Preamble
This Master Services Agreement is entered into by and between 1build Inc. (d/b/a Handoff), a Delaware corporation ("Company") and the entity or person placing an order for or accessing any Services ("Customer" or "you"). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "you" or "Customer" reference your company. Please note that if you sign up for the Services using an email address from your employer or another entity, then (1) you will be deemed to represent such party, (2) your acceptance will bind your employer or that entity to these terms, and (3) the words "Customer", "you" or "your" in this Agreement will refer to your employer or that entity.
This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from Company pursuant to any Company ordering documents, online registration, order descriptions or order confirmations referencing this Agreement ("Order Form(s)") and sets forth the terms and conditions for such products and services. This Master Services Agreement, any Order Forms, and any attachments, linked policies or documents referenced in the foregoing shall collectively be referred to as the "Agreement". "Services" means the services that Company will provide to Customer under this Agreement as described in the applicable Order Form.
The "Effective Date" of this Agreement is the earlier of (a) Customer's initial access to the Services (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
1. Services
1.1 Subject to the terms and conditions set forth in this Agreement and the applicable Order Form, Company grants to Customer a limited, non-transferable/non-assignable (except as set forth in the Agreement), non-exclusive right to access and use the Services during the term of the applicable Order Form for Customer's lawful internal business purposes solely in the form provided by Company and as permitted by the functionalities provided by Company therein.
1.2 Customer may choose to use services or features identified as "alpha," "beta," "preview," "early access," "pilot", or "evaluation," or words or phrases with similar meanings in its sole discretion, including any services identified under a pilot order form, (collectively the "Pilot Services"). Notwithstanding anything to the contrary in this Agreement or otherwise: (a) Pilot Services may not be supported and may be changed or terminated at any time without notice; (b) Pilot Services may not be as reliable or available as the Services; (c) Pilot Services have not been subjected to the same security requirements, measures, and auditing as the Services; (d) Pilot Services constitute Company's Confidential Information; and (e) PILOT SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY, INDEMNITY OR SUPPORT AND, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, COMPANY'S LIABILITY FOR PILOT SERVICES WILL NOT EXCEED TEN DOLLARS (US $10).
2. Restrictions and Responsibilities
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services ("Software"); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; remove any proprietary notices or labels; use the Services or any component thereof in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or use the Services or any component thereof for any benchmarking purpose or for the purpose of developing or assisting in the development of a product or service that competes with the Services or that utilizes functions and features similar to those of the Services. Although Company has no obligation to monitor Customer's use of the Services, Company may do so and may suspend or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any user may incur as a result of a Services suspension.
2.2 Customer shall provide Company with complete and accurate account, billing and payment information and keep such information up to date during the term of this Agreement. Customer agrees not to provide any person or entity with access to the Services using Customer's user name, password or other security information except as permitted under this Agreement and shall prevent its users from sharing their Services account access or login information with any other party, including any other Customer employee or third-party contractor. Customer is responsible for maintaining the security and confidentiality of all passwords associated with Customer's account. If Customer becomes aware of any unauthorized or illegal use of Customer's account, Customer shall immediately notify Company. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are "commercial items" and according to DFAR section 252.2277014(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 Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like, or any equipment supplied on projects or Customer's equipment selection (collectively, "Equipment"). Customer shall be responsible for supplying Company with any technical data and other information Company may reasonably request to allow Company to provide the Services. Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer's knowledge or consent.
2.4 "Third Party Products and Content" means any applications, products, services, or content that interoperates with the Service and that are provided by Customer or a third party. If Customer enables any Third Party Products and Content for use with the Services: (a) any use by Customer or its authorized users of such Third Party Products and Content is solely the responsibility of Customer and the applicable provider; (b) Company does not guarantee, warrant, or offer support for any such Third Party Products and Content; (c) Customer acknowledges that the providers of those Third Party Products and Content may have access to Customer Data in connection with the interoperation of the Third Party Products and Content with the Services, and Company will not be responsible for any use, disclosure, modification or deletion of such Customer Data. As between Customer and Company, Customer is solely responsible for reviewing and comply with such Third Party Products and Content provider's terms of use, practices, and policies ("Third Party Terms"). Company does not guarantee the continued availability of Third Party Products and Content and may cease supporting them without entitling Customer to any refund, credit, or other compensation.
2.5 The Services may incorporate functionality powered by artificial intelligence ("AI Functionality"). As between the parties, Customer shall be the owner of any output generated by Customer through Customer's prompts to the AI Functionality ("Output"). Output shall be treated as Customer Data. For the avoidance of doubt, Output does not include Usage Data, Feedback or General Knowledge. Customer acknowledges that Output may not be unique across users and the AI Functionality may generate the same or similar output for Company or a third party and that Customer shall have no right, title or interest in such same or similar output. Company has not verified (and disclaims any liability for) the accuracy, completeness or reliability of any Output. Customer will use the AI Functionality in an ethical and responsible manner, and is responsible for evaluating the Output as appropriate for its use case, including by applying human review of the Output and exercising reasonable discretion when using or relying on any Output.
3. Confidentiality; Proprietary Rights
3.1 Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services, and any Output ("Customer Data"). For the avoidance of doubt, Proprietary Information of Customer does not include any Usage Data, Operational Knowledge or Feedback, which the foregoing is Company's Proprietary Information. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. The Receiving Party acknowledges that disclosure of Proprietary Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party may be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
3.2 Customer shall own all right, title and interest in and to the Customer Data. Customer shall ensure that it is entitled to transfer the relevant Customer Data to Company so that Company and its service providers may lawfully use, process, and transfer the Customer Data in accordance with this Agreement on Customer's behalf. Customer grants Company a nonexclusive, worldwide, royalty-free right to reproduce, display, adapt, modify, transmit, distribute and otherwise use the Customer Data (a) to maintain, provide, and improve the Services under this Agreement; (b) to prevent or address technical or security issues and resolve support requests; (c) at Customer's direction or request, including processing initiated by users through their use of the Services; and (d) as otherwise required by applicable law. No rights to the Customer Data are granted to Company hereunder other than as expressly set forth in this Agreement. Without limiting the foregoing, Customer understands, agrees and consents that the Services may access and process internal communications, customer communications, operational conversations, phone transcripts, emails, calendars and other information within Customer's operational environment.
3.3 Company shall own and retain all right, title and interest in and to (a) the Services, Software, General Knowledge (as defined below in Section 3.5) and Usage Data (as defined below in Section 3.4), and all improvements, enhancements or modifications thereto, including without limitation any software, algorithms, models and systems; (b) any software, applications, inventions or other technology developed in connection with Services or support, and (c) all intellectual property rights related to any of the foregoing. If Customer provides Company with feedback, comments or suggestions (collectively referred to as "Feedback") regarding the Services or other Company offerings, Customer hereby assigns all right, title and interest in and to such Feedback to Company and Company may use the Feedback without restriction.
3.4 Notwithstanding anything to the contrary, Company may create de-identified and aggregated data based on Customer Data and collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (collectively referred to as "Usage Data"), provided such Usage Data does not identify Customer or its users. Company will be free (during and after the term hereof) to (i) use such Usage Data to improve and enhance the Services, and for other development, diagnostic, and corrective purposes including in other Company offerings, and (ii) disclose such Usage Data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.5 Customer acknowledges that Company's ability to provide the Services is dependent on Company's experiences in providing similar services to others, and that Company expects to continue such work in the future. In connection with the Services, Company may develop or derive generalized reasoning, generalized execution policies, learned business strategies, usage intelligence, operational intelligence, operational analytics, methodologies, insights and related learnings (collectively referred to as "General Knowledge"). Company retains sole and exclusive ownership of any General Knowledge, which shall be considered Company's Confidential Information.
4. Payment of Fees
4.1 Customer will pay Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the "Fees"). If Customer's use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Fees are non-refundable, except as otherwise expressly provided by Company. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or thencurrent renewal term, upon prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company's customer support department.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. If Customer is paying Fees using a credit card or any digital payment method supported by Company, Customer authorizes Company to charge Customer's account for the Services using that payment method. Customer must keep all information in its billing account current to ensure that all Fees are charged to the appropriate account and are timely paid. If Customer notifies Company to stop using a previously designated payment method and fails to designate an alternative, Company may immediately suspend use and access to the Services. Any notice from Customer changing its billing account will not affect charges Company submits to Customer's billing account before Company reasonably can act on Customer's request. Company may use a third-party intermediary to manage credit card processing. Notice (including email) from Company's third-party credit card processor declining Customer's credit card or otherwise relating to Customer's account will be deemed valid notice from Company. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company's net income.
5. Term and Termination
5.1 Subject to earlier termination as provided below, this Agreement shall commence on the Effective Date set forth above, and continue until the expiration of all Order Forms under this Agreement. Each Order Form will continue for the initial service term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the initial service term. Company may terminate this Agreement for convenience with upon fifteen (15) days written notice to Customer. Either party may terminate this Agreement (i) if the other party materially breaches any terms and conditions of this Agreement and does not cure such breach within thirty (30) days of receiving notice of such breach; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, ownership, warranty disclaimers, and limitations of liability.
6. Warranty and Disclaimer
6.1 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Customer acknowledges that the Services are in pilot, beta, experimental, or evolving form and may contain errors, interruptions, or incomplete functionality. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company's reasonable control. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. ANY AI FUNCTIONALITY MAY HALLUCINATE OR PRODUCE INCORRECT OUTPUT. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED "AS IS" AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT WARRANT CUSTOMER DATA WILL BE ACCURATE OR PRESERVED WITHOUT LOSS. COMPANY IS NOT LIABLE FOR DELAYS, FAILURES OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE COMPANY'S CONTROL. FEATURES OF THE SERVICES DESIGNED TO DETECT, FILTER OR ANALYZE DATA HAVE INHERENT LIMITATIONS. COMPANY DOES NOT GUARANTEE THAT THE SERVICES OR ANY OUTPUT OR DELIVERABLES PROVIDED WILL BE ACCURATE. CUSTOMER RETAINS FULL RESPONSIBILITY FOR DETERMINING AND VERIFYING THE MATERIALS SUPPLIED ON ANY PROJECT. CUSTOMER IS SOLELY RESPONSIBLE FOR ITS OWN DATA USE AND HANDLING POLICIES, BUSINESS DECISIONS, AND REGULATORY COMPLIANCE. COMPANY DOES NOT GUARANTEE SPECIFIC BUSINESS OUTCOMES, PERFORMANCE IMPROVEMENTS OR RESULTS. THE SERVICES MAY GENERATE RECOMMENDATIONS OR OTHER OUTPUT, HOWEVER THESE DO NOT CONSTITUTE LEGAL, TAX, FINANCIAL OR OTHER PROFESSIONAL ADVANCE OR ANY OTHER SORT OF ADVICE OR RECOMMENDATION, AND CUSTOMER SHOULD NOT TREAT IT AS SUCH. CUSTOMER IS SOLELY RESPONSIBLE FOR REVIEWING AND VALIDATING OUTPUTS GENERATED OR FACILITATED THROUGH THE SERVICES PRIOR TO ANY IMPLEMENTATION OR USE. CUSTOMER IS SOLELY LIABLE, AND COMPANY SHALL HAVE NO LIABILITY, FOR ANY ACTIONS OR LACK OF ACTION PERFORMED BY THE SERVICES OR ANY RELATED BUSINESS OUTCOMES.
7. Indemnity
7.1 Company shall indemnify and hold harmless Customer, its affiliates and licensors and their respective officers, directors, employees, contractors, agents, licensors and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) resulting from any third-party claim against Customer alleging that Customer's use of the Services as permitted hereunder infringe or misappropriate a third party's valid U.S. patent, copyright, trademark or trade secret. If the Services, or parts thereof, become, or in Company's opinion may become, the subject of an infringement claim, Company may, at its option: (a) procure for Customer the right to continue using the Services as set forth herein; (b) replace or modify the Services to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Company, terminate this Agreement and refund Customer, on a pro-rated basis, any pre-paid Fees for any Services not received. Company will have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by Customer; (ii) modification of the Services by anyone other than Company or its authorized agents; (iii) the combination, operation, or use of the Services with other hardware or software not provided by Company or its authorized agents where the Services would not by itself be infringing; (iv) continued use of the allegedly infringing Services after being provided non-infringing alternative or after Company has terminated the Agreement in accordance with this Section 7.1; (v) Customer Data or Customer's use of Third Party Products and Content; or (vi) any breach of Customer's obligations under this Agreement. This Section 7.1 states Company's entire liability and Customer's sole remedy with respect to any infringement of intellectual property rights by the Services.
Customer shall indemnify and hold harmless Company, its affiliates and licensors and their respective officers, directors, employees, contractors, agents, licensors and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) resulting from (a) Customer's violation of this Agreement or any Third Party Terms, (b) Customer's use of the Services or any Third Party Products and Content, (c) Customer Data or Customer's use of any Output, and (d) Customer's violation of any third party right, breach of applicable law, negligence or willful misconduct.
7.2 The indemnification obligations in this Section shall be subject to the indemnified party: (i) promptly notifying the indemnifying party in writing upon receiving notice of any threat or claim of such action; (ii) giving the indemnifying party exclusive control and authority over the defense and/or settlement of such claim (provided any such settlement unconditionally releases the indemnified party of all liability); and (iii) providing reasonable assistance requested by the indemnifying party, at the indemnifying party's expense.
8. Limitation of Liability
8.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, BUSINESS INTERUPTION, OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A ITS REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Miscellaneous
9.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement, and any disputes arising out of or related hereto, will be governed by the laws of the State of Texas, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. Any claim or cause of action arising out of or relating to this Agreement shall only be brought in the state or federal courts located in Austin, Texas, and the Parties agree to the exclusive personal jurisdiction of such courts. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. This Agreement is not assignable, transferable or sublicensable by Customer except with Company's prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. 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, except as otherwise provided herein, all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Company reserves the right to update or modify this Agreement from time to time as its business evolves by posting an updated version of this Agreement on its website. By continuing to utilize the Services after the effective date of any update to this Agreement, Customer and its users will be deemed to have accepted such update. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. 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; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Company may include Customer's name and logo on its website or in other marketing materials or channels solely to reference Customer as Company customer. Further, in consideration of the Services provided hereunder, upon Company's reasonable request, Customer agrees to participate in a case study or testimonial relating to Customer's use of the Service, which may be published on Company's website or other marketing collateral and circulated to the general public. Customer agrees to reasonably cooperate with Company to serve as a reference account upon request.