Intellectual Property Rights" means all patents, copyrights, trademarks, trade secrets, database rights, moral rights, and other intellectual property and proprietary rights anywhere in the world.
1.12 "Order" means an SOW, Service Quote, engagement letter, proposal, or order form that references this Agreement and is signed or accepted under Section 2.3.
1.13 "Pass-Through Costs" means third-party costs Dovito incurs for Customer's account, including cloud hosting, AI model usage, telephony, messaging, software licenses, and domain fees.
1.14 "Personal Data" means information relating to an identified or identifiable individual, and any information defined as "personal data," "personal information," or a similar term under applicable data protection law.
1.15 "Platform" means Systematics, Dovito's software platform at app.dovito.com, including its web, mobile, and MCP interfaces.
1.16 "Services" means the consulting, business-systems, process documentation, software development, integration, automation, AI, training, coaching, fractional operations, support, and other services Dovito performs under an Order.
1.17 "SOW" means a statement of work that references this Agreement and describes Services, Deliverables, Fees, and related terms.
1.18 "Users" means Customer's employees, contractors, and other individuals whom Customer permits to use or receive the Services or Deliverables.
2.1 Framework. This Agreement sets the terms for every Order between the Parties. Each Order is a separate contract that incorporates this Agreement. This Agreement does not obligate either Party to enter into any Order.
2.2 Incorporated Documents. The following are incorporated into this Agreement: (a) each Order; (b) the DPA; (c) any Business Associate Agreement the Parties sign ("BAA"); and (d) the Acceptable Use Policy published at dovito.com/legal/aup, which applies to all Services, Deliverables, and hosted services, and, for Customer's use of the Platform, the Systematics Terms of Service published at dovito.com/legal/systematics-terms.
2.3 Formation. An Order becomes binding when both Parties sign it, including by electronic signature. If an Order states that it may be accepted by payment or by checking an acceptance box or clicking an acceptance button in an online checkout, Customer's doing so, or Customer's payment of the first invoice under that Order also constitutes acceptance of the Order and of the version of this Agreement the Order names. If an Order does not name a version, the version of this Agreement published at dovito.com/legal/msa on the date the Order is accepted applies. Later changes to the published version do not apply to an existing Order unless both Parties agree in writing.
2.4 Order of Precedence. If documents conflict, the following order controls: (a) a BAA, as to protected health information; (b) the DPA, as to the processing of Personal Data; (c) this Agreement; (d) the Order; and (e) any other incorporated document. An Order may override a specific section of this Agreement only if the Order expressly identifies the section being overridden and states that it overrides it, and then only for that Order. Sections 8 (Intellectual Property), 15 (Limitation of Liability), and 18 (Dispute Resolution) may be changed only by a written amendment signed by an officer of Dovito.
2.5 Signed Agreement Controls Over Website Terms. For Services covered by this Agreement, this Agreement replaces Dovito's website Terms and Conditions. Purchase orders, vendor portals, online terms, or other forms Customer issues do not add to or change this Agreement, even if Dovito signs, accepts, or clicks through them to receive payment.
2.6 Affiliates. A Customer Affiliate may enter into an Order under this Agreement by signing it, and is then treated as "Customer" for that Order. Customer is jointly responsible for its Affiliates' obligations.
3.1 Contents of an SOW. Each SOW will describe, as applicable, the Services, Deliverables, assumptions, Customer responsibilities, milestones, acceptance criteria, Fees, and payment schedule.
3.2 Change Orders. Either Party may request a change to an SOW. Dovito will respond with a written change order describing the effect on scope, schedule, and Fees. A change is binding only when both Parties sign the change order, or when Customer approves it in writing by email and Dovito confirms it. Until then, Dovito will continue to perform the SOW as written. Work Customer requests outside an SOW is billed at Dovito's then-current hourly rates unless a change order says otherwise.
3.3 Estimates. Unless an SOW expressly states a fixed fee, time and cost figures in an Order are good-faith estimates and not guarantees. Roadmaps, target dates, and timelines are planning references and not binding delivery commitments unless an SOW labels a date as a "Committed Date."
4.1 Standard of Performance. Dovito will perform the Services in a professional and workmanlike manner consistent with generally accepted industry standards for similar services.
4.2 Personnel. Dovito decides which personnel perform the Services and may replace personnel at any time. Dovito is responsible for its personnel's compliance with this Agreement.
4.3 Subcontractors. Dovito may use subcontractors, including individuals and firms outside the United States, to perform the Services. Dovito remains responsible for their performance and will bind them to confidentiality obligations at least as protective as those in this Agreement.
4.4 Methods and Tools. Dovito controls the manner and means of performing the Services, including the tools, software, and AI Services it uses, subject to Section 10.
4.5 Customer Policies. Dovito is bound only by Customer policies that are attached to an SOW. If complying with an attached policy increases Dovito's cost or effort, Dovito may request a change order.
4.6 Independent Contractor. Dovito is an independent contractor. Nothing in this Agreement creates a partnership, joint venture, employment, franchise, or fiduciary relationship. Except as stated in Section 5.3, neither Party is the agent of the other or may bind the other.
5.1 Cooperation. Customer will: (a) give Dovito timely access to Customer Systems, information, facilities, and personnel reasonably needed for the Services; (b) designate a project contact with authority to make decisions and approve changes; (c) respond to requests for information, decisions, and approvals within five business days or the time stated in the SOW; (d) review Deliverables under Section 7; (e) maintain current backups of Customer Data and Customer Systems before and during the Services; and (f) perform the responsibilities assigned to it in each SOW.
5.2 Dependencies and Delay. Dovito's performance depends on Customer performing its responsibilities and on the accuracy of Customer's information. If Customer, its vendors, or a third-party platform delays or prevents Dovito's performance, then: (a) Dovito is excused from resulting delays or failures; (b) affected dates move by at least the length of the delay; and (c) Customer will pay for additional time and costs caused by the delay at Dovito's then-current rates. If Customer's delay lasts more than 30 days, Dovito may invoice for all work performed to date and suspend the affected SOW.
5.3 Customer Systems and Authority. Customer represents and warrants that: (a) it owns or is authorized to use every Customer System and all Customer Data that it asks Dovito to access; (b) it has all rights and consents needed for Dovito to access, extract, export, migrate, integrate, automate, and process them as Customer directs; and (c) doing so does not breach any agreement with a third party, including platform terms of service, reseller agreements, and licenses, or violate any law. In accessing Customer Systems, Dovito acts as Customer's authorized agent at Customer's direction, and Customer is responsible for all activity under the credentials it provides. Customer, and not Dovito, is responsible for sending any termination, demand, or other notice to a third-party platform or vendor. Customer releases Dovito from claims arising from Dovito's authorized access to or handling of Customer Systems and Customer Data in performing the Services, except to the extent caused by Dovito's gross negligence, willful misconduct, or breach of Section 11 or 12.
5.4 Communications Compliance. Customer is the sender of every message, call, and communication sent through systems Dovito builds, configures, or operates for Customer, including SMS, voice, email, and automated campaigns. Customer is solely responsible for obtaining and documenting all consents, providing all disclosures, honoring opt-outs, registering campaigns and sender identities, and otherwise complying with the Telephone Consumer Protection Act, CAN-SPAM Act, Telemarketing Sales Rule, carrier requirements, and similar laws.
5.5 Credentials. Customer will provide credentials through a secure method Dovito designates, will create separate credentials for Dovito where the platform permits, and will revoke or rotate credentials at the end of the Services. Dovito will use credentials only to perform the Services and will protect them under Section 12.
5.6 Regulated Data. Customer will not provide Dovito with protected health information, payment card data, government identification numbers, biometric data, or other data subject to heightened legal requirements unless an SOW expressly covers that data or Customer submits it through a Platform feature designed to collect it, and, for protected health information, the Parties have signed a BAA. Dovito has no obligation to comply with laws specific to that data unless the SOW or BAA says so.
6.1 Fees. Customer will pay the Fees stated in each Order. Unless an Order says otherwise, time-and-materials Services are billed at Dovito's then-current hourly rates in increments of 30 minutes.
6.2 Invoices and Payment. Unless an Order says otherwise: (a) Dovito invoices fixed fees and retainers in advance, and time-and-materials Services, expenses, and Pass-Through Costs monthly in arrears; and (b) invoices are due within 15 days after the invoice date. Customer will pay by ACH, credit card, or another method Dovito accepts. Dovito may add a processing fee for card payments to the extent permitted by law. All Fees are in U.S. dollars.
6.3 Retainers and Deposits. Retainers and deposits are due before the period they cover. Unless an Order says otherwise, unused retainer hours expire at the end of the period and are not refundable.
6.4 Expenses and Pass-Through Costs. Customer will reimburse reasonable, pre-approved travel and out-of-pocket expenses at cost. Customer will pay Pass-Through Costs at cost, or as stated in the Order. Dovito may require Customer to keep a valid payment card on file for Pass-Through Costs and may charge them to it as incurred.
6.5 Taxes. Fees exclude taxes. Customer will pay all sales, use, value-added, withholding, and similar taxes, except taxes on Dovito's net income. If Customer must withhold tax, Customer will gross up the payment so Dovito receives the full invoiced amount.
6.6 Disputed Invoices. To dispute an invoice, Customer must notify Dovito in writing within 10 days after the invoice date, describing the disputed items in reasonable detail, and must pay the undisputed portion when due. The Parties will work in good faith to resolve the dispute within 30 days. Invoices not disputed within that period are final.
6.7 Late Payment. Overdue amounts accrue interest at 1.5 percent per month, or the maximum rate permitted by law if lower, from the due date until paid. Customer will reimburse Dovito's reasonable costs of collection, including attorneys' fees and collection agency fees.
6.8 Suspension for Non-Payment. If any undisputed amount is more than 10 days overdue, Dovito may, after 5 business days' written notice, suspend the Services, access to hosted Deliverables and the Platform, and delivery of work product until all overdue amounts are paid. Suspension does not relieve Customer of payment obligations, and affected dates move by the length of the suspension plus a reasonable restart period.
6.9 Rate Changes. Dovito may change its hourly rates on 60 days' written notice. A change does not apply to fixed fees in an existing SOW.
6.10 No Set-Off. Customer will not set off or withhold amounts owed to Dovito against amounts Customer claims Dovito owes it.
7.1 Review Period. Customer will review each Deliverable within 10 business days after delivery (the "Review Period") against the acceptance criteria in the SOW, or if there are none, against the SOW's written description.
7.2 Nonconformity Notice. To reject a Deliverable, Customer must give Dovito, within the Review Period, a written notice that identifies each specific, reproducible way in which the Deliverable fails to conform to the SOW. Dovito will correct the nonconformity and redeliver, and a new Review Period will apply only to the corrected items.
7.3 Deemed Acceptance. A Deliverable is accepted on the earliest of: (a) Customer's written acceptance; (b) the end of the Review Period without a notice that meets Section 7.2; or (c) Customer's use of the Deliverable in live operations. Requests for changes that are not nonconformities are handled as change orders.
8.1 Customer Materials. As between the Parties, Customer owns all rights in Customer Materials. Customer grants Dovito and its subcontractors a non-exclusive, worldwide, royalty-free license during the term of this Agreement to use, copy, modify, and process Customer Materials as needed to perform the Services and exercise Dovito's rights under this Agreement.
8.2 Dovito Materials. Dovito and its licensors own all rights in the Dovito Materials. Nothing in this Agreement or any Order transfers ownership of Dovito Materials to Customer, including where Dovito Materials are incorporated into a Deliverable or improved during the Services. To the extent Customer or its personnel acquire any right in an improvement to or derivative of Dovito Materials, Customer assigns that right to Dovito.
8.3 Deliverables. Unless an SOW designates a Deliverable as an "Assigned Deliverable," Dovito owns each Deliverable, and upon Customer's payment in full of all Fees for the Deliverable, Dovito grants Customer a non-exclusive, perpetual, worldwide, non-transferable (except under Section 20.2) license to use, copy, and modify the Deliverable for Customer's internal business purposes.
8.4 Assigned Deliverables. For each Assigned Deliverable, upon Customer's payment in full of all Fees for it, Dovito assigns to Customer Dovito's rights in the Assigned Deliverable, excluding all Dovito Materials and Third-Party Components incorporated in it. Until payment in full, Dovito retains all rights and Customer's use is permitted only as a revocable license during the term of the applicable SOW.
8.5 License to Embedded Dovito Materials. To the extent Dovito Materials are incorporated into a paid Deliverable, Dovito grants Customer a non-exclusive, perpetual, worldwide, non-transferable (except under Section 20.2) license to use those Dovito Materials solely as part of that Deliverable and for Customer's internal business purposes. Customer will not extract, separate, or distribute Dovito Materials independently of the Deliverable.
8.6 Third-Party Components. Deliverables may include or depend on open-source software, third-party software, APIs, platforms, and AI models ("Third-Party Components"). Third-Party Components are licensed under their own terms, which Customer will comply with. Dovito does not grant, and cannot grant, rights in Third-Party Components beyond those their licensors provide, and Customer is responsible for maintaining its own accounts and subscriptions to them.
8.7 Restrictions. Except as this Agreement expressly allows, Customer will not: (a) sell, sublicense, resell, or commercialize Deliverables or Dovito Materials, or use them to provide services to third parties; (b) reverse engineer, decompile, or attempt to derive source code for any Dovito Materials provided only in object code or hosted form; (c) use Dovito Materials or Deliverables to build a competing product or service; or (d) remove proprietary notices.
8.8 Learnings. Dovito may use, for any purpose, the general knowledge, skills, experience, ideas, concepts, techniques, patterns, and know-how that its personnel gain or retain in their unaided memory while performing the Services, including to provide similar or competing services and products to others. This Section does not permit Dovito to disclose Customer's Confidential Information or Customer Data, or to reproduce Customer's documents.
8.9 Aggregated Data. Dovito may collect and use technical, usage, and performance data relating to the Services and Deliverables, and may create de-identified and aggregated data from Customer Data, to operate, secure, benchmark, and improve its services and products, provided the data does not identify Customer or any individual. Dovito owns this data.
8.10 Feedback. Customer grants Dovito a perpetual, irrevocable, royalty-free, worldwide license to use and incorporate any suggestions, ideas, or feedback Customer provides about Dovito's services or products, without obligation to Customer.
8.11 Reservation of Rights. Each Party reserves all rights not expressly granted. No license is implied.
9.1 Platform Terms. Customer's and its Users' access to the Platform, including any Platform access included in an SOW, is governed by the Systematics Terms of Service and Acceptable Use Policy. If they conflict with this Agreement, this Agreement controls as between the Parties.
9.2 Hosted Deliverables. If an SOW provides that Dovito will host, operate, or maintain a Deliverable, Dovito will do so for the period and at the service level stated in the SOW. Unless the SOW states an uptime commitment, hosted Deliverables are provided without a service-level guarantee. When hosting ends, Dovito's only obligations are those in Section 17.5.
10.1 Use of AI. Customer acknowledges that Dovito uses AI Services, including third-party models, in performing the Services and in its products, including for research, analysis, drafting, coding, testing, and automation, and that Fees for time-based Services cover both human and AI-assisted work. Dovito's personnel direct and review this work.
10.2 Nature of AI Output. AI output is generated probabilistically and may be inaccurate, incomplete, inconsistent, or similar to output generated for others. Customer is responsible for reviewing AI output and for approving any action before relying on it, including before relying on it for legal, financial, tax, accounting, medical, employment, or safety decisions.
10.3 Agent Actions. Where Dovito builds or configures agents, automations, or workflows that can take actions in Customer Systems, Customer decides which actions are enabled, which require approval, and who may approve them. Customer is responsible for the actions it or its Users authorize or enable, including automated and scheduled actions, and for monitoring them.
10.4 No Training. Dovito will not use Customer Data to train or fine-tune AI models that are made available to anyone other than Customer, and will use Customer Data with third-party AI providers only under commercial terms that prohibit the provider from training its models on that data. This does not limit Section 8.9.
10.5 Third-Party Providers. Dovito does not control third-party AI providers. Dovito is not responsible for their availability, performance, pricing, output, policy changes, or discontinuation, and may change providers or models at any time, provided the replacement meets Section 10.4.
11.1 Definition. "Confidential Information" means non-public information a Party ("Discloser") discloses to the other ("Recipient"), in any form, that is marked confidential or that a reasonable person would understand to be confidential given its nature and the circumstances of disclosure. Dovito's Confidential Information includes the Dovito Materials, its pricing, and the terms of this Agreement. Customer's Confidential Information includes Customer Data. Confidential Information includes the portions of the Recipient's notes, analyses, and compilations that contain the Discloser's Confidential Information, but not the Recipient's own methods, analyses, or conclusions apart from that information.
11.2 Exclusions. Confidential Information does not include information that the Recipient can show: (a) is or becomes public without the Recipient's breach; (b) was known to the Recipient without confidentiality obligation before receiving it; (c) is received from a third party without breach of an obligation to the Discloser; or (d) is independently developed by the Recipient without use of the Discloser's Confidential Information. These exclusions do not apply to Personal Data, which remains subject to Section 12 and the DPA.
11.3 Obligations. The Recipient will: (a) use Confidential Information only to evaluate, negotiate, and perform the business relationship and to exercise its rights under this Agreement; (b) disclose it only to its and its Affiliates' employees, contractors, subcontractors, and professional advisors who need to know it for those purposes and are bound by confidentiality obligations at least as protective as this Section; and (c) protect it with at least reasonable care, and no less care than it uses for its own similar information. The Recipient is responsible for any breach by those to whom it discloses.
11.4 Compelled Disclosure. The Recipient may disclose Confidential Information when required by law, subpoena, or court order, if it gives the Discloser prompt notice where legally permitted, reasonably cooperates with the Discloser's efforts to obtain protective treatment at the Discloser's expense, and discloses only what is legally required.
11.5 Non-Circumvention. During the term of this Agreement and for 12 months after, Customer will not use Dovito's Confidential Information to contact Dovito's vendors, partners, or subcontractors that Dovito identified to Customer in order to obtain from them, directly, services of the kind Dovito provides under this Agreement.
11.6 Return and Destruction. On the Discloser's written request after termination, the Recipient will return or destroy the Discloser's Confidential Information and confirm in writing. The Recipient may keep copies required by law, contained in routine backups, or needed to enforce its rights, subject to continuing confidentiality. Customer Data is returned and deleted under Section 12.5.
11.7 Duration. The obligations in this Section apply from the first disclosure, including disclosures before the Effective Date in connection with evaluating the relationship, and continue for three years after termination of this Agreement, and for trade secrets and Customer Data, for as long as they remain trade secrets or are held by the Recipient.
11.8 Relationship to Other NDAs. This Section supersedes any prior nondisclosure agreement between the Parties for disclosures made after the Effective Date, including any clause in a prior agreement that assigns improvements or developments to a Discloser. Disclosures made under a prior agreement remain protected by that agreement's confidentiality obligations.
11.9 Equitable Relief. Unauthorized use or disclosure of Confidential Information may cause irreparable harm. The Discloser may seek injunctive relief under Section 18.5 without posting bond, in addition to other remedies.
12.1 DPA. The DPA governs Dovito's processing of Personal Data in Customer Data on Customer's behalf. Customer is the controller or business, and Dovito is the processor or service provider, for that Personal Data.
12.2 Security. Dovito will maintain reasonable administrative, technical, and physical safeguards designed to protect Customer Data, as described in the DPA. Customer is responsible for the security of Customer Systems, for its Users' credentials, and for the configuration choices it makes.
12.3 Security Incidents. Dovito will notify Customer without undue delay, and in any event within 72 hours after confirming a breach of security that leads to unauthorized access to or disclosure of Customer Data in Dovito's possession, and will provide the information and assistance described in the DPA.
12.4 Customer Responsibilities. Customer will provide all notices and obtain all consents and lawful bases required for Dovito to process Customer Data as contemplated by this Agreement, and will not instruct Dovito to process Customer Data in violation of law.
12.5 Return and Deletion. Within 30 days after termination of the applicable Order, and on Customer's written request made during that period, Dovito will make Customer Data in its possession available for export in a standard format. Dovito will then delete Customer Data within 90 days after termination, except copies in backups (which will be overwritten in the ordinary course) and copies Dovito must keep by law. Customer Data that lives in Customer Systems remains Customer's responsibility.
12.6 Suspension for Security or Unlawful Use. Dovito may suspend any Services, hosted Deliverables, or Platform access immediately, with notice as soon as practicable, if it reasonably believes that continuing would create a security risk to Dovito, Customer, or others, would violate law or the Acceptable Use Policy, or would expose Dovito to liability to a third party. Dovito will limit the suspension to what is reasonably necessary and restore performance once the cause is resolved, and affected dates move by the length of the suspension.
13.1 Covenant. During the term of this Agreement and for 12 months after, Customer will not, directly or through others, solicit for employment or engagement, or hire or engage, any employee or contractor of Dovito who performed Services for Customer, without Dovito's prior written consent. General advertisements not targeted at Dovito personnel are not solicitation.
13.2 Placement Fee. If Customer hires or engages such a person in breach of Section 13.1, Customer will pay Dovito, as liquidated damages and not a penalty, a placement fee equal to 25 percent of the person's first-year annualized compensation or fees. The Parties agree that Dovito's actual damages from losing trained personnel would be difficult to determine and that this amount is a reasonable estimate of them.
14.1 Mutual. Each Party represents and warrants that it is duly organized and in good standing, has full authority to enter into this Agreement, and that the individual signing for it is authorized to bind it.
14.2 Service Warranty. Dovito warrants that, for 30 days after delivery of each Deliverable or performance of each Service (the "Warranty Period"), the Services will be performed in a professional and workmanlike manner and the Deliverable will conform in all material respects to the SOW.
14.3 Exclusive Remedy. If Customer notifies Dovito in writing of a breach of Section 14.2 during the Warranty Period, Dovito will re-perform the nonconforming Services or correct the Deliverable. If Dovito cannot do so within a reasonable time, Customer may terminate the affected SOW and receive a refund of the Fees paid for the nonconforming Services or Deliverable. This is Customer's sole and exclusive remedy, and Dovito's sole obligation, for breach of Section 14.2.
14.4 Warranty Exclusions. Section 14.2 does not apply to problems caused by: (a) changes to a Deliverable not made by Dovito; (b) Customer Materials, Customer Systems, or Customer's instructions or specifications; (c) Third-Party Components, third-party platforms, or changes to them, including API changes; (d) use not in accordance with Dovito's documentation or instructions; (e) AI output, subject to Section 10; or (f) events after the Warranty Period.
14.5 Customer Warranties. Customer represents and warrants that Customer Materials, and Dovito's use of them as permitted by this Agreement, do not infringe or misappropriate any third-party right or violate any law, and that Customer's representations in Section 5.3 are true.
14.6 No Professional Advice. Dovito's Services, Deliverables, reports, audits, assessments, recommendations, and products are business and technical guidance. They are not legal, tax, accounting, financial, medical, insurance, or regulatory compliance advice, and Dovito is not acting as Customer's attorney, accountant, or other licensed professional. Customer is responsible for confirming those matters with its own licensed advisors. Audits and assessments reflect the systems, information, and access available at the time and may not identify every issue, defect, or vulnerability.
14.7 No Guaranteed Results. Dovito does not guarantee any particular business outcome, including revenue, savings, time savings, efficiency gains, search rankings, or return on investment. Any projections Dovito provides are estimates.
14.8 Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 14, THE SERVICES, DELIVERABLES, DOVITO MATERIALS, AI SERVICES, AND THIRD-PARTY COMPONENTS ARE PROVIDED "AS IS," AND DOVITO DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. DOVITO DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT ALL ERRORS WILL BE CORRECTED.
15.1 Excluded Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, REVENUE, SAVINGS, OR GOODWILL, LOSS OR CORRUPTION OF DATA, COST OF SUBSTITUTE SERVICES, OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, EVEN IF ADVISED OF THEIR POSSIBILITY.
15.2 General Cap. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY'S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ALL ORDERS WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO DOVITO UNDER THIS AGREEMENT IN THE 12 MONTHS BEFORE THE FIRST EVENT GIVING RISE TO LIABILITY (THE "GENERAL CAP").
15.3 Data Cap. For liability arising from a Party's breach of Section 11 (Confidentiality) or Section 12 (Data Protection and Security) or the DPA, other than willful misconduct, each Party's total liability will not exceed two times the General Cap (the "Data Cap"). For clarity, Dovito's access to, storage of, and handling of Customer Data and credentials in the ordinary course of performing the Services, including any negligent act or omission, is subject to the Data Cap.
15.4 IP Indemnity Cap. Dovito's total liability under Section 16.1 will not exceed three times the General Cap.
15.5 Exceptions. Sections 15.1 through 15.4 do not limit: (a) Customer's obligation to pay Fees; (b) a Party's liability for fraud, gross negligence, or willful misconduct; (c) Customer's liability for breach of Section 8.7 or infringement or misappropriation of Dovito's Intellectual Property Rights; (d) Customer's indemnity obligations under Section 16.2; or (e) liability that cannot be limited by law.
15.6 Aggregate and Non-Cumulative. The caps are aggregate for all claims and are not cumulative. Amounts paid under the Data Cap or IP Indemnity Cap count toward the General Cap. Multiple claims do not enlarge any cap.
15.7 Basis of the Bargain. The Parties agree that the Fees reflect the allocation of risk in Sections 14, 15, and 16, which are essential elements of the bargain, and that these limitations apply even if a limited remedy fails of its essential purpose.
15.8 Personnel. Customer will bring any claim relating to the Services only against Dovito, and not against Dovito's owners, officers, employees, or subcontractors individually, except for their fraud or willful misconduct.
16.1 By Dovito. Dovito will defend Customer against any third-party claim alleging that a Deliverable, as delivered by Dovito and used by Customer in accordance with this Agreement, infringes a United States copyright or misappropriates a trade secret, and will pay damages and costs finally awarded against Customer or agreed in a settlement Dovito approves.
(a) Exclusions. Dovito has no obligation for claims arising from: (i) Customer Materials, or Customer's specifications, designs, or instructions; (ii) modifications not made by Dovito; (iii) combination with products, data, or processes Dovito did not provide, if the claim would not have arisen without the combination; (iv) Third-Party Components, third-party platforms, or AI output; (v) use after Dovito has provided a non-infringing alternative; (vi) use in breach of this Agreement; or (vii) Deliverables provided free of charge.
(b) Remedies. If a Deliverable is, or in Dovito's opinion is likely to become, the subject of an infringement claim, Dovito may at its option and expense: (i) modify it to be non-infringing without material loss of function; (ii) obtain the right for Customer to continue using it; or (iii) if neither is commercially reasonable, require Customer to stop using it and refund the Fees paid for it, less straight-line depreciation over three years from delivery.
(c) Sole Remedy. This Section 16.1 states Dovito's sole liability and Customer's exclusive remedy for any claim of infringement or misappropriation.
16.2 By Customer. Customer will defend Dovito, its Affiliates, and their owners, officers, employees, and subcontractors against any third-party claim, and will pay all resulting damages, settlements, fines, penalties, and reasonable costs and attorneys' fees, arising out of or relating to: (a) Customer Materials, including any claim that they infringe or violate privacy or other rights; (b) Customer Systems, including any claim by a current or former platform, vendor, reseller, or licensor relating to access, export, extraction, migration, automation, or termination performed at Customer's direction; (c) messages and communications described in Section 5.4; (d) actions taken by agents, automations, or workflows that Customer or its Users authorized or enabled; (e) Customer's or its Users' use of Services, Deliverables, or AI output, including decisions made in reliance on them; (f) Customer's breach of Section 5.3, 5.6, 8.7, or 12.4; or (g) Customer's violation of law.
16.3 Procedure. The indemnified Party will: (a) notify the indemnifying Party promptly in writing of the claim, although delay excuses the indemnifying Party only to the extent it is prejudiced; (b) give the indemnifying Party sole control of the defense and settlement, except that no settlement may admit fault by, or impose non-monetary obligations on, the indemnified Party without its consent, which it will not unreasonably withhold; and (c) cooperate reasonably at the indemnifying Party's expense. The indemnified Party may participate with its own counsel at its own expense.
17.1 Term. This Agreement begins on the Effective Date and continues until terminated under this Section. If no Order is in effect for 12 consecutive months, this Agreement ends automatically.
17.2 Order Term. Each Order continues for the term stated in it, or if none, until the Services are complete. Unless an Order says otherwise, monthly retainer and recurring Services renew automatically for successive one-month periods until either Party gives 30 days' written notice of non-renewal.
17.3 Termination for Convenience. Either Party may terminate this Agreement or any Order for convenience on 30 days' written notice, unless the Order states a minimum term or a different notice period. If Customer terminates for convenience, Customer will pay: (a) all Fees for Services performed and expenses incurred through the effective date of termination; (b) any retainer or minimum fee for the notice period; (c) non-cancellable Pass-Through Costs and commitments made for Customer; and (d) for a fixed-fee SOW, the portion of the fixed fee attributable to work performed, including work in progress.
17.4 Termination for Cause. Either Party may terminate this Agreement or an affected Order on written notice if the other Party: (a) materially breaches it and does not cure within 30 days after written notice describing the breach, or within 10 days for non-payment; or (b) becomes insolvent, makes a general assignment for the benefit of creditors, has a receiver appointed, or becomes subject to bankruptcy proceedings that are not dismissed within 60 days. Dovito may also terminate immediately on notice if Customer breaches Section 5.3, 5.4, or 8.7 or uses the Services for unlawful purposes.
17.5 Effect of Termination. On termination of this Agreement or an Order: (a) all unpaid Fees for work performed become immediately due; (b) Dovito will deliver completed Deliverables and work in progress for which Customer has paid; (c) licenses in Section 8 continue only for Deliverables paid in full, and Customer will stop using any Deliverable or Dovito Materials not paid in full; (d) access to hosted Deliverables and the Platform ends unless the Parties agree otherwise; (e) Customer Data is handled under Section 12.5; and (f) if Customer requests, Dovito will provide reasonable transition assistance at its then-current rates, paid in advance. Termination of an Order does not terminate other Orders or this Agreement.
17.6 Survival. Sections 1, 5.3, 5.4, 6 (for amounts owed), 8, 10.2, 10.3, 11, 12.2 through 12.4 (for as long as Dovito holds Customer Data), 12.5, 13, 14.5 through 14.8, 15, 16, 17.5, 17.6, 18, 19, and 20, and any other terms that by their nature should survive, survive termination.
18.1 Executive Negotiation. A Party with a dispute arising out of or relating to this Agreement, including its formation, interpretation, performance, breach, termination, or validity (a "Dispute"), will give the other Party written notice describing it. Senior representatives of each Party with authority to settle will meet, in person or by video, within 15 days after the notice.
18.2 Mediation. If the Dispute is not resolved within 30 days after the notice, either Party may submit it to non-binding mediation administered by the American Arbitration Association ("AAA") under its Commercial Mediation Procedures, or by another mediator the Parties agree on, in Weld County, Colorado, or by video conference. The Parties will share the mediator's fees equally and bear their own costs. Mediation is a condition to starting arbitration, except under Section 18.5.
18.3 Binding Arbitration. Any Dispute not resolved within 60 days after the notice will be resolved by final and binding arbitration administered by the AAA under its Commercial Arbitration Rules, including, where applicable, its Procedures for Large, Complex Commercial Disputes. The arbitration will be conducted in English, before a single arbitrator, and seated in Weld County, Colorado; hearings may be held by video conference by agreement. The arbitrator will apply the substantive law of Colorado and the limitations in this Agreement, will have no authority to award damages excluded by Section 15, and will issue a reasoned written award. The Federal Arbitration Act governs this Section 18. Judgment on the award may be entered in any court with jurisdiction. The arbitrator, and not a court, will decide questions of arbitrability, except that a court will decide the validity and scope of Section 18.6.
18.4 Confidentiality of Proceedings. The Parties will keep the existence, content, and result of any mediation or arbitration confidential, except as needed to enforce an award or as required by law.
18.5 Exceptions. Either Party may: (a) bring an individual action in small claims court for a claim within that court's jurisdiction; (b) seek a temporary restraining order, preliminary injunction, or other equitable relief in any court of competent jurisdiction to protect its Confidential Information or Intellectual Property Rights, or to prevent irreparable harm, pending arbitration; and (c) bring an action in the courts described in Section 19 to collect undisputed Fees. Seeking this relief does not waive the right to arbitrate.
18.6 Jury and Class Waiver. EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY JURY, AND ANY RIGHT TO BRING OR PARTICIPATE IN A CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING, IN ANY DISPUTE. Disputes will be resolved only on an individual basis.
18.7 Time Limit. To the extent permitted by law, any claim arising out of or relating to this Agreement must be brought within one year after the claiming Party knew or reasonably should have known of the facts giving rise to it, except claims for non-payment of Fees and for infringement or misappropriation of Intellectual Property Rights.
18.8 Fees and Costs. In any arbitration or court action arising out of or relating to this Agreement, the prevailing Party is entitled to recover its reasonable attorneys' fees, expert fees, arbitration and administrative fees, and costs. The arbitrator or court will determine which Party prevailed.
18.9 Continued Performance. Pending resolution of a Dispute, each Party will continue to perform its undisputed obligations, subject to Dovito's rights under Sections 6.8 and 17.
This Agreement is governed by the laws of the State of Colorado, without regard to conflict-of-laws rules, and by the Federal Arbitration Act as to Section 18. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply. For any matter permitted in court under Section 18, the Parties submit to the exclusive jurisdiction of the state courts located in Weld County, Colorado, and the United States District Court for the District of Colorado, and waive any objection based on venue or inconvenient forum, except that a Party may seek relief under Section 18.5(b) in any court of competent jurisdiction.
20.1 Force Majeure. Neither Party is liable for delay or failure to perform caused by events beyond its reasonable control, including natural disasters, epidemics, war, terrorism, civil unrest, government action, labor disputes not involving the affected Party's own workforce, utility or internet failures, cyberattacks not caused by the affected Party's failure to maintain reasonable safeguards, and outages or changes of third-party platforms, hosting providers, or AI providers. The affected Party will notify the other and use reasonable efforts to resume performance. This Section does not excuse payment obligations. If a force majeure event prevents a Party's material performance for more than 30 consecutive days, either Party may terminate the affected Order on written notice, and Customer will pay for work performed through termination.
20.2 Assignment. Neither Party may assign or transfer this Agreement or any Order without the other Party's prior written consent, which will not be unreasonably withheld, except that either Party may assign this Agreement in full, without consent, to an Affiliate or to a successor in a merger, acquisition, reorganization, or sale of all or substantially all of its assets or the business to which this Agreement relates, on written notice. Dovito may assign its right to receive payment. Any other attempted assignment is void. This Agreement binds and benefits the Parties' permitted successors and assigns.
20.3 Notices. Notices must be in writing and delivered by hand, nationally recognized courier, certified mail, or email. Notices to Dovito go to 508 Main Street, Windsor, Colorado 80550, and legal@dovito.com. Notices to Customer go to the address and email in the Order. A notice is effective on receipt, or for email, on the next business day after sending if no bounce-back is received. Notices of breach, termination, or a Dispute sent by email must also be sent by another method. Routine operational communications may be sent by email or through the Platform.
20.4 Publicity. Dovito may identify Customer as a customer, including by name and logo, on its website and in marketing materials. Dovito will not publish a case study, testimonial, or specific results about Customer without Customer's prior approval, which may be given by email. Customer may withdraw permission for future use by written notice.
20.5 Compliance with Laws. Each Party will comply with laws applicable to its performance under this Agreement, including export control and sanctions laws. Customer will not use the Services or Deliverables in any country or for any person subject to U.S. embargo or sanctions.
20.6 Insurance. Dovito maintains insurance coverage in types and amounts that it considers commercially reasonable for its business. On Customer's written request, Dovito will provide a certificate of insurance. Dovito's insurance does not expand its liability under this Agreement.
20.7 Entire Agreement. This Agreement, including all incorporated documents, is the entire agreement between the Parties about its subject matter and supersedes all prior and contemporaneous agreements, proposals, and representations, written or oral, about that subject matter. Each Party acknowledges that it has not relied on any statement or representation not expressly set out in this Agreement.
20.8 Amendment and Waiver. An amendment must be in writing and signed by authorized representatives of both Parties, except as stated in Section 3.2. A waiver must be in writing and signed by the waiving Party. Failure or delay in exercising a right is not a waiver.
20.9 Severability. If any provision is held invalid or unenforceable, it will be enforced to the maximum extent permissible and reformed to the minimum extent necessary to make it enforceable, and the remaining provisions remain in effect. If Section 18.6's class waiver is found unenforceable as to a Dispute, that Dispute will proceed in court under Section 19 and not in arbitration.
20.10 Interpretation. Headings are for convenience only. "Including" means "including without limitation." "Days" means calendar days unless "business days" is stated. The Parties drafted this Agreement jointly with the opportunity to consult counsel, and no rule of construction against the drafter applies.
20.11 No Third-Party Beneficiaries. Except for the persons protected under Sections 15.8 and 16.2, there are no third-party beneficiaries of this Agreement.
20.12 Remedies Cumulative. Except where this Agreement states that a remedy is exclusive, the Parties' rights and remedies are cumulative.
20.13 Counterparts and Electronic Signatures. This Agreement and any Order may be signed in counterparts and by electronic signature, each of which is an original and all of which are one instrument. Electronic records and signatures have the same effect as originals under the Electronic Signatures in Global and National Commerce Act and the Colorado Uniform Electronic Transactions Act.
20.14 Further Assurances. Each Party will sign any documents and take any actions reasonably requested to give effect to Section 8.
Customer accepts this Agreement by signing an Order or a copy of this Agreement that references it, or by paying an invoice that names this version, as described in Section 2.3. To request a copy for signature, email legal@dovito.com.
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