MASTER SERVICES AGREEMENT

1. DEFINITIONS

The following definitions apply to capitalized terms in this Agreement. All other capitalized terms are defined in the body of the Agreement.

1.1           “Customer Data” means all data and/or content provided by Customer to HiddenLayer pursuant to this Agreement.

1.2           “Effective Date” means the date of the first Order Form incorporating this Agreement, or, if executed by the Parties, the last date of the signatures on this Agreement.

1.3           “End User License Agreement” means the End User License Agreement available at https://hiddenlayer.com/eula/.

1.4           “Force Majeure Event” means any of the following: (i) fire, explosion storm, earthquake, hurricane, tornado, drought, flood, typhoon, tsunami or other act of God; (ii) war, act of terrorism, sabotage, bombing, insurrection, rebellion, revolution, riot or other civil commotion or unrest; (iii) epidemics, quarantine restrictions or other public health restrictions or advisories; (iv) strikes or lockouts or other labor interruptions; (v) disruption to local, national or international transport services; (vi) events which threaten public safety or create substantial disruption in commercial activity; or (vii) any other event that is beyond the reasonable control of either Party.

1.5           “Intellectual Property” means any intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other Confidential Information, Trademarks and domain names, together with all of the goodwill associated therewith, derivative works and all other rights.

1.6           “Notice” means any notice or other communication required or permitted under this Agreement.

1.7           “Order Form” means a statement of work or order form that describes the specific products and/or services to be provided by HiddenLayer to Customer under this Agreement.

1.8           “Products” means the products and professional services provided by HiddenLayer to Customer, as described in the applicable Order Form.

1.9           “Services” means the services provided by HiddenLayer to Customer, as described in the applicable Order Form.

1.10        “Third-Party Material” means materials and information, in any form or medium, that are not proprietary to HiddenLayer and that are distributed with or incorporated into the Products and/or Services.

1.11        “Trademarks” means all trademarks, service marks, trade names, trade dress and Internet domain names, together with the goodwill associated exclusively therewith.

2. Scope of Agreement

2.1           Provision of Products and/or Services.  This Agreement governs the provisions of Products and/or Services by HiddenLayer to Customer.  Specific details of the Products and/or Services offered hereunder to Customer shall be set out in one or more Order Forms executed by both Parties.  Customer acknowledges and agrees that all Products shall be provided to Customer pursuant to the End User License Agreement.

2.2           Changes to Products and/or Services.  Any changes to the Products and/or Services must be agreed upon in writing by both Parties.

3. Fees and Payment Terms

3.1           Fees and Expenses.  If Customer purchases directly from HiddenLayer, Customer will pay HiddenLayer the fees specified on the invoice associated with each Order Form (“Fees”).  If Customer purchases through a HiddenLayer authorized reseller, all fees and other procurement and delivery terms shall be agreed upon between Customer and the applicable reseller.  Fees for usage in excess of amounts purchased will be billed by HiddenLayer in the next billing cycle and Customer acknowledges that such additional fees must be paid in accordance with the terms herein.

3.2           Payment.  If Customer purchases directly from HiddenLayer, payment is due within thirty      (3     0) days of the date of each invoice, unless otherwise specified in the applicable Order Form.  Payment will be made by credit card, wire transfer or another prearranged payment method unless HiddenLayer has extended credit terms to Customer.  All Fees described in a Order Form will be fully invoiced in advance, unless otherwise agreed to in writing by HiddenLayer. For Products and/or Services with multi-year terms, HiddenLayer will invoice the annual Fees to such Customer thirty (30) in advance of each anniversary date of the appliable term. If any payment is past due, HiddenLayer may, without limiting any remedies available to HiddenLayer, suspend performance until payment is made current.  Customer will pay interest on all delinquent amounts at the lesser of one- and one- half percent (1.5%) per month or the maximum rate permitted by applicable law.

3.3           Taxes.  The fees and charges covered by this Agreement are exclusive of any indirect taxes imposed or levied on the Products.  Customer will be liable for compliance with reporting and payment of such taxes in its tax jurisdiction.

4. Intellectual Property Ownership

4.1           HiddenLayer Intellectual Property. Except as otherwise expressly stated in a Order Form, HiddenLayer shall retain all right, title and interest in and to (i) any Intellectual Property included in the Products and/or Services, including any Intellectual Property that HiddenLayer creates, develops, uses, modifies, enhance or otherwise exploit pursuant to this Agreement or the applicable Order Form or (ii) any Intellectual Property that Customer creates, develops, uses, modifies or otherwise exploits when receiving or using the Products and/or Services, including any feedback, suggestions, improvements, enhancements, modifications or derivative works thereof (collectively, the “HiddenLayer IP“). HiddenLayer hereby grants to Customer a non-exclusive, royalty-free, worldwide, revocable, non-sublicensable and non-transferable license to use, copy, modify, distribute, display, perform and create derivative works of HiddenLayer IP, solely to the extent necessary for Customer to receive the benefit of the Services and the Deliverables in accordance with this Agreement and the applicable Order Form.

4.2           Customer Intellectual Property. Customer shall retain all right, title and interest in and to any Intellectual Property that Customer creates, develops, uses, modifies, enhances or otherwise exploits independently of or prior to this Agreement (collectively, the “Customer IP“). Customer hereby grants to HiddenLayer a non-exclusive, royalty-free, worldwide license to use, copy, modify, distribute, display, perform and create derivative works of Customer IP, solely to the extent necessary for HiddenLayer to provide the Products and/or Services in accordance with this Agreement and the applicable Order Form. HiddenLayer shall not use, disclose, reproduce or otherwise exploit Customer IP for any other purpose, and shall return or destroy all copies of Customer IP upon Customer’s request.

5. Data

5.1           Responsibility for Data.  Personal information may be collected and used during the provisioning and use of the Products and/or Services to deliver, support and improvement such Products and/or Services. As between HiddenLayer and Customer, Customer is solely responsible for:  (i) the content, quality and accuracy of the personal information as made available to HiddenLayer by Customer; (ii) providing notice to authorized users or participants, as applicable, with regards to how personal information will be collected and used for the purpose of the Products or Services; (iii) ensuring Customer has a valid legal basis for processing personal information and for sharing personal information with HiddenLayer (to the extent applicable); and (iv) ensuring that the personal information as made available by Customer complies with applicable laws and regulations, including applicable data protection laws.

6. Confidentiality

6.1           From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” “proprietary” or some similar designation, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”); provided, however, that such Confidential Information does not include any information that:  (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 6; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source that was not legally or contractually restricted from disclosing such information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any of the Disclosing Party’s Confidential Information.  The Receiving Party shall:  (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the service providers who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.

6.2           If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.

7. Limited Warranty

7.1           HiddenLayer warrants that it shall perform the Services:

(a)            In accordance with the terms and subject to the conditions set out in the respective Order Form and this Agreement.

(b)           Using personnel of commercially reasonable skill, experience, and qualifications.

(c)            In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.

7.2           Hiddenlayer’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:

(a)            HiddenLayer shall use reasonable commercial efforts to promptly cure any such breach; provided, that if HiddenLayer cannot cure such breach within a reasonable time but no more than sixty (60) days after Customer’s written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 8.2.

(b)           In the event the Agreement is terminated pursuant to Section 7.2(a) above, HiddenLayer shall within sixty (60) days after the effective date of termination, refund to Customer any fees paid by the Customer as of the date of termination for the Products and/or Services, less a deduction equal to the fees for receipt or use of such Products and/or Services up to and including the date of termination on a pro-rated basis.

(c)            The foregoing remedy shall not be available unless Customer provides written notice of such breach within thirty (30) days after delivery or acceptance of such Products or Services, as applicable, to or by Customer.

7.3           HIDDENLAYER MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 7.1, ABOVE.  ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.

8. Limitation of Liability

8.1           TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HIDDENLAYER BE LIABLE FOR ANY LOSS OF, DAMAGE TO, OR CORRUPTION OF DATA, LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, PRODUCTION, GOODWILL OR ANTICIPATED SAVINGS, OR BUSINESS INTERRUPTION OR OTHER COMMERCIAL, ECONOMIC OR OTHER DAMAGES, LOSSES OR INJURY OF ANY KIND INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF INCLUDING, WITHOUT LIMITATION, ANY USE OF OR INABILITY TO USE THE PRODUCTS AND/OR SERVICES, IN WHOLE OR IN PART, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES, DAMAGES OR INJURIES    AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

8.2           IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF HIDDENLAYER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL FEES PAID TO HIDDENLAYER UNDER THE APPLICABLE ORDER FORM IN THE 12 MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM. ALL CLAIMS THAT LICENSEE MAY HAVE AGAINST HIDDENLAYER UNDER THIS AGREEMENT WILL BE AGGREGATED TO SATISFY THE LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

9. Indemnification

9.1           Customer shall defend and indemnify HiddenLayer and/or its affiliates and their officers, directors and employees against any third-party claims, suits and proceedings (including those brought by a government entity), and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) resulting from: (i) an alleged infringement or violation by the Customer Data of any third party’s Intellectual Property; (ii) HiddenLayer’s use of the Customer Data violating applicable law, provided that such use is in accordance with the terms of this Agreement; or (iii) Customer’s use of the Products and/or Services.

9.2           HiddenLayer will defend, indemnify and hold Customer harmless from direct liability solely to the extent resulting from infringement by the Products and/or Services of any third party’s valid Intellectual Property, provided that (a) Customer promptly notifies HiddenLayer in writing of any threats, claims and/or proceedings related thereto; (b) Customer gives HiddenLayer all reasonable assistance including, without limitation, providing information, documents and access to Customer’s employees; and (c) HiddenLayer will have sole control of the defense and/or settlement thereof. Customer will be entitled to participate in any such action or proceeding at its own expense, with counsel of its own choosing.

9.3           Section 9.2 does not apply to the extent that the alleged infringement arises from: (a) Third-Party Materials; (b) combination, operation, or use of the Products and/or Services in or with, any technology or service not provided by HiddenLayer or specified for Customer’s use in the Documentation; (c) modification of the Products and/or Services other than by HiddenLayer in connection with this Agreement; (d) use of any version of the Products other than the most current version, or failure to timely implement any patches, updates, upgrades, modifications or new releases of the Products made available to Customer by HiddenLayer; (e) use of the Products and/or Services after HiddenLayer’s notice to Customer of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights; (f) negligence, abuse, misapplication, or misuse of the Products and/or Services by or on behalf of Customer, Customer’s employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors, and legal advisor or a third party; or (g) use of the Products and/or by or on behalf of Customer that is outside the permitted use as specified in this Agreement or the End User License Agreement.

10. TERM AND TERMINATION

10.1           This Agreement shall commence as of the Effective Date and shall continue thereafter the period designated on Customer’s applicable Order Form or until the completion of the Services under all Order Forms, whichever is later (the “Term”), unless sooner terminated pursuant to Section 9.2 or Section 9.3.

10.2           Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party:

(a)            Materially breaches this Agreement, and the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach, or such material breach is incapable of cure;

(b)           Becomes insolvent or admits its inability to pay its debts generally as they become due;

(c)            Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty-five (45) business days after filing;

(d)           Is dissolved or liquidated or takes any corporate action for such purpose;

(e)            Makes a general assignment for the benefit of creditors; or

(f)            Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

10.3           Notwithstanding anything to the contrary in Section 10.2(a), HiddenLayer may terminate this Agreement before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder:  (a) and such failure continues for thirty (30) days after Customer’s receipt of written notice of nonpayment; or (b) more than three (3) times in any twelve (12) month period.

10.4           The expiration or termination of this Agreement will not affect the rights or obligations of the Parties that have accrued prior to such expiration or termination, or that by their nature are intended to survive such expiration or termination, including, without limitation, Sections 3, 4, 6, 7.3, 8, 9 and 11.