Zypsy will provide the services (the “Zypsy Services”) and deliver the deliverables requested by Customer or Customers from time to time (“Deliverables”) in conformance with the applicable specifications and schedule provided by Customer or such Customers to Zypsy, including without limitation as described in the applicable project page (the “Project Page”) provided on Customer’s software-as-a-service platform (the “Customer Platform”) (the “Project(s)”). The Deliverables shall be provided to Customer through the Customer Platform. Zypsy may provide the Zypsy Services by itself and/or Designers (including their respective subcontractors approved by Zypsy) as reasonably designated and subcontracted by Zypsy in its reasonable discretion. All of Zypsy’s Designers shall be bound by obligations consistent with the provisions of these Terms for Customer, and Zypsy shall be responsible for all acts and omissions of each such Designer, as if each were “Zypsy” hereunder.
- Deliverables. Customer shall own all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights, sui generis database rights and all other intellectual property rights of any sort throughout the world) relating to any and all Deliverables and any other inventions (whether or not patentable), works of authorship, mask works, designations, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, by or on behalf of Zypsy that arise in connection with the Zypsy Services, Deliverables or any Confidential Information (as defined below) (collectively, “Inventions”), including, but not limited to, (i) the entire design of Customer’s web site and/or mobile application embodied or represented in Deliverables (the “Customer-Specific Design") and (ii) source code developed or created by Zypsy that is specific to Customer as mutually agreed by Zypsy and Customer in advance in writing, but excluding source code developed or created by Zypsy that is not specific to Customer and is generally applicable to design or development projects for other Customers and deliverables (the “Community Code”). Zypsy hereby makes all assignments necessary to accomplish the foregoing ownership except for the Community Code. Further, Zypsy shall promptly disclose and provide all Inventions (excluding the Community Code) to Customer. Zypsy shall assist Customer, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights assigned to Customer. Zypsy hereby irrevocably designates and appoints Customer as its agents and attorneys-in-fact, coupled with an interest, to act for and on Zypsy’ behalf to execute and file any document and to do all other lawfully permitted acts to further the foregoing with the same legal force and effect as if executed by Zypsy and all other creators or owners of the applicable Invention (for the avoidance of doubt, which does not contain any Community Code).
- Background License. Notwithstanding the foregoing, no assignment made hereunder includes any Community Code and Zypsy Technology. “Zypsy Technology” shall mean (a) Zypsy’s technology, methodologies and intellectual property existing as of the date on which Customer accepts these Terms for Customer or otherwise arising outside of work under these Terms for Customer (including, but not limited to, any source code developed or created by Zypsy for other customers in the course of certain services similar to Zypsy Services that has not been assigned or transferred to such customers and that Zypsy retains all the rights in and title to such source code), and (b) any intellectual property rights therein, in each case (i.e., (a) and (b)) that are expressly set forth in writing to Customer prior to delivery of the Deliverables to Customer. To the extent any Community Code and/or Zypsy Technology is incorporated into or otherwise reasonably necessary to use or otherwise exploit any Deliverables or Inventions, Zypsy grants to Customer a non-exclusive, royalty-free, perpetual, irrevocable, sublicensable, worldwide license to fully exercise and exploit the Community Code and/or Zypsy Technology and to make derivative works of the same (and any modifications, improvements or derivatives thereof) in support of Customer or the Customer’s exercise or exploitation of the Zypsy Services or any Deliverables.
- Moral Rights; Further Assurances. Zypsy hereby waives all claims to any moral rights or other special rights which Zypsy may have or accrue in any Inventions (for the avoidance of doubt, which does not contain any Community Code). Zypsy shall further assist Customer from time to time at Customer’s request and expense, to further evidence, record, perfect, maintain and enforce any and all of the foregoing rights. Zypsy hereby irrevocably designates and appoints Customer as its agent and attorney-in-fact, coupled with an interest, to act for and on Zypsy’s behalf to execute and file any document and to do all other lawfully permitted acts to further the foregoing assignment and license with the same legal force and effect as if executed by Customer and all other creators or owners of any applicable Inventions (for the avoidance of doubt, which does not contain any Community Code).
- Third Party Materials. Zypsy shall obtain Customer’s prior written consent prior to incorporating in the Inventions or Deliverables information or materials to which third parties have any rights, whether by patent, copyright, trade secret or otherwise ("Third Party Materials"), unless otherwise specified in the applicable specifications. Further, unless otherwise specified in the applicable specifications, Zypsy shall obtain written permission to include such Third Party Materials (and for Customer to fully exploit such Third Party Materials in connection with their exploitation of the Deliverables), without any additional expense to Customer. This written permission must be consistent with all the rights granted to Customer under these Terms for Customer. Zypsy shall provide Customer with a copy of the written permission upon completion of the Deliverables or otherwise upon request.
- Promotional Use of Customer-Specific Design by Zypsy. Customer hereby grants to Zypsy a non-exclusive, royalty-free, perpetual, irrevocable, sublicensable, worldwide license to use, exploit or display the Customer-Specific Design as one of the portfolios on Zypsy’s web site and its other marketing, advertising or promotional materials only for the purposes of marketing, advertising or promoting any of Zypsy’s business.
Fees; Payment Terms
- Fees. Customer will pay to Zypsy the fees set forth on the applicable quotation (“Zypsy Fees”), in accordance with the terms and conditions set forth in these Terms for Customer below. The Zypsy Fees will be charged and payable based on whether Zypsy’s provision of Zypsy Services to Customer and Zypsy is in the “Initial Phase” or the “Retainer Phase”, which shall be further set forth on the applicable quotation.
- Initial Phase. In the Initial Phase, Zypsy and Customer may decide on one of the following three payment methods: (a) cash payment to Zypsy, (b) issuance of a Simple Agreement for Future Equity and/or a Token Warrant, (the “SAFE and/or Token Warrant”), or (c) 50% of the Zypsy Fees by cash and the remaining 50% by issuance of the SAFE and/or Token Warrant.
- Retainer Phase. In the Retainer Phase, the Zypsy Fees will be charged on a per hour basis. Examples of Zypsy Services to be provided in the Retainer Phase include maintenance on Deliverables that Zypsy has already provided to the Customer. The hourly fee will reflect a reasonable fee and depend on a number of factors, including the experience and expertise of the Designers, employees, contractors and others performing the Zypsy Services, the nature and complexity of the work to be performed and the special skills required to perform work. Zypsy reserves the right to raise any hourly rates, and will provide reasonable notice to Customer of any such raise.
- Payment Disputes. If Customer disputes any payments, Customer must notify Zypsy within thirty (30) days after the date of payment or such dispute is waived. If a Customer notifies Zypsy that it is unsatisfied with a Deliverable and Zypsy reasonably determines that the Deliverable has failed to reasonably meet the applicable specifications therefor, Zypsy agrees to provide a replacement Deliverable in accordance with the applicable specifications free of charge upon Customer’s request. In the event of refunds or other adjustments due to insufficient or unsatisfied performance of the Zypsy Services to a Customer, resulting in full or partial credit to a Customer, Customer, at its option, may require that Zypsy repay the fees originally paid to it on account of the sale of such Zypsy Services within fifteen (15) days after notice thereof from Customer, or surrender all or a portion of the SAFE and/or Token Warrant (if issued).
- Taxes. Zypsy will be solely responsible for payment of any applicable taxes pursuant to applicable tax laws.
Zypsy agrees that all Deliverables, Projects and Inventions (for the avoidance of doubt, which does not contain any Community Code) and all other information (including, without limitation, computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information, but excluding any Community Code) that Zypsy develops, learns or obtains in connection with Zypsy Services, constitute “Confidential Information” of Customer. Zypsy will hold in confidence and not disclose or, except in performing the Zypsy Services, use any Confidential Information. However, Zypsy shall not be obligated under this paragraph with respect to information Zypsy can document is or becomes readily publicly available without restriction through no fault of Zypsy. Upon termination and as otherwise requested by Customer, Zypsy will promptly return to Customer all items and copies containing or embodying Confidential Information (including, without limitation, all Deliverables and all work-in-progress, but excluding any Community Code). Subject to these Terms for Customer, Zypsy may cause Designers to have access to an online forum and community of Designers through the Designer Platform (the “Designer Community”) in which Designers may discuss with and disclose to other Designers information relating to Customer specifications, Projects and Deliverables solely within the Designer Community and solely for the purpose of providing the Zypsy Services hereunder. Zypsy may not disclose any Customer information or Customer Confidential Information, including, but not limited to information relating to the Deliverables or any underlying source code thereto (but excluding any Community Code), to any third party except for Designers (including their respective subcontractors approved by Zypsy) as reasonably designated and subcontracted by Zypsy in its reasonable discretion or as expressly provided herein.
- Survival. Upon termination of these Terms for Customer, all obligations in this Agreement will terminate, provided that the sections titled “Ownership”, “Confidentiality”, “Indemnification”, “Non-solicitation”, “Arbitration and Equitable Relief” and “General” shall survive termination of these Terms for Customer.
Independent Contractor; No Employee Benefits
Notwithstanding any provision hereof, Zypsy is an independent contractor and is not an employee, agent, partner or joint venturer of Customer and shall not bind nor attempt to bind Customer to any contract. Zypsy shall accept any directions issued by Customer pertaining to the goals to be attained and the results to be achieved by Zypsy, but Zypsy shall be solely responsible for the manner and hours in which the services are performed under these Terms for Customer. Zypsy shall comply at Zypsy’s expense with all applicable provisions of workers’ compensation laws, unemployment compensation laws, federal social security law, the Fair Labor Standards Act, federal, state, local and foreign income tax laws, and all other applicable federal, state, local and foreign laws, regulations and codes relating to terms and conditions of employment required to be fulfilled by employers or independent contractors. Zypsy will ensure that its employees, contractors and others involved in the Zypsy Services, if any, are bound in writing to the foregoing, and to all of Zypsy’s obligations under any provision of these Terms for Customer, for Customer’s benefit and Zypsy will be responsible for any noncompliance by them. Zypsy agrees to indemnify Customer from any and all claims, damages, liability, settlement, attorneys’ fees and expenses, as incurred, on account of the foregoing or any breach of these Terms for Customer or any other action or inaction by or for or on behalf of Zypsy.
Representations and Warranties
- Customer represents and warrants to Zypsy that Customer has the required power and authority to accept these Terms for Customer and to perform its obligations hereunder, (b) the acceptance of these Terms for Customer and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) these Terms for Customer constitute a legal, valid and binding obligation when accepted by such Customer.
- Zypsy represents and warrants to Customer that (a) Zypsy will perform the Zypsy Services in a professional and workmanlike manner by itself or employees of Zypsy having a level of skill commensurate with the requirements of these Terms for Customer; (b) that the Deliverables will conform to the applicable specifications therefor and that none of the Zypsy Services, Deliverables or Inventions nor any development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity; (c) Zypsy has the full right to allow it to provide Customer with the assignments and rights provided for herein (and has written enforceable agreements with all employees, contractors and other persons necessary to give it the rights to do the foregoing and otherwise fully perform these Terms for Customer); (d) Zypsy shall comply with all applicable laws, the applicable Statement(s) of Work, and other policies as set forth by Customer or Customers, in the course of performing the Zypsy Services; (e) if Zypsy’s work requires a license, Zypsy has obtained that license and the license is in full force and effect, and (f) that all software included within any Deliverable is (i) free of all viruses, worms, trojan horses and other infections or harmful routines, (ii) does not contain any third-party software, including without limitation, “open source,” “copy left,” “public” or other similar code or anything derived from or based on any of the foregoing (unless approved by Customer in writing), and (iii) is free from (and if distributed would still be free from) any requirement imposed by a licensor that recipients be entitled to source code or to modify or distribute any such software.
Zypsy will indemnify, defend and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from any liabilities that are payable to any third party by the Customer Indemnified Parties (including reasonable attorneys' fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of or is in connection with (a) breach of these Terms for Customer by Zypsy or (b) infringement of any third party intellectual property right by any of the Zypsy Services, Deliverables or Inventions.
Customer agrees that during the period over which Zypsy is to be providing the Zypsy Services and for one (1) year thereafter, Customer will not directly or indirectly encourage or solicit any employee or Designer of Zypsy to leave Zypsy for any reason without Zypsy’s prior written consent.
Arbitration and Equitable Relief
- Arbitration. CUSTOMER HEREBY AGREES THAT ANY AND ALL CONTROVERSIES, CLAIMS, OR DISPUTES WITH ANYONE (INCLUDING ZYPSY AND ANY EMPLOYEE, OFFICER, DIRECTOR, SHAREHOLDER, OR BENEFIT PLAN OF ZYPSY, IN THEIR CAPACITY AS SUCH OR OTHERWISE), ARISING OUT OF, RELATING TO, OR RESULTING FROM THESE TERMS FOR CUSTOMER SHALL BE SUBJECT TO BINDING ARBITRATION UNDER THE ARBITRATION RULES SET FORTH IN CALIFORNIA CODE OF CIVIL PROCEDURE AND PURSUANT TO CALIFORNIA LAW. DISPUTES THAT CUSTOMER AGREES TO ARBITRATE, AND THEREBY AGREES TO WAIVE ANY RIGHT TO A TRIAL BY JURY, INCLUDE ANY STATUTORY CLAIMS UNDER LOCAL, STATE, FEDERAL OR FOREIGN LAW. CUSTOMER FURTHER UNDERSTANDS THAT THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO ANY DISPUTES THAT ZYPSY MAY HAVE WITH CUSTOMER. CUSTOMER FURTHER AGREES THAT CUSTOMER WILL NOT ASSERT CLASS ACTION OR REPRESENTATIVE ACTION CLAIMS AGAINST ZYPSY IN ARBITRATION OR OTHERWISE, NOR WILL CUSTOMER JOIN OR SERVE AS A MEMBER OF A CLASS ACTION OR REPRESENTATIVE ACTION, AND THAT CUSTOMER WILL ONLY SUBMIT CUSTOMER’S OWN, INDIVIDUAL CLAIMS IN ARBITRATION AND WILL NOT SEEK TO REPRESENT THE INTERESTS OF ANY OTHER PERSON.
- Procedure. CUSTOMER AGREES THAT ANY ARBITRATION WILL BE ADMINISTERED BY JAMS, INC. (“JAMS”), PURSUANT TO ITS EMPLOYMENT ARBITRATION RULES & PROCEDURES (THE “JAMS RULES”). CUSTOMER AGREES THAT THE ARBITRATOR SHALL HAVE THE POWER TO DECIDE ANY MOTIONS BROUGHT BY ANY PARTY TO THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR ADJUDICATION, MOTIONS TO DISMISS AND DEMURRERS, AND MOTIONS FOR CLASS CERTIFICATION, PRIOR TO ANY ARBITRATION HEARING. CUSTOMER ALSO AGREES THAT THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES AVAILABLE UNDER APPLICABLE LAW, AND THAT THE ARBITRATOR SHALL AWARD ATTORNEYS’ FEES AND COSTS TO THE PREVAILING PARTY, EXCEPT AS PROHIBITED BY LAW. CUSTOMER AGREES THAT THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH CALIFORNIA LAW, INCLUDING CALIFORNIA CODE OF CIVIL PROCEDURE, AND THAT THE ARBITRATOR SHALL APPLY SUBSTANTIVE AND PROCEDURAL CALIFORNIA LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO RULES OF CONFLICT OF LAW. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH CALIFORNIA LAW, CALIFORNIA LAW SHALL TAKE PRECEDENCE. CUSTOMER AGREES THAT THE DECISION OF THE ARBITRATOR SHALL BE IN WRITING. CUSTOMER AGREES THAT ANY ARBITRATION HEREUNDER SHALL BE CONDUCTED IN SAN FRANCISCO COUNTY, CALIFORNIA.
- Remedy. EXCEPT AS PROVIDED BY THE ACT AND THESE TERMS FOR CUSTOMER, ARBITRATION SHALL BE THE SOLE, EXCLUSIVE, AND FINAL REMEDY FOR ANY DISPUTE BETWEEN CUSTOMER AND ZYPSY. ACCORDINGLY, EXCEPT AS PROVIDED FOR BY THE ACT AND THIS AGREEMENT, NEITHER CUSTOMER NOR ZYPSY WILL BE PERMITTED TO PURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO ARBITRATION.
- Administrative Relief. CUSTOMER UNDERSTANDS THAT THESE TERMS FOR CUSTOMER DO NOT PROHIBIT CUSTOMER FROM PURSUING AN ADMINISTRATIVE CLAIM WITH A LOCAL, STATE, OR FEDERAL ADMINISTRATIVE BODY OR GOVERNMENT AGENCY. THESE TERMS FOR CUSTOMER, HOWEVER, PRECLUDE CUSTOMER FROM PURSUING COURT ACTION REGARDING ANY SUCH CLAIM, EXCEPT AS PERMITTED BY LAW.
- Voluntary Nature of Agreement. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER IS ACCEPTING THESE TERMS FOR CUSTOMER VOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE BY ZYPSY OR ANYONE ELSE. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS CAREFULLY READ THESE TERMS FOR CUSTOMER AND THAT CUSTOMER HAS ASKED ANY QUESTIONS NEEDED FOR CUSTOMER TO UNDERSTAND THE TERMS, CONSEQUENCES, AND BINDING EFFECT OF THESE TERMS FOR CUSTOMER AND FULLY UNDERSTAND THEM, INCLUDING THAT CUSTOMER IS WAIVING CUSTOMER’S RIGHT TO A JURY TRIAL. FINALLY, CUSTOMER AGREES THAT CUSTOMER HAS BEEN PROVIDED AN OPPORTUNITY TO SEEK THE ADVICE OF AN ATTORNEY OF CUSTOMER’S CHOICE BEFORE ACCEPTING THESE TERMS FOR CUSTOMER.
Any breach of Articles in this Terms of Customer will cause irreparable harm to Customer for which damages would not be an adequate remedy, and therefore, Customer will be entitled to injunctive relief with respect thereto in addition to any other remedies. The failure of either Customer or Zypsy to enforce its rights under these Terms for Customer at any time for any period shall not be construed as a waiver of such rights. No changes or modifications or waivers to these Terms for Customer will be effective unless in writing and signed by both Customer and Zypsy. In the event that any provision of these Terms for Customer shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms for Customer shall otherwise remain in full force and effect and enforceable. These Terms for Customer shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions thereof. In any action or proceeding to enforce rights under these Terms for Customer, the prevailing party will be entitled to recover costs and attorneys’ fees. Headings herein are for convenience of reference only and shall in no way affect interpretation of these Terms for Customer.