Master Service Agreement
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. In case of a conflict between the terms of this MSA and the terms of and Service Order, the terms of the Service Order shall govern.
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 (The “Term”). During the Term, this MSA may only be terminated by you in the case of LD’s Material Breach of this MSA. In the event of any termination, (a) you will remain liable for any amount due under any applicable Service Order (adjusted on a pro rata basis, if applicable) and (b) LD will wind up its work in a commercially reasonable manner and preserve and deliver to you all paid-for Deliverables. 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 which is not cured fourteen (14) days following the delivery of written notice to LD of such a failure. This agreement, or any Service Order, can be terminated by LD at its convenience upon not less than three (3) days notice. Upon termination of a Service, all rights and licenses granted to you with respect to that Service shall immediately terminate. You shall be responsible to pay all amounts due and owing upon termination. Both parties shall return any of the other party’s intellectual property used in the delivery of the Services within ninety (90) days of the date of termination.
2. FEES; 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 of the invoice. 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 five (5) business days of such resolution. You shall be solely responsible for the payment of, and shall pay when due and indemnify LD against, all applicable federal and state taxes, and payments to LD under this Agreement (except for taxes assessed on LD’s net income).
3. SERVICES: SPECIFICATIONS, USE, CONTENT
- Pursuant to each Service Order, LD will provide data management services (the “Services”) for the benefit of you using LD’s proprietary software and labor-on-demand solution (collectively, the “LD Platform”). The specifications for the Service and any software, designs, content, inventions, materials or other deliverables developed in whole or in part by LD or otherwise provided to 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 exceptions must be approved by the parties in writing.
- Use of the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material (including material that may be considered threatening or obscene) is expressly prohibited. You will not run Maillist, Listserv, any form of auto-responder, or “spam” on the Services, or any processes that run or are activated while you are not logged on to the Services, or that otherwise interfere with the proper working of or place an unreasonable load on the Services’ infrastructure. Further, the use of manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any portion of the Services is strictly prohibited. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of the Services.
- Content: The Services and its contents are intended solely for the personal, non-commercial use of Services users and may only be used in accordance with the terms of this Agreement. All materials displayed or performed on the Services (the “Content,”) are protected by copyright. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use or exploit in any manner, for any purposes whatsoever, any Content or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right.
You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section 2), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part. You may download or copy the Content (and other items displayed on the Services for download) for personal non-commercial use only, provided that you maintain all copyright and other notices contained in such Content. You shall not store any significant portion of any Content in any form. Copying or storing of any Content other than personal, noncommercial use is expressly prohibited without prior written permission from LD or from the copyright holder identified in such Content’s copyright notice. If you link to the Website, LD may revoke the right to so link at any time.
Under no circumstances will LD be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted, or otherwise made available via the Services.
LD reserves the right to perform routine system maintenance and systems updates during off-hours (normally between 9 PM and 5 AM PT). Any longer maintenance period will be posted on LD’s website.
5. INTELLECTUAL PROPERTY
The www.leandatainc.com website and domain name and any other linked pages, features, content, or application services offered from time to time by Company in connection therewith (collectively, the “Website”) are owned and operated by Company, and are considered for the purposes of this Agreement to be part of the LD Platform. You agree not to copy, alter, modify, or create derivative works of the LD Platform or otherwise use the LD Platform in any way that violates the use restrictions contained in this Agreement. You shall retain all right, title and interest in and to all documents, messages, graphics, images, files, data and other information transmitted by you to LD in connection with the Service (collectively, the “Client Data”) as well as all Deliverables, provided, however, that you hereby grant to LD a worldwide, royalty-free, non-exclusive license to use the Client Data solely for the purposes of fulfilling its obligations hereunder. Notwithstanding the foregoing, Client Data does not include non-identifiable aggregate data compiled by LD for market research purposes. You agree that LD may use your name and logos in LD’s advertising, marketing, and sales materials in any non-disparaging manner, and therefore you grant LD a limited license to use your name and logo in accordance with the foregoing.
6. REPRESENTATIONS AND WARRANTIES
Warranties a. 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: which users gain access to the Services; what Content you access via the Services; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release LD from all liability for you having acquired or not acquired Content through the Services. The Services may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. LD makes no representations concerning any content contained in or accessed through the Services, and LD will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services. b. LD MAKES NO 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, AND YOU ASSUMES ALL RISK AND RESPONSIBILTY WITH RESPECT THERETO. c. Each party hereby represents and warrants to the other party that: (a) it has the full right, power and authority to enter into his Agreement; and (b) this agreement is a valid binding obligation of such party. d. You warrant, represent and agree that you will not contribute any Content or otherwise 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) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program. LD reserves the right to remove any Content from the Services at any time, for any reason, or for no reason at all.
Each party shall indemnify, defend and hold harmless the other party and its officers, directors, shareholders, employees and agents (“Indemnified Parties”) from and against claims and proceedings for actual damages or losses (including legal fees and expenses) arising out of any actual or alleged: (i) breach by such party of its obligations hereunder; (ii) negligence or willful misconduct of such party or its employees, officers or agents; (iii) failure of such party to comply with applicable law; or (iv) claims in which one party is named or joined with the other party when such party has not engaged in any wrongful acts. In addition, you shall indemnify, defend and hold harmless LD Indemnified Parties for any act or omission taken by LD pursuant to your instructions. The Indemnified Parties will promptly notify the indemnifying party of any claim. The indemnifying party shall assume and have sole control of the defense of such claim; provided, however, that neither party may settle any claim without the prior written consent of the other party if such settlement exposes the other party to any liability.
8. 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 the Service Order; (b) any statistics or other user data relating to the Service which specifically identify you; and/or (c) any information designated in writing, or orally at time of disclosure, by the disclosing party as “confidential” or “proprietary.” During the term of this Agreement, and for two (2) years following termination, neither party will, subject to the licenses granted in Section 6 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 7 hereby supersede any prior written or oral agreements between the parties regarding confidentiality or nondisclosure.
- Assignment. LD may assign any of its rights and obligations in connection with the provision of Services without your prior written consent. You may not assign any of your rights and obligations hereunder without the prior written consent of LD. This MSA shall be binding upon and shall inure to the benefit of a party’s authorized successors and assigns.
- 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., #106, 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.
- 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.
- Amendment. LD may amend the terms of this MSA at any time by: (i) posting revised MSA at http://www.leandatainc.com/terms-of-use.html and/or (ii) sending information regarding the amendment to your designated contact via email and/or in writing. You are responsible for regularly reviewing this site to obtain timely notice of such amendments. You shall be deemed to accept the amended MSA of Service by your continued receipt of Services if you do not notify LD of your good faith objection within thirty (30) days after such amended terms and conditions have been posted. If LD does not agree to waive the amended terms and conditions to which you object, either party shall have the right to immediately terminate Services without penalty. Except as set forth herein, 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.
- Interactions with Third Parties. The Services may contain links to third party websites or services (“Third Party Services”) that are not owned or controlled by LD. When you access Third Party Services, you do so at your own risk. You hereby represent and warrant that you have read and agree to be bound by all applicable policies of any Third Party Services relating to your use of the Services and that you will act in accordance with those policies, in addition to your obligations under this Agreement. LD has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any Third Party Services. In addition, LD will not and cannot monitor, verify, censor or edit the content of any Third Party Service. By using the Services, you expressly relieve and hold harmless LD from any and all liability arising from your use of any Third Party Service.
Your interactions with organizations and/or individuals found on or through the Services are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that LD shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on this site, or between users and any third party, you understand and agree that LD is under no obligation to become involved. In the event that you have a dispute with one or more other users or third parties, you hereby release LD, its officers, employees, agents, and successors in rights from claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
- 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.
- 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. You and LD agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California.
- 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.
- 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.
- Survival. The following Sections shall survive the termination of all Service Orders: Effect of Termination, Intellectual Property, Warranty, Indemnification, Limitation of Liability, Confidentiality, Privacy, Notices, Governing Law, Disputes, 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.
Effective Date: APRIL 4, 2012