This Master Service Agreement (“MSA”) governs LeanData, Inc.’s (“LD”) provision of services to you, the client, and shall be read in conjunction with each Service Order (“Service Order”), which identifies the services (defined below) purchased by you (“you” or “Company”). In case of a conflict between the terms of this MSA and the terms of a Service Order, the terms of the Service Order shall govern.
1. TERM AND TERMINATION
a. Term. This MSA shall become effective on the date of the Service Order and shall continue until the expiration of the last Service Order issued and accepted hereunder, unless otherwise terminated as provided below (the “Term”).
b. Termination. During the Term, you may terminate this MSA and/or the accompanying Service Order: (i) immediately, in the case of LD’s Material Breach of this MSA; (ii) upon sixty (60) days’ prior written notice for any other reason; (iii) or as set forth in the corresponding Service Order. For the purpose of this Section, “Material Breach” shall mean LD’s failure to provide the Deliverables in accordance with the specifications in any Service Order that is not cured fourteen (14) days following the delivery of written notice to LD of such a failure, or any breach of LD’s representations or warranties. LD may terminate this MSA and the accompanying Service Order immediately for your breach of your obligations under this MSA.
c. Effect of Termination. In the event of termination for reasons other than LD’s Material Breach: (i) you will remain liable for any amount due under any applicable Service Order; (ii) LD will not refund any prepaid fees; and (iii) LD will wind up its work in a commercially reasonable manner and preserve and deliver to you all paid-for Deliverables (if any are specified in the accompanying Service Order). In the case of termination for LD’s Material Breach, LD will provide a pro-rated refund of any prepaid fees and will wind up its work in a commercially reasonable manner and preserve and deliver to you all paid-for Deliverables (if any are specified in the accompanying Service Order). Upon termination of a Service, all rights and licenses granted to you with respect to that Service shall immediately terminate. Both parties shall return any of the other party’s intellectual property and all confidential information used in the delivery of the Services within ninety (90) days of the date of termination.
2. FEES AND PAYMENT
You shall pay LD the fees (“Fees”) listed in the relevant Service Order pursuant to the payment method set forth therein (unless otherwise specified). All undisputed Fees shall be paid net thirty (30) days from the invoice date (unless otherwise specified). You must submit written notice to LD and provide supporting documentation as to any Fees you dispute within thirty (30) days from the date an invoice is received. LD shall provide a written response within thirty (30) days of the date of the notice. Upon resolution, you shall pay any and all outstanding amounts due and owing within fifteen (15) business days of such resolution. You shall be solely responsible for the payment of, and shall pay when due all applicable federal and state taxes, to LD under this Agreement (except for taxes assessed on LD’s net income), provided all such taxes for the particular period are included by LD on the corresponding invoice with respect to the Services. LD reserves the right to charge additional Fees for any services added in subsequent Service Orders and/or Change Orders.
3. SERVICES: LICENSE, RESTRICTIONS
a. Subscriptions Services/Deliverables. Pursuant to each Service Order, LD will provide data management services and Deliverables (as defined below) (collectively, the “Subscription Services”) for the benefit of you using LD’s proprietary software (the “LD Platform”). The specifications for the Service and any content, materials or other deliverables developed by LD specifically for you, in connection with this Agreement (and associated intellectual property rights) (collectively “Deliverables”) will be set forth on the applicable Service Order. For the avoidance of doubt, “Deliverables” shall not include the LD Platform. Any such Deliverables shall become your property upon payment to LD and subsequent delivery to you.
b. Professional Services. “Professional Services” means fee-based setup, implementation, configuration, consulting, training, content development and other services (other than the Subscription Service) that LD provides pursuant to a Service Order. LD will perform the Professional Services set forth in the applicable Service Order executed by the Parties, which shall include and/or specify a description of the Professional Services to be provided to you, the timeline for the performance of Professional Services, and the applicable Fees and payment terms. If either LD or you request a change in the scope of Professional Services or Platform Improvements, any agreed-upon changes, including changes in Fees and expenses, will not be binding against either Party unless set forth in a writing executed by the Parties (each, a “Change Order”).
c. License. Subject to the terms and conditions of this Agreement, and any applicable Service Order, LD hereby grants you a limited, worldwide, non-exclusive, non-transferable right and license under its applicable intellectual property rights to use the Services and the LD Platform during the term of this Agreement.
d. Restriction of Use. You agree that you will not use the Services in a manner that (i) infringes or violates the intellectual property rights or other rights of LD or any third party; (ii) violates any law or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any employee or representative of LD; or (vi) transmits a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program to the Website. You further agree not to decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the LD Platform; or make any modification, adaptation, improvement, enhancement, translation, or derivative work from the LD Platform.
4. INTELLECTUAL PROPERTY
The www.leandata.com website and domain name and any other linked pages, features, content, or application services offered from time to time by LD in connection therewith (collectively, the “Website”), and the LD Platform are the property of LD. For the purposes of this Agreement, the Website is considered to be part of the LD Platform. You shall retain all right, title and interest in and to: (i) all documents, messages, graphics, images, files, data, confidential information and other information that is created by you using the Service or the LD Platform, transmitted to, or collected by, LD in connection with the Service or by the LD Platform (collectively, the “Client Data”), and (ii) all Deliverables. You hereby grant to LD a limited, worldwide, royalty-free, non-exclusive license to use the Client Data and Deliverables solely for the purposes of providing the Service to you during the Term.
5. REPRESENTATIONS AND WARRANTIES
a. Each party hereby represents and warrants to the other party that: (a) it has the full right, power and authority to enter into this Agreement; and (b) this Agreement is a valid binding obligation of such party.
b. LD warrants, represents and agrees that the Services and the LD Platform, as utilized pursuant to the terms of this Agreement: (i) do not and will not violate any law or regulation; (ii) will not transmit a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program to your systems; and (iii) will be performed in a workmanlike manner in accordance with generally accepted industry standards.
c. LD has no special relationship with or fiduciary duty to you. You acknowledge that LD has no control over, and no duty to take any action regarding (other than log-in authentication): which of your users gain access to the Services; how you may interpret or use the Services; or what actions you may take as a result of having used the Services.
d. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, LD MAKES NO (AND HEREBY DISCLAIMS) WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. LD DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICE.
a. LD’s IP Indemnification. LD shall defend, indemnify and hold you harmless against any loss, damage or costs (including reasonable attorneys’ fees) actually payable to unaffiliated third parties arising from claims, demands, suits, or proceedings (“Claims”) brought against you by such third parties alleging that the use of the Services as contemplated hereunder infringes the valid United States patent, copyright, trademark or trade secret of such a third party; provided, that you (a) promptly give written notice of any such Claim to LD; (b) give LD sole control of the defense and settlement of the Claim; and (c) provide to LD, at LD’s cost, all reasonable assistance. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by LD, (ii) resulting in whole or in part in accordance from your specifications or data/content, (iii) that are modified or combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where you continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (v) where your use is not strictly in accordance with this Agreement and all related documentation, or (vi) any breach of this Agreement by or fault of yours.
b. Your Indemnification. You will indemnify LD from all damages, costs, settlements, attorneys’ fees and expenses related to any and all Claims: (i) of infringement or misappropriation excluded from LD’s foregoing indemnity obligations, and/or (ii) arising out of your breach of Section 3.c.
7. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS, LOSS OF DATA OR COST OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH ANY AGREEMENT BETWEEN THE PARTIES, THE LD PLATFORM OR THE SERVICES PERFORMED THEREUNDER UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION LD SHALL ONLY BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) FOR ANY DIRECT DAMAGES IN AMOUNT EQUAL TO (A) ACTUAL DAMAGES OR (B) THE FEES PAYABLE TO LD FOR THE SERVICE(S) GIVING RISE TO THE CLAIM DURING THE CALENDAR YEAR IN WHICH THE EVENT OCCURS, WHICHEVER IS LESS.
“Confidential Information” shall mean (a) the content of this Agreement and any Service Order; (b) any statistics or other user data relating to the Service which specifically identify you, including Client Data; (c) any information designated in writing, or orally at time of disclosure, by the disclosing party as “confidential” or “proprietary” and/or (d) any non-public information disclosed by a party to the other hereunder. During the term of this Agreement, and for two (2) years following termination, neither party will, subject to the licenses granted in Section 3 above, use or disclose any Confidential Information of the other party except as specifically contemplated herein. The foregoing restriction does not apply to information that: (a) is independently developed by the receiving party without access to the other party’s Confidential Information; (b) becomes publicly known through no breach of this Section by the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure; (d) has been approved for release in writing by the disclosing party; or (e) is required to be disclosed by a legal or government authority. LD agrees that it shall maintain safeguards as necessary, in its reasonable judgment, to ensure that Client Data is not used or disclosed except as provided herein. For the avoidance of doubt, the parties agree that the provisions of this Section 8 hereby supersede any prior written or oral agreements between the parties regarding confidentiality or nondisclosure. LD shall implement the Service as “Anonymous” which means LD shall not store any of your data, and shall not have access to your data unless you choose to send it to LD.
a. Assignment. Neither party may assign any of its rights or obligations hereunder without the prior written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, either party may assign or transfer this MSA in connection with a merger or acquisition provided the assigning party provides notice to the other party. This MSA shall be binding upon and shall inure to the benefit of a party’s authorized successors and permitted assigns.
b. Notices. All notices shall be made in writing and delivered (i) in person, (ii) by certified mail, return receipt requested, (iii) by traceable overnight delivery or (iv) by electronically confirmed facsimile or electronic mail, followed immediately by U.S. Mail to LD at 111 West Evelyn Ave., #210, Sunnyvale, CA 94086, Attn: Vice President of Sales, or to you at the address listed on the Service Order. A signed receipt shall be obtained where a notice is delivered in person. Notice will be effective upon delivery.
c. Force Majeure. Neither party shall be liable in any way for any delay or any failure of performance of a Service, or for any loss or damage related thereto, due to any cause beyond its reasonable control, including, without limitation, acts of nature, terrorism, civil unrest, war (whether declared or not) or the Government, earthquakes, fire, floods, degradation or disruption of any communication service not under a party’s control, loss of electrical power, congestion, failure or other inability to access the Internet or disruption in the financial markets or the banking system, provided prompt notice thereof is given to the other party.
d. Amendment. The terms of this MSA, as well as those set forth in any Service Order, may not be amended except in writing signed by both parties.
e. Publicity. LD may identify you as a user of the Subscription Services by referencing your name and logo, provided that such reference is consistent with your generally applicable branding guidelines and that LD will cease making such references after receiving written notice from you to do so.
f. Waiver. Any waiver of any provision set forth herein, or any Service Order shall be effective only if in writing and signed by both parties. Failure of either party to insist on performance of any term or condition, or to exercise any right or privilege, shall not be construed as a continuing or future waiver of such term, condition, right or privilege.
g. Governing Law. Any claims arising under or related to the provision of Services shall be governed by the laws of the State of California, without regard to its conflicts of laws principles. The parties hereby agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California.
h. Severability. If any provision in this MSA or any related Service Order is held to be invalid or unenforceable, such provision shall be deemed deleted and the remaining provisions shall continue in full force and effect.
i. Entire Agreement. This MSA and any related Service Order constitute the full and complete understanding and agreement of the parties relating to the subject matter hereof and supersede all prior understandings and agreements relating to such subject matter. In case of a conflict between this MSA and any Service Order, the Service Order shall prevail. In addition to the foregoing, this MSA, and any Service Order shall prevail over any additional or different provisions in any purchase order, acceptance notice, or other similar document issued by you, which provisions shall be of no force or effect.
j. Survival. The following Sections shall survive the termination of all Service Orders: Term/Termination, Intellectual Property, Warranty, Indemnification, Limitation of Liability, Confidentiality, Notices, Governing Law, Entire Agreement and Survival.
If you have any questions, complaints, or claims with respect to the Services, you may contact us at firstname.lastname@example.org.