Thank you for trusting Atypical Limited Liability Company, a California company (“Atypical,” “we,” “us,” or “our”) to provide you with professional information technology and consulting services. This Professional Services Agreement (this “Agreement”) governs our business relationship with you, so please read this document carefully and keep a copy for your records.

SCOPE

Context. In this Agreement all references to “Client,” “you,” or “your” mean the entity who has accepted a quote, proposal, service order, or similar document (electronic or otherwise) from Atypical. (In this Agreement we refer collectively to these type of documents as a “Quote,” although the actual title(s) or caption(s) of the service-related document might vary.) This document contains an arbitration provision that requires, under most circumstances, disputes to be settled by arbitration and not by a judge or jury. Please read the “Arbitration” section of this Agreement carefully. This document also contains important provisions regarding your payment obligations, automatic renewal of ongoing services, limitations of liability, and other significant matters; please read this document and consider those issues carefully before accepting a Quote.

Version. Each Quote is governed under the version of this Agreement in place on the date that you accept the Quote. We may change this Agreement from time to time, and modified versions of this Agreement will apply to Quotes that you accept after the date of such modifications. You can determine the version of this Agreement by noting the “last updated” date indicated at the bottom of this document. We advise you to keep a copy of this document and keep track of the date indicated below when you accept a Quote.

Conflicts. The provisions of a Quote govern over conflicting or materially different terms contained in this Agreement.

SERVICES / IMPLEMENTATION

Services. We will provide the services described in a Quote (collectively, “Services”). The scope of our engagement with you is limited to the Services; all other projects, endeavors, undertakings, etc., are out-of-scope and will not be provided to you unless we expressly agree to do so in writing (collectively, “Out of Scope Services”). Please read both the Quote and this Agreement before accepting the Quote. If you have any questions about either of those documents or this Agreement, please do not sign the Quote and, instead, contact us for more information.

Range/Estimated Hours. The amount of time/hours required for a Service will be as indicated in the Quote; however, unless the Quote expressly indicates a “flat” or “fixed” fee, all time/hours will be good faith estimates only, and the actual amount of time/hours may vary by as much as 10%. We will not exceed more than 10% of the estimated time/hours without your prior written consent (email is sufficient for this purpose). If additional time/hours are needed and you and we are unable to arrive at a mutually agreeable increase, then either party may terminate this Agreement by providing the other party with written notice of termination.

Response Times. Unless otherwise stated in a Quote, the Services will be provided during Atypical’s normal business hours, which are currently 6 AM to 6 PM Pacific time, Monday through Friday, excluding Atypical-observed holidays.

Technical or customer support will be provided during normal business hours and during non-business hours, subject to technician availability and the severity of the support-related issue as described below. Severity levels will be determined by Atypical after consulting with the Client.

Severity Level

Business Hours Response Time

Business Hours
Begin Work

Non-Business Hours Response

Non-Business Hours Begin Work

Critical / Service Not Available

(e.g., all users and functions unavailable)

Two (2) hours after notification.

Four (4) hours after notification.

Eight (8) hours after notification.

Significant Degradation

(e.g., large number of users or business critical functions affected)

Four (4) hours after notification.

Twelve (12) hours after notification.

Eight (8) hours after notification.

Twenty-four (24) hours after notification

Limited Degradation

(e.g., limited number of users or functions affected, business process can continue).

Twelve (12) hours after notification.

Twenty-four (24) hours after notification

During Normal Business Hours Only

Small Service Degradation

(e.g., business process can continue, one user affected).

Twenty-four (24) hours after notification.

Forty-eight (48) hours after notification.

During Normal Business Hours Only

Severity Level

Business Hours Response Time

(after notification)

Business Hours
Begin Work

(after notification)

Non-Business Hours Response

(after notification)

Non-Business Hours Begin Work

(after notification)

Critical / Service Not Available

(e.g., all users and functions unavailable)

Gold

Silver

Bronze

Gold

Silver

Bronze

Gold

Silver

Bronze

Gold

Silver

Bronze

Third Party Providers/Services. Some services that you receive under a Quote may be provided to you directly by our personnel, while other services may be provided to you by third party providers, who are often referred to in the industry as “upstream providers.” (In this Agreement, we call upstream providers “Third Party Providers” and the services that Third Party Providers provide are called “Third Party Services”). We do not manage or control Third Party Providers, therefore we are not and cannot be responsible for any defect, act, omission, or failure of any Third Party Service or any failure of any Third Party Provider.

Advice; Instructions. We may offer you specific advice and directions related to the Services (“Advice”). You are strongly advised to promptly follow our Advice which, depending on the situation, may require you to make additional purchases or investments in your business at your sole cost. We are not responsible for any problems or issues caused by or related to your failure to follow our Advice promptly.

Prioritization. All Services will be scheduled and prioritized in the manner described in the Quote or, if no description is provided, then in a manner that we determine reasonable and necessary.

Change Requests. If a party desires to change the scope of the Services, then either party may offer a change request to the other party (“Change Request”). The party receiving the Change Request (“Receiving Party”) will not be required to accept the proposed changes unless the changes are mandated and required by applicable law, rule, or regulation. A Change Request will not be deemed accepted until the Receiving Party conveys its express acceptance of the Change Request in writing (email is acceptable for this purpose). Until and unless a Change Request is accepted, the Services will continue to be provided unmodified.

Authorized Contact(s). We will be entitled to rely on any directions or consent provided by your personnel or representatives who you designate to provide such directions or consent (“Authorized Contacts”). If no Authorized Contact is identified in an applicable Quote or if a previously identified Authorized Contact is no longer available to us, then your Authorized Contact will be the person (i) who accepted the Quote, (ii) anyone in your organization who has a manager, director, or “C-level” (e.g., CEO, CFO, etc.) title, and/or (iii) who is generally designated by you during our relationship to provide us with direction or guidance. We will be entitled to rely upon directions and guidance from your Authorized Contact until we are affirmatively made aware of a change of status of the Authorized Contact. We reserve the right but not the obligation to delay the Services until we can confirm the Authorized Contact’s authority within your organization.

FEES; PAYMENT

Fees. You agree to pay the fees, costs, and expenses described in each Quote (“Fees”). Generally, Atypical will invoice you in arrears for all fees and expenses incurred in the preceding calendar month. We reserve the right to require pre-payment of anticipated invoices if you repeatedly fail to pay invoices timely.

Nonpayment. Fees that remain unpaid for more than thirty (30) days when due will be subject to interest on the unpaid amount(s) from the due date until and including the date payment is received, at the lower of either 1.5% per month or the maximum allowable rate of interest permitted by applicable law. We reserve the right, but not the obligation, to suspend part or all the Services without prior notice to you if any portion of undisputed fees are not timely paid. Notice of disputes related to Fees must be received by us within sixty (60) days after the date on which an applicable invoice is delivered to you, otherwise you waive your right to dispute the Fee thereafter.

Method of Payments. The fees listed in a Quote assume that all payments will be made in cash (meaning ACH, check, or debit card). If you desire to pay by credit card, then we reserve the right to charge the full non-discounted rate to you, which will be equal to the fees plus the actual costs we incur to accept your credit card. When enrolled in an ACH payment processing method, you authorize us to electronically debit your designated checking or savings account for any payments due under the Quote. This authorization will continue until otherwise terminated in writing by you. We will apply a $20.00 service charge (or the maximum amount permitted by law, whichever is less) to your account for any electronic debit that is returned unpaid due to insufficient funds or due to your bank’s electronic draft restrictions.

LIMITATION OF LIABILITY; LIMITED WARRANTIES

This paragraph limits the liabilities arising from the Services and is a bargained-for and material part of our business relationship with you. You acknowledge and agree that Atypical would not provide any Services, or enter into any Quote or this Agreement, unless Atypical could rely on the limitations described in this paragraph. In no event will either party be liable for any indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits (except for fees due and owing to Atypical), savings, or other indirect or contingent event-based economic loss arising out of or in connection with the Services, this Agreement, any Quote, or for any breach hereof or for any damages caused by any delay in furnishing Services under this Agreement or any Quote, even if a party has been advised of the possibility of such damages; however, amounts you owe to us under this Agreement, reasonable attorneys’ fees awarded to a prevailing party (as described below), your indemnification obligations, and any amounts due and payable pursuant to the non-solicitation provision of this Agreement shall not be limited by the foregoing limitation. Except for the foregoing exceptions, a responsible party’s (“Responsible Party’s”) aggregate liability to the other party (“Aggrieved Party”) for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort, indemnification, or negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the amount of fees paid by you to Atypical for the specific Service upon which the applicable claim(s) is/are based during the six (6) month period immediately prior to the date on which the cause of action accrued, or $10,000, or the amounts that are actually paid out under a Responsible Party’s insurance policy, whichever is greater. You and we each agree that only one of the foregoing remedies may be selected by an Aggrieved Party and once selected, the selected remedy shall be the sole financial remedy available to the Aggrieved Party to the exclusion of all other remedies. The foregoing limitations shall apply even if the remedies listed in this Agreement fail of their essential purpose; however, the limitations shall not apply to the extent that such limitations are prohibited under applicable law, or to the extent that the Claims are caused by a Responsible Party’s willful or intentional misconduct, or gross negligence. Similarly, a Responsible Party’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the Aggrieved Party’s willful or intentional misconduct, gross negligence, or to the extent that the Aggrieved Party failed to reasonably mitigate (or attempt to mitigate, as applicable) the Claims. Under no circumstances shall Atypical have any liability for any claims or causes of action arising from or related to Out of Scope Services.

Except for representations or warranties that are expressly contained in this Agreement or any Quote, the Services are provided “as is” basis with no implied warranties whatsoever, including but not limited to implied warranties of merchantability or fitness for a particular purpose. Client acknowledges and agrees that the Services are based on Atypical’s own methodologies and do not guaranty any specific results. Client understands that market and other factors outside the control of Client and/or Atypical may interfere with Client experiencing any business, sales, market share, revenue, or profit growth. Client acknowledges that any growth estimates or objectives provided by Atypical in connection with the Services are illustrative and, further, Atypical does not represent or warrant that such estimates will be met or exceeded.

INDEMNIFICATION

Each party (an “Indemnifying Party”) agrees to indemnify, defend, and hold the other party (an “Indemnified Party”) harmless from and against all losses, damages, costs, expenses, or liabilities, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from, or are related to, the Indemnifying Party’s breach of this Agreement. The Indemnified Party will have the right, but not the obligation, to control the intake, defense and disposition of any claim or cause of action for which indemnity may be sought under this section. The Indemnifying Party shall be permitted to have counsel of its choosing participate in the defense of the applicable claim(s); however, (i) such counsel shall be retained at the Indemnifying Party’s sole cost, and (ii) the Indemnified Party’s counsel shall be the ultimate determiner of the strategy and defense of the claim(s) for which indemnity is provided. No claim for which indemnity is sought by an Indemnified Party will be settled without the Indemnifying Party’s prior written consent, which shall not be unreasonably delayed or withheld.

TERM; TERMINATION

Each Quote will have its own term and will be terminated only as provided in this Agreement or as explicitly provided in the Quote.

Effective Date. This Agreement applies to all Services and is effective as of the date on which we provide or facilitate a Service to you or on the date on which you accept a Quote, whichever is earlier (“Effective Date”). This Agreement will terminate automatically (i) if you or we terminate this Agreement For Cause (described below), or (ii) immediately after the last date on which we have provided the Services to you.

Term. The term of the Services will be as indicated in the applicable Quote. The termination of Services under one Quote shall not, by itself, cause the termination of (or otherwise impact) this Agreement or the status or progress of any other Services between the parties.

Termination Without Cause. Either party may terminate this Agreement or any Services for any reason by providing the other party with no less than ninety (90) days prior written notice. If the effective date of termination lands on a day other than the last day of the calendar month, then the effective date of termination will automatically be extended to the last day of the calendar month.

Termination For Cause. In the event that one party (a “Defaulting Party”) commits a material breach under a Quote or under this Agreement, the non-Defaulting Party will have the right, but not the obligation, to terminate immediately the Services under the relevant Quote (a “For Cause” termination) provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within five (5) days following receipt of written notice of breach from the non-Defaulting Party.

Client Activity as a Basis for Termination. If you or any of your staff, personnel, contractors, or representatives engages in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable to provide or facilitate the Services to you and the activity does not cease after we provide notice of the issue(s) to you, then in addition to Atypical’s other rights under this Agreement, Atypical will have the right upon providing you with five (5) days prior written notice, to terminate this Agreement. If we terminate this Agreement pursuant to this paragraph, you agree to pay us for an additional ninety (90) days of Services as if this Agreement had been terminated without cause under subsection (c) above.

Consent. You and we may mutually consent, in writing, to terminate a Quote or this Agreement at any time.

CONFIDENTIALITY

Defined. For the purposes of this Agreement, Confidential Information means all non-public information provided by one party (“Discloser”) to the other party (“Recipient”), including but not limited to customer-related data, customer lists, internal documents, internal communications, proprietary reports and methodologies, and related information. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of the Recipient, (ii) was developed independently by the Recipient, or (iii) is or was lawfully and independently provided to the Recipient prior to disclosure by the Discloser, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.

Use. The Recipient will keep the Confidential Information it receives fully confidential and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by the Discloser in writing, or (ii) as needed to fulfill its obligations under this Agreement, or (iii) as required by any law, rule, or industry-related regulation.

Due Care. The Recipient will exercise the same degree of care with respect to the Confidential Information it receives from the Discloser as it normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.

Compelled Disclosure. If a Recipient is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, and provided that it is not prohibited by law from doing so, that Recipient will immediately notify the Discloser in writing of such requirement so that the Discloser may seek a protective order or other appropriate remedy and/or waive the Recipient’s compliance with the provisions of this Section. The Recipient will use its best efforts, as directed by the Discloser and at the Discloser’s expense, to obtain or assist the Discloser in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, the Recipient may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that the Recipient has been advised, by written opinion from its counsel (which shall be shared with the Discloser), that the Recipient is legally compelled to disclose. To the extent that we are required to expend our resources to comply with a legal requirement concerning your information (such as a response to a subpoena or court order), then you agree to pay our then-current hourly rates for all time we expend in that process, as well as all non-mitigatable hard costs we incur in complying with our legal requirements.

Additional NDA. In our provision of the Services, you and we may be required to enter into one or more additional nondisclosure agreements (each an “NDA”) for the protection of a third party’s Confidential Information. In that event, the terms of the NDA will be read in conjunction with the terms of the confidentiality provisions of this Agreement, and the terms that protect confidentiality most stringently shall govern the use and destruction of the relevant Confidential Information. If in the normal provision of the Services we are in receipt of or otherwise have access to personal health information (as defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), we will be your business associate as that term is defined under HIPAA and will enter into a mutually agreeable Business Associate Agreement.

OWNERSHIP

Each party is, and will remain, the owner and/or licensor of all works of authorship, patents, trademarks, copyrights, and other intellectual property owned by such party (“Intellectual Property”), and nothing in this Agreement or any Quote conveys or grants any ownership rights or goodwill in one party’s Intellectual Property to the other party. For the purposes of clarity, you understand and agree that we own all proposals, ideas, strategies, advice, and works of authorship that we create or produce (“Atypical IP”). Subject to our receipt of all amounts due and payable to us, we hereby grant to you a non-exclusive, worldwide, perpetual, non-terminable, royalty-free, sublicensable (with multiple tires of sublicense) right to use the Atypical IP for your internal business purposes only.

ARBITRATION

Except for undisputed collections actions to recover fees due to us (“Collections”) or any amounts that qualify for small claims court jurisdiction in our local jurisdiction, all disputes, claims, or controversies arising from or related to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration before one arbitrator who is mutually agreed upon by the parties. There is no jury involved in arbitration, and by agreeing to arbitrate you are agreeing to waive any right you may have to a trial by a jury. The arbitration shall be administered and conducted by the American Arbitration Association (the “AAA”) pursuant to the AAA’s arbitration rules for commercial disputes (the “Rules”). In the event of any inconsistency between the Rules and the procedures set forth in this paragraph, the procedures set forth in this paragraph will control. The arbitrator will be experienced in commercial contracts and information technology transactions. If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the arbitration venue shall select the arbitrator. The arbitration will, to the greatest extent practicable, will take place online; however, all in-person meetings (as required by the arbitrator) will take place in our office unless we agree to a different venue. The arbitrator will determine the scope of discovery in the matter; however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. Initially, the cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs.

MISCELLANEOUS

No Fiduciary. The scope of our relationship with you is limited to the specific Services provided to you; no other relationship, fiduciary or otherwise, exists or will exist between us. If, by operation of law, a fiduciary relationship is imposed or presumed for out-of-scope services, you hereby waive that relationship and any fiduciary obligations thereunder.

No Poaching. Each party (a “Restricted Party”) acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, the Restricted Party will not, individually or in conjunction with others, directly or indirectly hire or retain the services of any of the other party’s employees with whom the Restricted Party worked (each, a “Restricted Employee”), or solicit, induce, or encourage a Restricted Employee to discontinue or reduce the scope of the Restricted Employee’s business relationship with the other party. In the event of a violation of the terms of the restrictive covenants in this section, the parties acknowledge and agree that the damages to the other party would be difficult or impracticable to determine, and in such event, if the Restricted Party does not promptly cure the situation after receiving notice of the breach from the other party, then the Restricted Party will pay the other party as liquidated damages and not as a penalty an amount equal to one hundred thousand dollars ($100,000) or the amount that the other party paid to that employee in the one (1) year period immediately preceding the date on which the Restricted Party violated the foregoing restriction, whichever is greater. In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to a party’s employees by the Restricted Party will be deemed to be a material breach of this Agreement, in which event the affected party shall have the right, but not the obligation, to terminate this Agreement or any then-current Quote immediately For Cause.

Collections. If we are required to send your account to Collections or to start any Collections-related action to recover undisputed fees, we will be entitled to recover all costs and fees we incur in the Collections process including but not limited to reasonable attorneys’ fees and costs.

Assignment. Neither this Agreement nor any Quote may be assigned or transferred by a party without the prior written consent of the other party. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, a party may assign its rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all the assets of its business or any other transaction in which ownership of more than fifty percent (50%) of its voting securities are transferred; provided, however, that the assignee expressly assumes, in writing, the assignor’s obligations hereunder.

Amendment. This Agreement and any Quote may be amended only by a written document (email or similar electronic documents are sufficient for this purpose) that is initiated by us, and that specifically refers to this Agreement or the Quote being amended and is affirmatively accepted in writing (email or electronic signature is acceptable) by you.

Time Limitations. The parties mutually agree that, unless otherwise prohibited by law, any action for any matter arising out of or related to any Service (except for issues of nonpayment by Client) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.

Severability. If any provision in this Agreement or any Quote is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity or unenforceability so that the remainder of that provision and all remaining provisions will be valid and enforceable to the fullest extent permitted by applicable law.

Other Terms. We will not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication supplied by you unless we have expressly acknowledged the other terms and, thereafter, expressly, and specifically accepted such other terms in writing.

No Waiver. The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an Agreement to waive such terms with respect to any other occurrences.

Merger. This Agreement coupled with all Quotes sets forth the entire understanding of the parties and supersedes all prior agreements, arrangements or understandings related to the Services; however, any payment obligations that you have or may have incurred under any prior or superseded agreement are not nullified by this Agreement and remain in full force and effect. Marketing materials and promotional information available at our website (including but not limited to Service descriptions, potential results, customer endorsements, etc.) are for illustrative or educational purposes only and are not intended to create, and will not be interpreted as creating, additional duties, requirements, service levels, or promises or guarantees of specific Services or specific results.

Force Majeure. Neither party will be liable to the other party for delays or failures to perform its obligations because of circumstances beyond such party’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.

Survival. The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive. If any provision in this Agreement is deemed unenforceable by operation of law, then that provision shall be excised from this Agreement and the balance of this Agreement shall be enforced in full.

Governing Law; Venue. This Agreement will be governed by, and construed according to, the laws of the state of California. You hereby irrevocably consent to the exclusive jurisdiction and venue of San Diego County, California, for all non-arbitrable claims and causes of action with us that arise from or relate to this Agreement.

No Third Party Beneficiaries. The Parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.

Usage in Trade. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties to this Agreement will be used to modify, interpret, or supplement in any manner the terms of this Agreement.

Notices; Writing Requirement. Where notice is required to be provided to a party under this Agreement, such notice may be sent by postal mail, overnight courier, or email as follows: notice will be deemed delivered three (3) business days after being deposited in postal mail, first class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by FedEx, DHL, or other overnight courier, or one (1) day after notice is delivered by email. Notice sent by email will be sufficient only if the message is sent to the last known email address of the recipient or such other email address that is expressly designated by the recipient for the receipt of legal notices. All electronic documents and communications between the parties, including email, will satisfy any “writing” requirement under this Agreement.

Independent Contractor. Atypical is an independent contractor, and is not your employer, employee, partner, or affiliate.

Counterparts. The parties intend to sign, accept and/or deliver any Quote, this Agreement, or any amendment in any number of counterparts, and each will be deemed an original and all of which, when taken together, will be deemed to be one agreement. Each party may sign, accept, and/or deliver any Quote, this Agreement, or any amendment electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature) or by reference (as applicable).

Last Updated: March 2023

SCOPE

Context. In this Agreement all references to “Client,” “you,” or “your” mean the entity who has accepted a quote, proposal, service order, or similar document (electronic or otherwise) from Atypical. (In this Agreement we refer collectively to these type of documents as a “Quote,” although the actual title(s) or caption(s) of the service-related document might vary.) This document contains an arbitration provision that requires, under most circumstances, disputes to be settled by arbitration and not by a judge or jury. Please read the “Arbitration” section of this Agreement carefully. This document also contains important provisions regarding your payment obligations, automatic renewal of ongoing services, limitations of liability, and other significant matters; please read this document and consider those issues carefully before accepting a Quote.

Version. Each Quote is governed under the version of this Agreement in place on the date that you accept the Quote. We may change this Agreement from time to time, and modified versions of this Agreement will apply to Quotes that you accept after the date of such modifications. You can determine the version of this Agreement by noting the “last updated” date indicated at the bottom of this document. We advise you to keep a copy of this document and keep track of the date indicated below when you accept a Quote.

Conflicts. The provisions of a Quote govern over conflicting or materially different terms contained in this Agreement.

SERVICES / IMPLEMENTATION

Services. We will provide the services described in a Quote (collectively, “Services”). The scope of our engagement with you is limited to the Services; all other projects, endeavors, undertakings, etc., are out-of-scope and will not be provided to you unless we expressly agree to do so in writing (collectively, “Out of Scope Services”). Please read both the Quote and this Agreement before accepting the Quote. If you have any questions about either of those documents or this Agreement, please do not sign the Quote and, instead, contact us for more information.

Range/Estimated Hours. The amount of time/hours required for a Service will be as indicated in the Quote; however, unless the Quote expressly indicates a “flat” or “fixed” fee, all time/hours will be good faith estimates only, and the actual amount of time/hours may vary by as much as 10%. We will not exceed more than 10% of the estimated time/hours without your prior written consent (email is sufficient for this purpose). If additional time/hours are needed and you and we are unable to arrive at a mutually agreeable increase, then either party may terminate this Agreement by providing the other party with written notice of termination.

Response Times. Unless otherwise stated in a Quote, the Services will be provided during Atypical’s normal business hours, which are currently 6 AM to 6 PM Pacific time, Monday through Friday, excluding Atypical-observed holidays.

Severity Level

Business Hours Response Time

Business Hours
Begin Work

Non-Business Hours Response

Non-Business Hours Begin Work

Critical / Service Not Available

(e.g., all users and functions unavailable)

Two (2) hours after notification.

Four (4) hours after notification.

Eight (8) hours after notification.

Significant Degradation

(e.g., large number of users or business critical functions affected)

Four (4) hours after notification.

Twelve (12) hours after notification.

Eight (8) hours after notification.

Twenty-four (24) hours after notification

Limited Degradation

(e.g., limited number of users or functions affected, business process can continue).

Twelve (12) hours after notification.

Twenty-four (24) hours after notification

During Normal Business Hours Only

Small Service Degradation

(e.g., business process can continue, one user affected).

Twenty-four (24) hours after notification.

Forty-eight (48) hours after notification.

During Normal Business Hours Only

Severity Level

Business Hours Response Time

(after notification)

Business Hours
Begin Work

(after notification)

Non-Business Hours Response

(after notification)

Non-Business Hours Begin Work

(after notification)

Critical / Service Not Available

(e.g., all users and functions unavailable)

Gold

Silver

Bronze

Gold

Silver

Bronze

Gold

Silver

Bronze

Gold

Silver

Bronze

Third Party Providers/Services. Some services that you receive under a Quote may be provided to you directly by our personnel, while other services may be provided to you by third party providers, who are often referred to in the industry as “upstream providers.” (In this Agreement, we call upstream providers “Third Party Providers” and the services that Third Party Providers provide are called “Third Party Services”). We do not manage or control Third Party Providers, therefore we are not and cannot be responsible for any defect, act, omission, or failure of any Third Party Service or any failure of any Third Party Provider.

Advice; Instructions. We may offer you specific advice and directions related to the Services (“Advice”). You are strongly advised to promptly follow our Advice which, depending on the situation, may require you to make additional purchases or investments in your business at your sole cost. We are not responsible for any problems or issues caused by or related to your failure to follow our Advice promptly.

Prioritization. All Services will be scheduled and prioritized in the manner described in the Quote or, if no description is provided, then in a manner that we determine reasonable and necessary.

Change Requests. If a party desires to change the scope of the Services, then either party may offer a change request to the other party (“Change Request”). The party receiving the Change Request (“Receiving Party”) will not be required to accept the proposed changes unless the changes are mandated and required by applicable law, rule, or regulation. A Change Request will not be deemed accepted until the Receiving Party conveys its express acceptance of the Change Request in writing (email is acceptable for this purpose). Until and unless a Change Request is accepted, the Services will continue to be provided unmodified.

Authorized Contact(s). We will be entitled to rely on any directions or consent provided by your personnel or representatives who you designate to provide such directions or consent (“Authorized Contacts”). If no Authorized Contact is identified in an applicable Quote or if a previously identified Authorized Contact is no longer available to us, then your Authorized Contact will be the person (i) who accepted the Quote, (ii) anyone in your organization who has a manager, director, or “C-level” (e.g., CEO, CFO, etc.) title, and/or (iii) who is generally designated by you during our relationship to provide us with direction or guidance. We will be entitled to rely upon directions and guidance from your Authorized Contact until we are affirmatively made aware of a change of status of the Authorized Contact. We reserve the right but not the obligation to delay the Services until we can confirm the Authorized Contact’s authority within your organization.

FEES; PAYMENT

Fees. You agree to pay the fees, costs, and expenses described in each Quote (“Fees”). Generally, Atypical will invoice you in arrears for all fees and expenses incurred in the preceding calendar month. We reserve the right to require pre-payment of anticipated invoices if you repeatedly fail to pay invoices timely.

Nonpayment. Fees that remain unpaid for more than thirty (30) days when due will be subject to interest on the unpaid amount(s) from the due date until and including the date payment is received, at the lower of either 1.5% per month or the maximum allowable rate of interest permitted by applicable law. We reserve the right, but not the obligation, to suspend part or all the Services without prior notice to you if any portion of undisputed fees are not timely paid. Notice of disputes related to Fees must be received by us within sixty (60) days after the date on which an applicable invoice is delivered to you, otherwise you waive your right to dispute the Fee thereafter.

Method of Payments. The fees listed in a Quote assume that all payments will be made in cash (meaning ACH, check, or debit card). If you desire to pay by credit card, then we reserve the right to charge the full non-discounted rate to you, which will be equal to the fees plus the actual costs we incur to accept your credit card. When enrolled in an ACH payment processing method, you authorize us to electronically debit your designated checking or savings account for any payments due under the Quote. This authorization will continue until otherwise terminated in writing by you. We will apply a $20.00 service charge (or the maximum amount permitted by law, whichever is less) to your account for any electronic debit that is returned unpaid due to insufficient funds or due to your bank’s electronic draft restrictions.

LIMITATION OF LIABILITY; LIMITED WARRANTIES

INDEMNIFICATION

TERM; TERMINATION

Each Quote will have its own term and will be terminated only as provided in this Agreement or as explicitly provided in the Quote.

Effective Date. This Agreement applies to all Services and is effective as of the date on which we provide or facilitate a Service to you or on the date on which you accept a Quote, whichever is earlier (“Effective Date”). This Agreement will terminate automatically (i) if you or we terminate this Agreement For Cause (described below), or (ii) immediately after the last date on which we have provided the Services to you.

Term. The term of the Services will be as indicated in the applicable Quote. The termination of Services under one Quote shall not, by itself, cause the termination of (or otherwise impact) this Agreement or the status or progress of any other Services between the parties.

Termination Without Cause. Either party may terminate this Agreement or any Services for any reason by providing the other party with no less than ninety (90) days prior written notice. If the effective date of termination lands on a day other than the last day of the calendar month, then the effective date of termination will automatically be extended to the last day of the calendar month.

Termination For Cause. In the event that one party (a “Defaulting Party”) commits a material breach under a Quote or under this Agreement, the non-Defaulting Party will have the right, but not the obligation, to terminate immediately the Services under the relevant Quote (a “For Cause” termination) provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within five (5) days following receipt of written notice of breach from the non-Defaulting Party.

Client Activity as a Basis for Termination. If you or any of your staff, personnel, contractors, or representatives engages in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable to provide or facilitate the Services to you and the activity does not cease after we provide notice of the issue(s) to you, then in addition to Atypical’s other rights under this Agreement, Atypical will have the right upon providing you with five (5) days prior written notice, to terminate this Agreement. If we terminate this Agreement pursuant to this paragraph, you agree to pay us for an additional ninety (90) days of Services as if this Agreement had been terminated without cause under subsection (c) above.

Consent. You and we may mutually consent, in writing, to terminate a Quote or this Agreement at any time.

CONFIDENTIALITY

Defined. For the purposes of this Agreement, Confidential Information means all non-public information provided by one party (“Discloser”) to the other party (“Recipient”), including but not limited to customer-related data, customer lists, internal documents, internal communications, proprietary reports and methodologies, and related information. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of the Recipient, (ii) was developed independently by the Recipient, or (iii) is or was lawfully and independently provided to the Recipient prior to disclosure by the Discloser, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.

Use. The Recipient will keep the Confidential Information it receives fully confidential and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by the Discloser in writing, or (ii) as needed to fulfill its obligations under this Agreement, or (iii) as required by any law, rule, or industry-related regulation.

Due Care. The Recipient will exercise the same degree of care with respect to the Confidential Information it receives from the Discloser as it normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.

Compelled Disclosure. If a Recipient is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, and provided that it is not prohibited by law from doing so, that Recipient will immediately notify the Discloser in writing of such requirement so that the Discloser may seek a protective order or other appropriate remedy and/or waive the Recipient’s compliance with the provisions of this Section. The Recipient will use its best efforts, as directed by the Discloser and at the Discloser’s expense, to obtain or assist the Discloser in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, the Recipient may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that the Recipient has been advised, by written opinion from its counsel (which shall be shared with the Discloser), that the Recipient is legally compelled to disclose. To the extent that we are required to expend our resources to comply with a legal requirement concerning your information (such as a response to a subpoena or court order), then you agree to pay our then-current hourly rates for all time we expend in that process, as well as all non-mitigatable hard costs we incur in complying with our legal requirements.

Additional NDA. In our provision of the Services, you and we may be required to enter into one or more additional nondisclosure agreements (each an “NDA”) for the protection of a third party’s Confidential Information. In that event, the terms of the NDA will be read in conjunction with the terms of the confidentiality provisions of this Agreement, and the terms that protect confidentiality most stringently shall govern the use and destruction of the relevant Confidential Information. If in the normal provision of the Services we are in receipt of or otherwise have access to personal health information (as defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), we will be your business associate as that term is defined under HIPAA and will enter into a mutually agreeable Business Associate Agreement.

OWNERSHIP

ARBITRATION

MISCELLANEOUS

No Fiduciary. The scope of our relationship with you is limited to the specific Services provided to you; no other relationship, fiduciary or otherwise, exists or will exist between us. If, by operation of law, a fiduciary relationship is imposed or presumed for out-of-scope services, you hereby waive that relationship and any fiduciary obligations thereunder.

No Poaching. Each party (a “Restricted Party”) acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, the Restricted Party will not, individually or in conjunction with others, directly or indirectly hire or retain the services of any of the other party’s employees with whom the Restricted Party worked (each, a “Restricted Employee”), or solicit, induce, or encourage a Restricted Employee to discontinue or reduce the scope of the Restricted Employee’s business relationship with the other party. In the event of a violation of the terms of the restrictive covenants in this section, the parties acknowledge and agree that the damages to the other party would be difficult or impracticable to determine, and in such event, if the Restricted Party does not promptly cure the situation after receiving notice of the breach from the other party, then the Restricted Party will pay the other party as liquidated damages and not as a penalty an amount equal to one hundred thousand dollars ($100,000) or the amount that the other party paid to that employee in the one (1) year period immediately preceding the date on which the Restricted Party violated the foregoing restriction, whichever is greater. In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to a party’s employees by the Restricted Party will be deemed to be a material breach of this Agreement, in which event the affected party shall have the right, but not the obligation, to terminate this Agreement or any then-current Quote immediately For Cause.

Collections. If we are required to send your account to Collections or to start any Collections-related action to recover undisputed fees, we will be entitled to recover all costs and fees we incur in the Collections process including but not limited to reasonable attorneys’ fees and costs.

Assignment. Neither this Agreement nor any Quote may be assigned or transferred by a party without the prior written consent of the other party. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, a party may assign its rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all the assets of its business or any other transaction in which ownership of more than fifty percent (50%) of its voting securities are transferred; provided, however, that the assignee expressly assumes, in writing, the assignor’s obligations hereunder.

Amendment. This Agreement and any Quote may be amended only by a written document (email or similar electronic documents are sufficient for this purpose) that is initiated by us, and that specifically refers to this Agreement or the Quote being amended and is affirmatively accepted in writing (email or electronic signature is acceptable) by you.

Time Limitations. The parties mutually agree that, unless otherwise prohibited by law, any action for any matter arising out of or related to any Service (except for issues of nonpayment by Client) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.

Severability. If any provision in this Agreement or any Quote is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity or unenforceability so that the remainder of that provision and all remaining provisions will be valid and enforceable to the fullest extent permitted by applicable law.

Other Terms. We will not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication supplied by you unless we have expressly acknowledged the other terms and, thereafter, expressly, and specifically accepted such other terms in writing.

No Waiver. The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an Agreement to waive such terms with respect to any other occurrences.

Merger. This Agreement coupled with all Quotes sets forth the entire understanding of the parties and supersedes all prior agreements, arrangements or understandings related to the Services; however, any payment obligations that you have or may have incurred under any prior or superseded agreement are not nullified by this Agreement and remain in full force and effect. Marketing materials and promotional information available at our website (including but not limited to Service descriptions, potential results, customer endorsements, etc.) are for illustrative or educational purposes only and are not intended to create, and will not be interpreted as creating, additional duties, requirements, service levels, or promises or guarantees of specific Services or specific results.

Force Majeure. Neither party will be liable to the other party for delays or failures to perform its obligations because of circumstances beyond such party’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.

Survival. The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive. If any provision in this Agreement is deemed unenforceable by operation of law, then that provision shall be excised from this Agreement and the balance of this Agreement shall be enforced in full.

Governing Law; Venue. This Agreement will be governed by, and construed according to, the laws of the state of California. You hereby irrevocably consent to the exclusive jurisdiction and venue of San Diego County, California, for all non-arbitrable claims and causes of action with us that arise from or relate to this Agreement.

No Third Party Beneficiaries. The Parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.

Usage in Trade. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties to this Agreement will be used to modify, interpret, or supplement in any manner the terms of this Agreement.

Notices; Writing Requirement. Where notice is required to be provided to a party under this Agreement, such notice may be sent by postal mail, overnight courier, or email as follows: notice will be deemed delivered three (3) business days after being deposited in postal mail, first class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by FedEx, DHL, or other overnight courier, or one (1) day after notice is delivered by email. Notice sent by email will be sufficient only if the message is sent to the last known email address of the recipient or such other email address that is expressly designated by the recipient for the receipt of legal notices. All electronic documents and communications between the parties, including email, will satisfy any “writing” requirement under this Agreement.

Independent Contractor. Atypical is an independent contractor, and is not your employer, employee, partner, or affiliate.

Counterparts. The parties intend to sign, accept and/or deliver any Quote, this Agreement, or any amendment in any number of counterparts, and each will be deemed an original and all of which, when taken together, will be deemed to be one agreement. Each party may sign, accept, and/or deliver any Quote, this Agreement, or any amendment electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature) or by reference (as applicable).

Last Updated: March 2023