Master Service Agreement
This agreement (“Agreement”) is entered into on , (the “Effective Date”) between Lets Enhance INC, with offices at 35 Winding Way, San Carlos, CA (“LE”), and the Client listed above (“Client”). This Agreement includes and incorporates the Service Order Form, as well as the accompanying Terms and Conditions, and contains, among other things, warranty disclaimers, liability limitations, and use limitations. In the event of any inconsistency between this Agreement, the applicable Service Order Form, and the Terms and Conditions, the terms of this Agreement shall govern and control. There will be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof. Each party’s acceptance of this Agreement was and is expressly conditional upon the other’s acceptance of the terms contained in the Agreement to the exclusion of all other terms.
TERMS AND CONDITIONS
1.1. Subject to the terms and conditions of this Agreement, LE will provide Client with access to the services through the Internet (the “Services”). The Services are subject to modification from time to time at LE’s sole discretion, for any purpose deemed appropriate by LE. LE will use commercially reasonable efforts to give Client prior written notice of any such modification (with email or electronic notification being sufficient).
1.2. LE reserves the right to suspend Client’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) if Client is in breach of this Agreement.
2. Restrictions and Responsibilities
2.1. Client will not, and will not permit any third party to: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code or underlying structure, ideas, or algorithms of the Services or any software, documentation, or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own use; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity or defamation.
2.2. In consideration of receiving access to the Services, Client will pay LE fees as described in the attached Service Order Form. If Client does not meet these obligations LE reserves the right to suspend Client’s access to the Services and/or terminate this Agreement. Client agrees that time is of the essence with respect to its payment obligations.
2.3. Client will cooperate with LE in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as LE may reasonably request. Client will also cooperate with LE in establishing a password or other procedures for verifying that only designated employees of Client have access to any administrative functions of the Services. Client will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Client may change the individual designated as Primary Contact at any time by providing written notice to LE.
2.4. Client is solely responsible for ensuring that (a) it has all rights and authorizations necessary to provide the data to LE and for LE’s use of such data to be in compliance with all applicable laws, including, without limitation, laws relating to data privacy.
2.5. Client hereby agrees to indemnify and hold harmless LE against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Client’s use of Services in a manner that does not comply with the terms of this Agreement. Although LE has no obligation to monitor the content provided by Client or Client’s use of the Services, LE may do so and may remove any such content or prohibit any use of the Services it believes may be (or colorably alleged to be) in violation of the foregoing. LE hereby agrees to indemnify and hold harmless Client against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from LE’s breach of this Agreement.
2.6. Client will be responsible for maintaining the security of Client account, passwords (including but not limited to administrative and user passwords), and files, and for all uses of Client account with or without Client’s knowledge or consent.
2.7. Client acknowledges and agrees that the Services operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). LE is not responsible for the operation of any Third-Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Client is solely responsible for procuring any and all rights necessary for it to access Third Party Services procured by Client and for complying with any applicable terms or conditions thereof. LE does not make any representations or warranties with respect to Third Party Services not procured by LE or any such third-party providers. Any exchange of data or other interaction between Client and a third-party provider is solely between Client and such third-party provider and is governed by such third party’s terms and conditions.
2.8. LE will maintain then-current industry best standards for administrative, physical, and technical safeguards designed for the protection, confidentiality, and integrity of Client Data.
2.9. When using the Services, Client shall not exceed the limits of 4 requests per second and 120 requests per minute, provided that the image size doesn't exceed 12 megapixels or such differing number of requests as may be set forth in the then applicable Service Order Form.
3.1. Client understands that LE has disclosed or may disclose information relating to LE’s technology or business (hereinafter referred to as “Proprietary Information”), including, without limitation, the software provided for testing and the existence, terms and conditions of this Agreement. LE understands that Client has disclosed or may disclose information relating to Client’s technology or business (hereinafter referred to as “Proprietary Information”), including, without limitation, the software provided for testing and the existence, terms, and conditions of this Agreement.
3.2. Client and LE each agree: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that Client and LE each takes with its own proprietary information, but in no event will Client apply less than reasonable precautions to protect such Proprietary Information. Nothing in this Agreement will prevent Client or LE from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that Client or LE gives the other party hereto, if legally permissible, reasonable prior notice of such disclosure to contest such order.
4. License and Intellectual Property Rights
If LE provides Сlient with any software or other executable intellectual property (including but not limited to the SDK – in all, the “Software”), LE will, for the payment of all fees due hereunder, provide Client with a limited, non-exclusive, worldwide, non-assignable or non-transferable license to use the Software for the duration of this Agreement. Except as expressly set forth herein, LE alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service, the Software, and/or any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Client or any third party relating to the Service and/or the Software. Client shall and shall cause any applicable third party to, assign any and all suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided to LE by such party. Client will not copy, distribute, reproduce, or use any of the foregoing except as expressly permitted under this Agreement. LE will obtain and process data and/or content provided by or on behalf of Client (“Data”) only to perform its obligations under this Agreement and to modify or improve the Services. Client and its licensors shall (and Client hereby represents and warrants that they do) have and retain all rights, title, and interest (including, without limitation, sole ownership of) all Data provided to LE and the intellectual property rights with respect to that Data. If LE receives any notice or claim that any Data, or activities hereunder with respect to any Data, may infringe or violate the rights of a third party (a “Claim”), LE may (but is not required to) suspend activity hereunder with respect to that Data and Client will indemnify LE from all claims, liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred. This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Service or Software, or any intellectual property rights. Any access or right not specifically granted to Client by LE hereunder is reserved by LE.
5.1. Subject to earlier termination as provided below, this Agreement is for the Service Term as specified in the Service Order Form.
5.2. LE may, at its option and in its sole discretion, limit, suspend, and/or terminate the Services or this Agreement at any time for reasons which may include but are not limited to: (i) Client’s failure to remit payment on the due date therefore, (ii) may be terminated by either party in the event of a material breach by the other party of their obligations hereunder upon the provision of thirty days prior written notice, during which such breaching party shall have the opportunity to cure (if curable). For the avoidance of doubt, failure to remit payment when due hereunder or a breach by Client of Sections 3 and/or 4 shall constitute a material breach. If this Agreement is terminated for convenience, any and all fees which may be due shall be immediately due and payable.
5.3. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
6. Warranty Disclaimer
EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SERVICES AND PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. LE (AND ITS AGENTS, AFFILIATES, LICENSORS, AND SUPPLIERS) HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, OR IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE
7. Limitation of Liability
IN NO EVENT WILL LE (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF LE HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. EXCEPT WITH RESPECT TO INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, THE TOTAL LIABILITY OF LE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF THE AMOUNT PAID TO LE BY CLIENT PURSUANT TO THE SERVICE ORDER FORM OR ONE THOUSAND DOLLARS. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8. U.S. Government Matters
Notwithstanding anything else, Client may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Client acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is a representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by LE are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sublicensable by Client. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind LE in any respect whatsoever, and vice versa. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. LE will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of Delaware, U.S.A. without regard to its conflict of law’s provisions.
10. Dispute Resolution
In the event of a dispute between LE and Client (including any dispute over the validity, enforceability, or scope of this dispute resolution provision), other than with respect to claims for injunctive relief, the dispute will be resolved by binding arbitration pursuant to the rules of the American Arbitration Association Commercial Arbitration Rules. The place of the arbitration shall be in the County of Los Angeles, California. In the event that there is any dispute between LE and Client that is determined not to be subject to arbitration pursuant to the preceding sentence, each party agrees to submit in that event to the exclusive jurisdiction and venue of the state and federal courts located in the County of Los Angeles, California. Client agrees that this Agreement and the relationship between LE and Client shall be governed by the Federal Arbitration Act and the laws of the State of Delaware without regard to conflict of law principles or the United Nations Convention on the International Sale of Goods. Notwithstanding this, either party shall still be allowed to apply for injunctive or other equitable relief to protect or enforce that party’s intellectual property rights in any court of competent jurisdiction where the other party resides or has its principal place of business. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Class arbitrations, class actions, private attorney general actions, consolidation of your dispute with other arbitrations, or any other proceeding in which either party acts or proposes to act in a representative capacity or as a private attorney general are not permitted and are waived by Client, and an arbitrator will have no jurisdiction to hear such claims. If a court or arbitrator finds that the class action waiver in this section is unenforceable as to all or some parts of a dispute, then the class action waiver will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of this dispute resolution section is found to be illegal or unenforceable, that provision will be severed with the remainder of this section remaining in full force and effect.