Terms of service

This Master Subscription Agreement (this “MSA”) is entered into by and between Mage Technologies, Inc., a California corporation with offices at 2010 El Camino Real #2073 Santa Clara, CA 95050 (“Mage”), and the individual or entity entering into this Agreement (“Customer”) as of the date Customer clicks to accept this MSA, accesses or uses the Service, or authorizes or permits any Authorized User to access or use the Service (the “Effective Date”). By clicking to accept this Master Subscription Agreement or otherwise accessing or using the Service, or authorizing or permitting any Authorized User to access or use the Service, Customer agrees to be bound by this Agreement. If the individual entering into this Agreement is doing so on behalf of a company, organization or other legal entity, such individual is agreeing to this Agreement for that legal entity and representing to Mage that such individual has the authority to bind such legal entity to this Agreement, in which case the term “Customer” refers to such legal entity. If the individual agreeing to this Agreement does not have authority to enter into this Agreement, if Customer does not agree with this Agreement, there will be no agreement entered into between Mage and Customer and Customer must not use or authorize any use of the Service. Certain features of the Services may be subject to additional guidelines, terms, or rules, which will be posted on the Services in connection with such features (“Supplemental Terms”), all of which are incorporated herein by reference.

Services and API

Authorization

Subject to Customer’s ongoing compliance with the terms of the Agreement, Mage hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, internal right to access and use, and allow Authorized Users to access and use, the Service and Dashboard solely for Customer’s internal business purposes in accordance with any Service Plan and subject to the terms of this Agreement and any limitations set forth in the Order or any Supplemental Terms.

API License

Subject to Customer’s ongoing compliance with the terms of the Agreement (including the terms and conditions of the applicable Order and timely payment of all applicable Fees), Mage hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, internal use only license, during the Subscription Term to: (i) use APIs to submit to and obtain information from the Service in accordance with any associated Documentation solely as necessary in connection with the use of the Service pursuant to this Agreement; and (ii) make only those copies of APIs that are absolutely necessary to exercise Customer’s rights under the foregoing (i).

Documentation

Mage hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, internal use only license, during the Term to use any Documentation in connection with Customer’s use of the Service and API and make only those copies of the Documentation reasonably necessary to exercise Customer’s rights hereunder.

Availability

Mage will use commercially reasonable efforts to make the Service available to Customer in accordance with the Service Plan 24 hours a day, 7 days a week, except during scheduled downtime (of which Mage will use commercially reasonable efforts to give advance notice via the Service or email).

Modifications

Customer acknowledges that Mage may modify the features and functionality of the Service at any time, including during the Subscription Term. Mage shall provide Customer with commercially reasonable advance notice of any deprecation of any material feature or functionality.

Access and use

Account and User Logins

In order to access and use the Service, Customer must register an account on the Service (the “Customer Account”). Customer agrees to provide all information required in connection with registering the Customer Account and to keep such information, true, accurate and up to date. Customer may be able to provision access under the Customer Account to the specified number of individual Authorized Users permitted under a Service Plan (“User Logins”). Customer acknowledges and agrees that each Authorized User must be an individual person and a User Login cannot be shared or used any other person. User Logins may be reassigned to new individuals replacing former individuals who no longer require ongoing access to or use of the Service. Customer and Authorized Users are responsible for maintaining the confidentiality of all access credentials for the Customer Account and User Logins. Should Mage discover that Customer’s or any Authorized Users’ use of a Service violates this Agreement or the Service Plan features and limitations, Mage reserves the right to charge Customer, and Customer hereby agrees to pay for said overuse, in addition to other remedies available to Mage.

Compliance

Customer is responsible for compliance with the provisions of this Agreement by Customer’s personnel and agents, including Authorized Users, and for any and all activities that occur under the Customer Account, which Mage may verify from time to time. Without limiting the foregoing, Customer is solely responsible for ensuring that its and its personnel’s and agents’ use of the Service is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations Customer may maintain or enter into with third parties.

Restrictions

Customer shall not, directly or indirectly, and shall not permit any Authorized User or third party to: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, algorithms, or associated know-how of the Mage Technology (except to the extent expressly made available to Customer by Mage or permitted by applicable law notwithstanding this restriction); (ii) write or develop any program based upon the Mage Technology or any portion of any of the foregoing, or otherwise use the Mage Technology in any manner for the purpose of developing, distributing or making available products or services that are similar to or compete with the Mage Technology; (iii) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Mage Technology or any rights to any of the foregoing; (iv) permit the Mage Technology to be accessed or used by any persons other than Authorized Users accessing or using the Mage Technology in accordance with the Agreement; (v) use the Service in any manner where Customer acts as a service bureau or to provide any outsourced business process services; (vi) alter or remove any trademarks or proprietary notices contained in or on the Mage Technology; (vii) circumvent or otherwise interfere with any authentication or security measures of the Mage Technology or otherwise interfere with or disrupt the integrity or performance of the foregoing; (viii) use the Service to store or transmit any “protected health information” as defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), unless expressly agreed to otherwise in writing by Mage; (ix) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser; (x) launch or facilitate, whether intentionally or unintentionally, a level of traffic on the Service, or engage in any other conduct that materially and adversely impact the security, availability, or stability of the Service; or (xi) otherwise use the Mage Technology except as expressly permitted hereunder. Customer represents and warrants that it or, as applicable, Authorized Users have all rights, authorizations, and consents to provide Submitted Data to Mage and Customer has all rights, authorizations, and consents to grant Mage the rights and permissions to use and process the Submitted Data as contemplated by this Agreement and the function of the Service. Customer represents and warrants that it and all Authorized Users will, at all times during the Term, comply with all applicable laws in connection with its use of the Mage Technology, Outputs, or Submitted Data.

Right to Suspend

Customer acknowledges and agrees that Mage may, but is under no obligation to monitor use of the Service under the Customer Account. Without limitation to any other remedy available to Mage, Mage may suspend Customer’s, or an Authorized User’s access to the Service for any period during which Customer or an Authorized User is, or Mage has a reasonable basis for alleging Customer or an Authorized User is, in noncompliance with Section 3.3 of this Agreement.

System Requirements

A high-speed Internet connection is required for proper use of the Service. Customer is responsible for procuring and maintaining the network connections that connect its network to the Service including, but not limited to, browser software that supports protocols used by Mage and to follow procedures for accessing services that support such protocols. Mage assumes no responsibility for the reliability or performance of any connections as described in this Section.

Term and termination

Agreement Term

The Agreement will start on the Effective Date and will continue until terminated in accordance with the Agreement (the “Term”).

Subscription Terms

A Subscription will begin when Mage accepts the applicable Order by providing a confirmation email for such Subscription and continue until completion of the period for which Customer signs up for a Subscription (the “Initial Term”). Upon expiration of the Initial Term, the Subscription shall automatically and continuously renew for successive periods of the same duration as the Initial Term (each such period, a “Renewal Term” and all Renewal Terms together with the Initial Term of that Subscription, the “Subscription Term”) unless either party provides notice of non-renewal at least 30 days prior to the end of the then current Initial Term or Renewal Term.

Termination

Either party may terminate the Agreement by written notice: (i) if no Subscription is then in effect; (ii) the other party is in material breach of the Agreement, where such material breach is not cured within 30 days after written notice of such breach; or (iii) if: (a) the other party ceases to carry on its business; (b) a receiver or similar officer is appointed for the other party’s business, property, affairs or revenues and such proceedings continue for 45 days; (c) the other party becomes insolvent, admits in writing its inability to pay debts generally as they come due, is adjudicated bankrupt, or enters composition proceedings, makes an assignment for the benefit of its creditors or another arrangement of similar import; or (d) proceedings under bankruptcy or insolvency laws are commenced by or against the other party and are not dismissed within 45 days. Notwithstanding anything to the contrary herein, if Customer fails to pay any amounts owed to Mage within 15 days after written notice of nonpayment of any amounts owed to Mage, which may be provided any time after any amount becomes past due, Mage may immediately terminate this Agreement. For the avoidance of doubt, Customer’s noncompliance with Section 2.4 shall be deemed a material breach of the Agreement.

Effect of Termination

Upon the effective date of the expiration or termination of the Agreement for any reason: (i) Customer’s access to the Service, and the licenses granted to Customer hereunder will automatically terminate; (ii) all outstanding payment obligations of Customer for the remainder of the then current Subscription Term will become due and payable immediately, unless the Agreement is terminated by Customer pursuant to Section 4.3; and (iii) Customer shall immediately return, or at Mage’s request destroy and certify the destruction of any tangible embodiments of Mage’s Confidential Information, including all copies of APIs. The following provisions will survive the expiration or termination of the Agreement for any reason: Sections 1, 3.3, 4.4, 5.1, 5.2, 5.5, 6 through 14.

Feeds and payments

Fees

During the Term, Customer will pay Mage all fees of the type and amount set forth in an Order (“Fees”). All Fees payable for Subscriptions (“Subscription Fees”) are due monthly in advance unless otherwise set forth in the applicable Order. Mage may, at its sole discretion, change the cost or the amount of fees for any features or functionality of the Service at any point on a going forward basis; provided that changes in Subscription Fees for Customer’s then current Service Plan will take effect upon the start of the next Renewal Term.

Payment

Customer is responsible for providing valid and current payment information for payment of any Fees (“Payment Method”) and Customer agrees to promptly update its Payment Method, with any changes to keep its Payment Method valid and current.  Unless otherwise set forth in an Order or any Supplemental Terms all Fees are non-cancellable, non-refundable, and non-recoupable. Interest accrues from the due date at the lesser of 1.5% per month or the highest rate allowed by law. Customer is responsible for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of the Agreement or the transactions contemplated by the Agreement (other than taxes based on Mage’s net income).

Payment Provider

Payments hereunder may be billed and processed by Mage’s third party payment service provider, Stripe, Inc. (“Stripe”). for payment services (e.g., card acceptance, merchant settlement, and related services). Customer acknowledges that Mage is bound by, and Customer agrees, to the extent applicable, to be bound by Stripe’s terms and conditions (available at https://stripe.com/us/terms) along with its privacy policy (available at https://stripe.com/us/privacy). Customer hereby consents and authorizes the Mage and Stripe. Customer hereby authorizes Mage and Stripe to bill Customer’s Payment Method in advance on a periodic basis in accordance with the terms of Customer’s Subscription, and for other Fees payable hereunder and to share any information and payment instructions Customer provides with one or more third party service provider(s) to the minimum extent required to complete Customer’s transactions with Mage. If applicable, Customer hereby authorizes Mage and Stripe to charge Customer’s Payment Method to establish prepaid credit.

Free trials and beta services

Free Trials

From time to time, Mage may make available to Customer certain features and functionality of the Service on a free or trial basis (“Free Trials”), including beta versions of non-public or pre-release features and functionality. If Customer registers for a Free Trial, Customer may access and use the applicable features and functionality, as made available, in accordance with this Agreement on a trial basis free of charge until the earlier of (i) the end of the period of the Free Trial for which Customer registered; (ii) the start date of Subscription to such features or functionality is purchased by Customer; and (iii) termination of the Free Trial by Mage in its sole discretion. Notwithstanding anything to the contrary herein, Free Trials are not Service Plans nor are they part of a Service Plan. Free Trials may be subject to, and Customer’s use of the applicable features and functionality is conditioned on its compliance with any applicable Supplemental Terms.

Disclaimer

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ALL FREE TRIALS ARE PROVIDED ON AN “AS IS” “AS AVAILABLE BASIS” WITHOUT ANY WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED AND MAGE MAKES NO PROMISES AND WILL HAVE NO OBLIGATION WITH RESPECT TO THE AVAILABILITY OR PERFORMANCE OF THE FEATURES AND FUNCTIONALITY OF ANY FREE TRIAL. FOR THE AVOIDANCE OF DOUBT, MAGE WILL HAVE NO OBLIGATIONS UNDER SECTIONS 2.4, 9.2, 10.1, OR 11.2 OF THIS MSA WITH RESPECT TO ANY FREE TRIALS. ANY SUBMITTED DATA PROVIDED BY CUSTOMER AND ANY OUTPUTS PROVIDED TO CUSTOMER IN CONNECTION WITH A FREE TRIAL, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO A SERVICE BY OR FOR CUSTOMER, IN CONNECTION WITH A FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME FEATURES AND FUNCTIONALITY AS COVERED BY THE TRIAL, PURCHASE THE APPLICABLE SERVICE, OR EXPORT SUCH SERVICE DATA, BEFORE THE END OF THE TRIAL PERIOD; PROVIDED THAT MAGE HAS NO OBLIGATION TO MAKE ANY FEATURES OR FUNCTIONALITY AVAILABLE AS A FREE TRIAL AVAILABLE ON A SUBSCRIPTION BASIS.

Proprietary rights

Customer acknowledges that Mage owns and retains all rights, title, and interest, including all intellectual property rights, in and to the Mage Technology, including all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship, and other tangible and intangible material and information pertaining thereto or included therein, and nothing in the Agreement shall preclude or restrict Mage from using or exploiting any concepts, ideas, techniques or know-how of or related to the Mage Technology or otherwise arising in connection with Mage’s performance under the Agreement. Other than as expressly set forth in the Agreement, no licenses or other rights in or to the Mage Technology are granted to Customer and all such rights are hereby expressly reserved.

Confidentiality

Definition

“Confidential Information” means: (i) any information disclosed, directly or indirectly, by or on behalf of one party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to the Agreement that is designated as “confidential,” or in some other manner to indicate its confidential nature; and (ii) any information that otherwise should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure or the nature of the information itself. Without limiting the foregoing, (a) the Mage Technology, the functionality and performance of the Mage Technology, including any metrics pertaining thereto is the Confidential Information of Mage, and (b) the Submitted Data and Outputs are the Confidential Information of Customer. However, Confidential Information does not include any information that: (I) is or becomes generally known and available to the public through no act of the Receiving Party; (II) was already in the Receiving Party’s possession without a duty of confidentiality owed to the Disclosing Party at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (III) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (IV) is independently developed by the Receiving Party without breach of an obligation owed to the Disclosing Party.

Use; Maintenance

Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under the Agreement. Neither party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other party, except: (i) to its advisors, or prospective investors or purchasers, in each case subject to written obligations of confidentiality, or (ii) where the Receiving Party becomes legally compelled to disclose Confidential Information, notwithstanding the Receiving Party’s having given the Disclosing Party prior notice of such legally compelled disclosure and a reasonable opportunity to seek a protective order or other confidential treatment for such Confidential information (if permitted by applicable law). Each party will take reasonable measures and care to protect the secrecy of, and avoid disclosure and unauthorized use of the other party’s Confidential Information, and will take at least those measures taken to protect its own most highly confidential information. Notwithstanding anything to the contrary herein, Customer agrees that Mage may also use and exploit in any manner on a worldwide, irrevocable, perpetual, royalty-free basis, any: (a) aggregated non-personally identifiable information related to any usage of the Service to operate and improve Mage’s products and services; and (b) suggestions, requests and feedback provided by or on behalf of Customer regarding the Mage Technology.

Customer data

Submitted Data and Outputs

Mage will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Except as required in Mage’s reasonable discretion for purposes of (iv) or (v) of this Section 8.1, Mage will not store any piece of Submitted Data for any longer from the date on which such Submitted Data is submitted than 365 days. Customer agrees that Mage may use Customer Data as necessary to make available the Service, perform its obligations hereunder, and improve the Service, including, without limitation, performing any required, usual, appropriate, or acceptable activities relating to the Service, such as: (i) providing or supporting the use of the Service and carrying out the business of which the Service is a part; (ii) training Mage’s machine learning algorithms; (iii) carrying out any benefits, rights, and obligations relating to the Service; (iv) maintaining records relating to the Service; and (v) complying with any legal or self-regulatory obligations relating to the Service. Customer acknowledges and agrees that, notwithstanding anything to the contrary herein, Mage may, in its sole discretion, erase or delete from the Service any Customer Data that it reasonably believes is illegal, harmful, objectionable, lewd, not related to the function of or necessary for the use of the Service, or that Mage determines may, as a result of Mage possessing such data, harm Mage’s business or reputation.

Post-termination Access to Customer Data

For thirty (30) days after the effective date of termination or expiration of a Subscription, upon Customer’s request, Mage will make Customer Data in Mage’s possession available to Customer for export or download as provided in the Documentation. Thereafter, Mage will have no obligation to maintain or provide any Customer Data, and Mage will, unless prohibited by law or legal order, delete Customer Data in the Service in accordance with its data deletion policies.

Indemnification

By Mage

Mage shall: (i) defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that the Mage Technology made available to Customer pursuant to a Subscription or Customer’s use, as authorized in the Agreement, of the Service pursuant to a Subscription during the Subscription Term constitutes a direct infringement of U.S. copyrights or trade secrets of any third party (an “Infringement Claim”); and (ii) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) in any such Infringement Claim defended by Mage; provided that Customer provides Mage (I) prompt written notice of, (II) sole control over the defense and settlement of, and (III) all information and assistance reasonably requested by Mage in connection with the defense or settlement of, any such Infringement Claim. If any Infringement Claim is brought or threatened, Mage may, at its sole option and expense: (w) procure for Customer the right to continue to use the Mage Technology; (x) modify the Mage Technology, as applicable, to make it non-infringing; (y) replace the affected aspect of the Mage Technology with non-infringing technology having substantially similar capabilities; or (z) if none of the foregoing is commercially practicable, terminate the Agreement. Notwithstanding the foregoing, Mage will have no liability to Customer: (1) for any use of the Mage Technology in combination with software, products or services not provided by Mage; to the extent that the Mage Technology would not be infringing but for such combination or modification; (2) for Customer’s failure to use the Mage Technology in accordance with the Agreement; or (3) for any claims related to Submitted Data.

Disclaimer

SECTION 7.1 STATES THE ENTIRE LIABILITY OF MAGE, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY MAGE, THE MAGE TECHNOLOGY, OR ANY PART THEREOF.

By Customer

Notwithstanding anything to the contrary in Section 7.1, Customer shall defend or, at its option, settle, any claim brought against Mage by a third party: (i) alleging that the use by or on behalf of Mage of the Submitted Data in accordance with the Agreement violates a third party’s rights; (ii) arising out of any unauthorized access or use of the Service by Customer or any Authorized Users or any third party utilizing any access credentials of Customer or any Authorized Users; (iii) arising out of the use of the Service in violation or in connection with a violation of applicable law; (iv) arising out of the operation of Customer’s business; or (v) arising out of Customer’s or Authorized Users’ breach of this Agreement. Customer will indemnify Mage for all costs, liabilities, damages, and expenses incurred by Mage (or the amount of any settlement entered into or approved in writing by Customer) with respect to such a claim. Mage shall provide Customer with: (a) prompt written notice of; (b) sole control over the defense and settlement of; and (c) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim.

Warranties

Mutual Warranties

Each party represents and warrants to the other that (i) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with such party’s execution, delivery or performance of this Agreement; and (iii) the execution, delivery and performance of the Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

Warranties of Mage

Mage warrants that during an applicable Subscription Term (i) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data; and (ii) the Service Plan will perform materially in accordance with the applicable Documentation. For any breach of a warranty in this section, Customer’s exclusive remedies are those described in Section 4.3 to the extent such a breach constitutes a material breach of the Agreement.

DISCLAIMER

EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, MAGE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, OR ACCURACY OF RESULTS. MAGE DOES NOT WARRANT THAT THE MAGE TECHNOLOGY WILL BE ERROR-FREE, UNINTERRUPTED, OR COMPATIBLE WITH ANY PARTICULAR DEVICE, THAT ANY DATA PROVIDED BY OR THROUGH THE MAGE TECHNOLOGY, INCLUDING PROVIDED DATA, WILL BE ACCURATE OR COMPLETE, OR, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THAT MAGE’S SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO SUBMITTED DATA. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER BEARS ALL RESPONSIBILITY, AND MAGE WILL HAVE NO LIABILITY FOR DECISIONS BASED ON ANY OUTPUTS, OR ANY OTHER INFORMATION PROVIDED TO CUSTOMER VIA THE SERVICE OR BY MAGE.

LIMITATION OF LIABILITY

EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS: (i) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) NEITHER PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THE AGREEMENT (EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS) WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 15.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES AND CONSULTING FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF MAGE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. MAGE HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER WITH THE RIGHTS TO ACCESS AND USE THE SERVICES AND/OR THE CONSULTING SERVICES PROVIDED FOR IN THIS AGREEMENT.

General provisions

Assignment

Neither party may assign the Agreement or any of its rights or obligations under the Agreement without the prior written consent of the other party, except that Mage may assign the Agreement without the consent of Customer as part of a corporate reorganization, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to the Agreement, or a similar transaction or series of transactions. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

Force Majeure

Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, pandemic, embargo, riot, sabotage, labor shortage or dispute, governmental act, failure or degradation of the Internet or any third party service provider. The delayed party shall use its commercially reasonable efforts to correct such failure or delay in performance.

Governing Law

The Agreement shall be governed by and construed under the laws of the State of California without reference to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Subject first to Section 10.6, if a lawsuit or court proceeding is permitted under the Agreement, the parties will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California, and the parties hereby agree and consent to the exclusive jurisdiction and venue of such courts.

Publicity

Mage may use Customer’s name as a reference for marketing or promotional purposes on Mage’s website and in other communication with existing or potential Mage customers; subject to Customer’s prior approval of any such use.

Third-Party Links

The Service may contain links to or offer integrations with third-party websites and services, including supported third party cloud-based applications that may integrate with the Service (“Third-Party Links”). Such Third-Party Links are not under the control of Mage, and Mage is not responsible for any Third-Party Links. Mage provides access to these Third-Party Links only as a convenience to Customer and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links. Customer uses all Third-Party Links at its own risk, and should apply a suitable level of caution and discretion in doing so. When Customer uses any of the Third-Party Links, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. Customer should make whatever investigation it feels necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links.

Government Rights

Mage provides the Mage Technology, including any related software, data, and technology, for ultimate government end use solely in accordance with the following: The Service and API shall constitute “commercial” computer software. Government technical data and software rights related to the Service and API include only those rights customarily provided to the public as defined in the Agreement. These customary commercial licenses are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Customer-Side Application) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Customer-Side Application or Computer Customer-Side Application Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Mage to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

Arbitration

The parties agree to resolve all disputes arising under or in connection with the Agreement through binding arbitration. A party who intends to seek arbitration must first send a written notice of the dispute to the other party. The parties will use good faith efforts to resolve the dispute directly, but if the parties do not reach an agreement to do so within 30 days after the notice is received, either party may commence an arbitration proceeding. The arbitration will be conducted in accordance with the applicable rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in English in San Francisco, California, USA. If the parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the AAA for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA will be final and binding on the parties. The arbitrator must be independent of the parties. The arbitrator’s decision will be final and binding on both parties, and the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The costs and expenses of the arbitration will be shared equally by both parties; however, if the arbitrator finds that either the substance of the claim or the relief sought in arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. Notwithstanding the foregoing, this Section 10.6 will not prohibit either party from: (i) bringing an individual action in small claims court; (ii) seeking injunctive or other equitable relief in a court of competent jurisdiction; (iii) pursuing an enforcement action through the applicable federal, state, or local agency if that action is available; or (iv) filing suit in a court of law to address an intellectual property infringement or misappropriation claim. If this Section 10.6 is found to be unenforceable, the parties agree that the exclusive jurisdiction and venue described in Section 10.3 will govern any action arising out of or related to the Agreement.

Miscellaneous

Mage and Customer are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between Mage and Customer. In the event of any inconsistency or conflict between the terms of the Agreement and the terms of any Order, the terms of the Order shall control. The Agreement is the sole agreement of the parties concerning the subject matter hereof, and supersedes all prior agreements and understandings with respect to said subject matter. Customer may not subcontract or delegate any rights or obligations granted to it under the Agreement to any third parties, including its consultants or contractors, without the prior written consent of Mage. No terms of any purchase order, acknowledgement, or other form provided by Customer in connection with an Order will modify the Agreement, regardless of any failure of Mage to object to such terms. Any ambiguity in the Agreement shall be interpreted without regard to which party drafted the Agreement or any part thereof. There are no third party beneficiaries to the Agreement. The Agreement may only be amended by a writing signed by both parties. The Agreement may be executed in counterparts. The headings in the Agreement are inserted for convenience and are not intended to affect the interpretation of the Agreement. All notices provided by Mage to Customer under this Agreement may be delivered in writing by (a) nationally recognized overnight delivery service or U.S. mail to the contact mailing address provided by Customer; or (b) electronic mail to the electronic mail address provided for the Customer Account. Customer must give notice to Mage in writing by nationally recognized overnight delivery service or U.S. mail to the address set forth above. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a courier as permitted above. Mage may use subcontractors or otherwise delegate aspects of its performance under the Agreement; provided that Mage shall remain responsible hereunder for any such subcontractor’s performance. Waiver of any term of the Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of the Agreement. Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of the Agreement and the remainder of the Agreement will continue in full force and effect without said provision. The parties agree to comply with all applicable export control laws and regulations related to their performance of the Agreement.

Definitions

“Agreement”

means this MSA together with all Orders, Statements of Work, and Supplemental Terms, all of which are hereby incorporated by reference, and all other terms and conditions have been incorporated herein by reference.

“API”

means any application programming interface for sending data to or receiving data from the Service and any corresponding software libraries that are made available to Customer.

“Authorized Users”

means individuals who are Customer’s employee or contractor personnel authorized by Customer to access and use the Service.

“Customer Data”

means Submitted Data and Outputs.

“Dashboard”

means the web based user interface for Customer to access portions of the Service.

“Documentation”

means any user instructions, manuals, on-line help files, or other materials that are provided by Mage in connection with the Service or API.

“Mage Technology”

means, collectively, the Service, API, Documentation, and any other services to be provided pursuant to the Agreement.

“Order”

means a generated service order form(s) or online ordering document or process completed, executed or approved by Customer with respect to a Subscription to the Service, which may detail, among other things, the number of Authorized Users and the Service Plan applicable to the Subscription.

“Outputs”

means outputs or results based on the processing of Submitted Data via the Service that are returned to Customer.

“Service”

means Mage’s proprietary Software-as-a-Service platform for Machine Learning.

“Service Plan”

means the features and functionality of the Service as well as any limitations or quantities or usage or Authorized Users applicable to the Subscription purchased by Customer.

“Submitted Data”

means any data pertaining to that is submitted by Customer or Authorized Users to the Service to be processed by the Service.

“Subscription”

means the right to access and use certain services and features of the Service for a particular period of time.

 2022 Mage Technologies, Inc.
 2022 Mage Technologies, Inc.