Darwin AI Software & Services Agreement

This Services Agreement ("Agreement") is entered into on DATE (the "Effective Date") between Darwin AI, LLC ("Company"), and CUSTOMER NAME ("Customer") (each a "party", collectively, the "parties"). This Agreement includes and incorporates the attached Terms and Conditions and contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.

Platform and Services:

As used herein, "Services" refers to the creative analytics, creative testing, and creative studio services provided through the Darwin Software Platform and more fully described in Appendix A, which is incorporated herein by reference.

The Darwin Software Platform is a creative analytics platform designed to achieve business objectives through data driven creative insights.

Initial Term/Renewals:

Four (4) weeks from the start date ("Initial Term"), renewing to 12-month terms at the end of the Initial Term, unless terminated by either party in accordance with the Terms and Conditions.

Darwin Software Fees:
Creative Testing: The first four (4) weeks of Creative Testing will be provided at no charge ($0) to Customer.

Subsequent to the conclusion of the initial term, the Customer will be charged the $4,500.00 per month per ad account.

Darwin Creative Studio Fees:
7% of media spend on all ads generated by Company, billed at the start of each month of service for the prior month's media spend.

In the event of termination for any reason, Customer agrees to pay Darwin the above percentage fee of media spend on all ad creative created by Darwin running in Customer ad accounts, regardless of platform, in perpetuity.

TERMS AND CONDITIONS

1. SAAS SERVICES AND SUPPORT

1.1 During the Term, Customer will receive a nonexclusive, non-assignable, royalty free license to access and use the Services solely for Customer's internal business operations subject to the terms of this Agreement and up to the number of Authorized Users set forth in Appendix A. Customer acknowledges that this Agreement is a services agreement and Company will not be delivering copies of the Software to Customer as part of the Services.

1.2 Subject to the limited license granted herein, Company shall own all right, title and interest in and to the Software, Services, and other documentation and deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights. Company shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendation or other feedback provided by Customer, including Authorized Users, relating to the operation of the Services. Customer agrees to assign all right, title and interest it may have in the foregoing to the Company.

1.3 As part of the registration process, Customer will identify an administrative user name and password for Customer's Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

1.4 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to ensure that Services provided to Customer will be of a professional quality, conforming to generally accepted industry standards and practices for similar Services.

1.5 Subject to the terms hereof, Company will provide Customer with reasonable technical support services necessary to provide the Services in accordance with Section 1.1 of this Agreement. Services will be performed in accordance with Appendix A to this Agreement.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Customer will not and shall not permit anyone to directly or indirectly: (a) make the Services available to anyone other than an Authorized User; (b) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services ("Software"); (c) copy or republish the Software; (d) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); (e) access the Services or related documentation in order to build a similar or competitive product; (f) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (g) remove, modify or obscure any copyright, trademark, or other proprietary notices or labels contained in the Software or in any documentation related to the Software or the Services, (h) utilize creative assets generated by Darwin, including new versions or iterations of said assets, without flagging these assets as Darwin generated in the applicable media platform.

2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.

2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance all applicable laws and regulations. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Equipment"). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer's knowledge or consent.

2.4 Customer shall provide commercially reasonable information and assistance to Company to enable Company to deliver the Services. Upon request from Company, Customer shall promptly deliver all Customer Data to Company in an electronic file format specified and accessible by Company. Customer acknowledges that Company's ability to deliver the Services in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.

2.5 Customer shall: (a) notify Company immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (b) report to Company immediately and use reasonable efforts to stop any unauthorized use of the Services that is known or suspected by Customer or any Authorized User, and (c) not provide false identity information to gain access to or use the Services.

2.6 Customer shall be solely responsible for the acts and omissions of its Administrator Users. Company shall not be liable for any loss of data or functionality caused directly or indirectly by Customer or any Administrator Users.

2.7 Customer is solely responsible for collecting, inputting and updating all Customer Data provided to Company, and for ensuring that the Customer Data does not (a) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (b) contain anything that is obscene, defamatory, harassing, offensive or malicious. Subject to the terms and conditions of this Agreement, Customer shall grant to Company a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display and transmit Customer Data solely as necessary to provide the Services to Customer. Customer retains ownership and intellectual property rights in and to its Customer Data. Company or its licensors retain all ownership and intellectual property rights to the services, Software programs, and anything developed and delivered under the Agreement.

2.8 Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation reasonable costs and attorneys' fees)(collectively, "Losses") incurred in connection with any claim or action which arises out of, or is related to, (a) Customer's breach of this Agreement; (b) Customer's gross negligence or willful misconduct in performing its obligations under this Agreement; (c)claims that the Customer Data infringes any patent, copyright or trademark, or misappropriates any trade secret; or (d) Customer's violation of Section 3 ("Confidentiality; Proprietary Rights") of this Agreement. Although Company has no obligation to monitor Customer's use of the Services, Company may do so and may, upon sufficient notice to Customer, which shall be no less than thirty (30) days, prohibit any use of the Services it finds are in violation of the foregoing.

2.9 Notwithstanding the above, neither party will be required to defend or indemnify any party to the extent the other party's Losses or expenses are caused by that party's own negligence or willful misconduct.

2.10 A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party's expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.

3. CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1 The parties' Confidentiality obligations shall be governed by the Mutual Non-Disclosure Agreement. Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

3.2 Notwithstanding anything to the contrary, Company shall have a limited, revocable, non-exclusive, non-sublicensable, limited license to use any content information, material, technology, data, and/or systems provided by or made available by Customer to Company ("Customer Materials") for the sole purpose of providing the Services contemplated hereunder. Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

4. PAYMENT OF FEES

4.1 Customer will pay Company the then applicable fees described in the Agreement for the Services in accordance with the terms therein (the "Fees").

4.2 Company may choose to bill through an invoice, in which case, full payment for any undisputed fees set forth in an invoice in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts for undisputed fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company's net income.

5. TERMINATION

This Agreement is for the Initial Term and shall auto-renew to subsequent 12-month terms unless either party gives a written notice of non-renewal to the other no less than 60 days prior to the end of the then-current Term. Customer may terminate this agreement upon the conclusion of the Initial Term with written (email) notice. Company may terminate this Agreement in the event of Customer's breach of this Agreement and its failure to cure such breach within ten (10) days after written notice of such breach.

6. WARRANTY AND DISCLAIMER

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company's reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED "AS IS" AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

7. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER PARTY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND THAT PARTY'S REASONABLE CONTROL REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE); OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. MISCELLANEOUS

8.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

8.2 This Agreement is not assignable, transferable or sublicensable by Customer except with Company's prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without Customer's consent.

8.3 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.

8.4 No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has the authority to bind the other party in any respect whatsoever. This Agreement is an agreement solely between the parties, and confers no rights upon either party's employees, agents, contractors, partners of customers or upon any other person or entity.

8.5 All notices under this Agreement will be in writing and delivered to the address following the respective party's signature. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

8.6 Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.

8.7 Sections 2.8-2.11 and Article 3 of this Agreement shall survive the expiration or termination of this Agreement for any reason.

8.8 This Agreement may be executed in multiple counterparts, each of which when executed will be an original, and all of which, when taken together, will constitute one agreement. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic transmission (including via pdf) will be effective as delivery of a manually executed counterpart.

8.9 Any litigation filed that results from this Agreement shall be filed in the Circuit Court of Cook County, Illinois. This Agreement shall be governed by the laws of the State of Illinois without regard to its conflict of laws or provisions. Customer agrees that it shall pay all reasonable attorney fees and court costs incurred by Company in any collection efforts and/or litigation between the parties hereto.

8.10 Customer agrees to reasonably cooperate with Company to serve as a reference account upon request.

9. DISPUTE RESOLUTION

Customer will notify Company of any actual or alleged errors that Customer becomes aware of in any invoice, billing or Fee statement within thirty (30) days of receipt thereof. In such notice Customer shall advise what amounts of the invoice the Customer is disputing and the basis for disputing those amounts. Customer and Company agree that senior management shall discuss the problem and negotiate in good faith in an effort to resolve any such bona fide billing or Fee disputes without necessity of any formal proceeding relating thereto. Any undisputed portion of any invoice, billing or Fee statement shall be paid in accordance with the terms of this Agreement. Company shall not exercise its termination rights herein if, and to the extent Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If a mutually agreed resolution cannot be obtained within ten (10) days of senior management's first communication, the matter shall be escalated to and mutually reviewed by an executive officer of each Party in an attempt to settle the dispute. If the parties are unable to reach a resolution within thirty (30) days after the executive officers are engaged, the parties may exercise any legal means to protect their respective interests.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

COMPANY
Darwin AI, LLC

By: ___________________
Name: Dave Crawford
Its: Head of Product

Address for Notices:
339 S Ashland
La Grange, IL 60525

CUSTOMER
CUSTOMER NAME

By: ___________________
Name: _________________
Its: ____________________

Address for Notices:
_______________________
_______________________

Appendix A: Darwin Platforms and Services

Creative Testing: Customer will receive access to the Testing portion of the Darwin Software platform, which is designed to optimize the creative testing process, inclusive of the following:

Integration with a single ad account for automated ad optimization
Capacity to load up to 50 creative assets at a time into the Fitness Testing Module
Unlimited training of new employees on Darwin functionality (service)
Dedicated support to interpret findings and results of creative testing

Note: any of the above can be expanded as needed for additional fee(s).

Creative Studio: Customer will receive access to the Studio portion of the Darwin Software platform, where all creative production and revisions will be completed, inclusive of the following:

Creative asset production following Customer's brand guidelines
Up to four (4) rounds of creative revisions per asset

Customer responsibilities: Customer agrees to work with Company to:

Communicate advertising campaign goals, relevant key performance indicators ("KPIs"), upcoming marketing initiatives, and overall marketing objectives.
Grant full edit access to applicable ad account(s) and pages.
Share brand guidelines, fonts, colors, raw assets, and other creative elements critical to the creative production process. (Creative Testing only)
Provide creative revisions within 48 hours of receiving notice from Company that new creative assets are available for review in Creative Studio (Creative Testing only)
Approve all finalized creative assets in Creative Studio (Creative Testing only)
Clearly indicate which ads were made by Company in applicable media platforms for tracking purposes