Darcy Capital

THESE TERMS AND CONDITIONS (this “Agreement”) are entered into as of the 4th day of February, 2020 (the “Effective Date”), by and between Beta Company, LLC, a Delaware limited liability company, hereinafter referred to as “Company,” and Prophet Labs, LLC, a Florida limited liability company, hereinafter referred to as “Consultant.”

BACKGROUND

Company operates a senior living facility (the “Facility”).   Consultant provides certain artificial intelligence software, services, and support, including web-based applications and software, for facility management, electronic recordkeeping and patient records management.  In addition, Consultant provides certain services for management and operation of electronic inventory located at the Facility and point of sale processes for the Facility’s operations.   Company has requested that Consultant provide these services at the Facility, all in accordance with and subject to the terms and conditions of this Agreement.

AGREEMENT

NOW THEREFORE, the foregoing recitals are hereby incorporated as if fully set forth hereinafter, and in consideration of the mutual covenants and provisions contained herein, the parties hereto agree as follows:

1.0       SCOPE OF SERVICES

1.1       From time to time upon the written request and direction of Company as hereinafter provided, Consultant shall provide to Company the services set forth on Exhibit A and such other related incidental services as may be requested from time to time by the Company (collectively and individually referred to herein as the “Services”).  Services may be added to deleted from Exhibit A from time to time by mutual agreement of the Company and Consultant.

1.2       Notwithstanding the foregoing, Company and Consultant both acknowledge and agree that Consultant is routinely engaged in developing new applications and improving the Services.  Consequently Company agrees to permit Consultant to utilize new processes and procedures from time to time in connection with the Services, provided that such implementation does not adversely impact the operations of the Facility and the wellbeing of the residents.

1.3       Except to the extent as may be expressly authorized by Company in writing hereafter, Consultant shall have no authority to act as the agent of Company under this Agreement or to obligate Company in any manner or way.

1.4       Company shall furnish Consultant all records, books of account and other information and materials reasonably requested and necessary or appropriate for the performance of the Services.

2.0       STANDARD OF CARE

2.1       Services performed by Consultant will be conducted in a manner consistent with that level of care and skill ordinarily exercised by other competent consultants with expertise in the type, size and quality of Services required hereunder.

2.2       Consultant shall comply with all laws, rules, codes, and regulations applicable to the Services imposed by governmental authorities having jurisdiction over the Services.

3.0       PAYMENT

3.1       Compensation and the manner of payment of such compensation by Company for Services rendered hereunder by Consultant shall be as set forth in Exhibit B.  Consultant agrees to furnish to Company, after the end of each calendar month, a comprehensive and itemized statement of charges, together with such backup and detail as reasonably may be required by Company, for the Services performed and rendered by Consultant during that time period, and for any Company-authorized reimbursable expenses incurred and/or paid by Consultant during that time period.

3.2       Company agrees to reimburse Consultant for all necessary and reasonable reimbursable expenses incurred or paid by Consultant in connection with Consultant’s performance of the Services, at its direct cost with no markup.

3.3       Payments due and owing under this Agreement thirty (30) days after the due date shall be subject to interest at the rate of six percent (6%) per annum.

4.0       LIABILITY AND INDEMNIFICATION

4.1       Notwithstanding any other provision of this Agreement, Consultant’s liability to  Company for errors, inconsistencies, loss or damage arising out of Consultant’s performance or nonperformance of the Services shall be limited to errors, inconsistencies, loss or damage directly resulting from Consultant’s gross negligence or willful misconduct.  In no event shall Consultant be liable for any incidental, indirect, special or consequential damages or loss of profits suffered by Company for any claim, demand or action asserted against Company by a third party arising out of or in connection with this Agreement or the Services provided hereunder.

4.2       The following indemnification shall survive the termination of this Agreement:

(a)        Company shall indemnify, defend and hold Consultant and its officers, directors, managers, members, employees and affiliates harmless from any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees and expenses (collectively “Claims”) sustained, incurred by, or asserted against Consultant by reason of or arising out of or on account of, this Agreement or performance of the Services unless the Claim results from the gross negligence or willful misconduct of Consultant.

(b)       Consultant shall indemnify, defend and hold Company and its officers, directors, managers, members, employees and affiliates harmless from any and all Claims sustained or incurred by, or asserted against, Company by reason of or arising directly from actions by Consultant that constitute gross negligence or willful misconduct.

5.0       TERM AND TERMINATION

5.1       The term of this Agreement shall commence as of the Effective Date of this Agreement and continue thereafter in effect for one year, unless terminated earlier in accordance with this Agreement or renewed or extended in writing by mutual agreement of the parties.

5.2       Either party (the “Nonbreaching Party”) may elect to terminate this Agreement because of a material breach of this Agreement by the other party (the “Breaching Party”) as follows:

(a)        The Nonbreaching Party will provide the Breaching Party with (i) written notice of such material breach within fifteen (15) days after the Nonbreaching Party acquires knowledge of such breach and (ii) the opportunity to cure the material breach by (A) in the event of a failure to make any payment when due, within five (5) days of the delivery of notice of the breach and (B) in the event of any other material breach, within ten (10) days after delivery of the notice of the breach.

(b)       If the material breach is not cured as provided above, the Nonbreaching Party may terminate this Agreement by notice to the Breaching Party effective as set forth in such notice, or immediately upon the expiration of the cure period if not so specified.

5.3       Either party may terminate this Agreement without cause at any time upon sixty (60) days written notice to the other party.

6.0       TRANSFER ASSISTANCE

6.1       If Company desires Consultant’s assistance in transferring Services from Consultant to Company or another third party service provider (“Transfer Assistance”), upon Company’s written request, Consultant will provide such Transfer Assistance to Company to the extent Consultant can do so using its then existing resources dedicated solely to providing the Services to the Facility.  Such Transfer Assistance shall be provided for a period not to exceed three (3) months following any termination of this Agreement and to the extent Consultant is providing Transfer Assistance, Consultant shall be reasonably compensated for such assistance during the transfer period.  Consultant may, in its sole discretion, refuse to provide Transfer Assistance that involves performance of services for a competitor or that would unreasonably interfere with Consultant’s ability to perform the Services.

6.2       If Company is unable to complete the transfer of Services from Consultant to Company or another third party service provider as of the date of termination of this Agreement without cause, Company may elect to extend this Agreement at the then current fee structure, for a period of up to sixty (60) days.  Company will continue to pay Consultant its fees as set forth on Exhibit B for the temporary extension period of sixty (60) days.   Company will not be permitted to request a temporary extension of services in the event of a termination by Consultant for Company’s breach of this Agreement.

6.3       If and to the extent Consultant is utilizing any third party services to provide the Services at the Facility, Consultant will assign the contracts, if any, to the extent assignable, to Company or Company’s designee.

7.0.      CONFIDENTIALITY/NON SOLICITATION

7.1       Each party recognizes that that the other party has and will have confidential information including without limitation, algorithms, code, voice-driven commands, passwords, costs, product and service integrations, future plans, business affairs, customer lists, software systems, prices and other proprietary information (collectively, “Information”) which are valuable, special and unique assets and need to be protected from improper disclosure.  Each party agrees that it will not at any time or in any manner, either directly or indirectly, use any Information other than for the purposes of this Agreement, for its own benefit, or divulge, disclose, or communicate in any manner any Information to any third party without the prior written consent of the disclosing party.  Each party will protect the Information of the other and treat it as strictly confidential.  A violation of this paragraph shall be a material violation of this Agreement.

7.2       To the extent applicable to this Agreement, the parties shall comply with the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, including, without limitation, the Standards for Electronic Transactions and Code Sets (45 CFR Parts 160 and 162), the Standards for Privacy of Individually Identifiable Health Information (45 CFR Parts 160 and 164), the Security Standards for the Protection of Electronic Protected Health Information (45 CFR Parts 160 and 164), and such other regulations that may, from time to time, be promulgated thereunder, including, without limitation, amendments to such Laws pursuant to the Health Information Technology for Economic and Clinical Health Act (part of the American Recovery and Reinvestment Act of 2009), and the regulations promulgated thereunder (collectively, “HIPAA”).  Neither party shall use or disclose any Protected Health Information or Individually Identifiable Health Information, as defined at 45 CFR § 160.103, other than as is permitted from time to time under HIPAA.  The parties have entered into a Business Associate Agreement pursuant to HIPAA, a copy of which is attached as Exhibit C.

7.3       During the term of this Agreement and for a period of one (1) year thereafter, neither party shall (i) knowingly solicit or entice or endeavor to solicit or entice away from of the other party, any employee, any person who was or is at the time of the solicitation or enticement a director, officer, member, employee, agent or consultant of or for the other party, or (ii) knowingly employ any person who was a director, member, officer or employee of the other party.  The parties agree and acknowledge that either party would be irreparably injured by the breach of this provision, and that money damages alone may not be an appropriate measure of the harm to the non-breaching party.  Because the remedy at law for any breach of this provision would be inadequate, both parties consent and agree, in case of any such breach, to the granting by any court of competent jurisdiction of specific enforcement, including, but not limited to pre‑judgment injunctive relief.  The parties hereto agree that if, in any proceeding, the court or other authority shall refuse to enforce the covenants herein set forth because such covenants cover too extensive a geographic area, too long a period of time or too broad a scope of prescribed activities, any such covenant shall be deemed appropriately amended and modified in keeping with the intention of the parties to the maximum extent permitted by law. Any covenant so amended and modified shall be of full force and effect for such lesser geographic area, period of time or scope of activities which is determined by the court or other authority to be permitted by law.

7.4       The confidentiality and non-solicitation provisions of this Agreement shall remain in full force and effect after the termination of this Agreement.

8.0       OWNERSHIP AND USE OF DOCUMENTS

8.1       Drawings, specifications, algorithms, code, user interface documents, voice-driven commands, programs, programing tools, reports, and other documents, including those in electronic form, prepared by Consultant and Consultant’s subconsultants in connection with this Agreement, including any developments and derivations that result from Consultant’s collaboration with the Company pursuant to Section 1.2, are herein collectively referred to as “Work Product.” The Consultant and its subconsultants shall retain all common law, statutory and other reserved rights, including copyrights, in the Work Product.

8.2       Consultant shall grant, and hereby does grant, the Company a non-exclusive, fully-paid-up, license to use, store, serve, and perform all Work Product in which the Consultant has or may have any rights (i) as reasonably necessary for archival, safety, and disaster recovery purposes, (ii) for submission or distribution, as Company reasonably determines is prudent or proper, to meet official regulatory requirements, or for similar purposes, in connection with the Facility.

9.0       MISCELLANEOUS

9.1       Entire Agreement.  This Agreement supersedes all other agreements, oral or written, and contains the entire agreement of the parties.  No cancellation, modification, amendment, deletion, addition, waiver or other change in this Agreement shall have effect unless specifically set forth in writing signed by the party to be bound thereby.  Titles in this Agreement are for convenience only.

9.2       Successors and Assigns & Assignment.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.  This Agreement may not be assigned by either party without written consent of the other party.

9.3       Non-Waiver.  No waiver of any right or remedy in respect of any occurrence on one occasion shall be deemed a waiver of such right or remedy in respect of such occurrence on any other occasion.

9.4       Severability.  Any provision, to the extent it is found to be, unlawful or unenforceable shall be ineffective without affecting any other provision of the Agreement, so that the Agreement will be deemed to be a valid and binding agreement enforceable in accordance with its terms.

9.5       Governing Law.  This Agreement shall be governed by the laws of the State  of Florida without regard to the conflict-of-laws provisions thereof.

9.6       Time of the Essence.  Time is of the essence in this Agreement.

9.7       Independent Contractor.  Consultant expressly represents and warrants to Company that it is not and will not be construed to be an employee or agent of Company and that its status is that of independent contractor solely responsible for its acts or omissions. The conduct and control of the Services will lie solely with Consultant. As an independent contractor, Consultant is not authorized to enter into contracts or agreements or otherwise create obligations to third parties on behalf of Company.

9.8       Construction.  The parties hereto acknowledge that they have carefully reviewed this Agreement and have had the opportunity to be advised by counsel of their choosing with respect thereto, and that they understand its contents and agree that this Agreement shall not be construed more strongly against any party hereto, regardless of who is responsible for its preparation.

9.9       Notices.  Any notices required or permitted under the Agreement shall be deemed fully given if placed in a prepaid addressed envelope and sent by certified U.S. Mail with return receipt requested or by Federal Express or other similar national express mail service.  Any such notice shall be effective upon delivery.  All notices to be given to the parties shall be sent to or made at the addresses as set forth below; but by giving the other party at least 10 days prior written notice thereof, the parties hereto shall have the right to change their respective addresses or to whom the notices are to be sent.

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