PLEASE READ THIS AGREEMENT CAREFULLY. BY PURCHASING, INSTALLING, DOWNLOADING OR OTHERWISE USING THE SIDERO LABS OMNI SERVICE (INCLUDING ITS COMPONENTS) (THE “SERVICE”), YOU AGREE TO THE TERMS OF THIS AGREEMENT AND ANY CHANGES TO THIS AGREEMENT SIDERO LABS MAY MAKE IN THE FUTURE. IF YOU DO NOT AGREE WITH THESE TERMS, YOU ARE NOT PERMITTED TO USE THE SERVICE. AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY.

1.     SERVICES AND SUPPORT

This Master Services Agreement (“Agreement” or “MSA”) is entered into between Sidero Labs, Inc., a Delaware corporation (“Company”), and You (an entity or person) (“Customer”) (individually a “party” and together the “parties”).  This Agreement includes and incorporates the Order Form and any additional Order Forms subsequently entered by the parties (and any Statements of Work (SOWs) set forth therein for Professional Services, and any Support Services subscribed to as applicable), as well as the attached Terms and Conditions which contains, among other things, warranty disclaimers, liability limitations and use limitations.  There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.

1.1            SaaS Services.

a. Subject to the terms of this Agreement, Company will provide Customer the Services specified in the applicable Order Form through which the Services are ordered (each an “Order Form”) (the “Services” or “SaaS Services”), in accordance with the Service Level Terms attached hereto as Exhibit A.

b. Subject to Customer’s compliance with the terms and conditions of this Agreement, Customer is granted a limited, non-exclusive, non-transferable (except as permitted in Section 9), non-sublicensable, terminable, royalty-free (apart from the Services fees due to Company) license (a) to access and use the Services; and (b) to use those portions of the Platform applicable to the relevant Order Form and Customer’s subscription, including any Software that Company makes available to Customer, only in order to make use of the Services; and solely in each (a) and (b) for Customer’s internal business operations during the Term. The “Platform” means and includes: (i) the proprietary and third party software applications provided or otherwise made available by Company to Customer as part of the Service, including without limitation any and all updates, enhancements, patches, fixes or modifications to any of the foregoing made available or provided by Company to Customer (the “Software”); and (ii) all technology, technical information, discoveries, ideas, theories, improvements, tools, designs, original works of authorship, processes, algorithms, software, inventions, know-how, techniques, data, documentation and other information, including all intermediate and partial versions thereof, underlying the Platform.  No other rights or licenses are granted except as expressly set forth herein.

c. Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms in Exhibit B.

1.2            Other Services. 

To the extent specified in an applicable Order Form accepted by the parties, the Company will perform (a) services to assist Customer in implementing the SaaS Services (“Implementation Services”), and/or (b) consulting services for specific project work agreed upon with Customer on a case-by-case basis (“Consulting Services” and together or separately with Implementation Services, “Professional Services”). Such work will be performed for the prices in the applicable Order Form and SOWs, pursuant to the terms set forth herein and in SOWs signed by the parties.

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, Software and Platform; modify, translate, or create any Derivative Works based on the Services, Software or Platform (except to the extent expressly permitted by Company or authorized within the Services); use the Services, Platform or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.  “Derivative Work” for this Agreement means any modification of or extension to any software, process, algorithm, trade secret, work of authorship, invention, or to any other intellectual property right therein or thereto.

2.2        Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Platform, 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 sections 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 represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless the Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any third party claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of the Services in violation of the terms of this Agreement or from its willful misconduct.  Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.4        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 (collectively, “Equipment”).  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.

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 (“Customer Data”). 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 that the Receiving Party can document (a) is or becomes generally available to the public through no breach hereof by Receiving Party, or (b) was lawfully in its possession or known by it prior to receipt from the Disclosing Party, or (c) was lawfully disclosed to Receiving Party without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.  The confidentiality and non-use obligations of each Receiving Party under this Agreement will survive expiration or termination of this Agreement for a period of five (5) years; except that such obligations shall survive thereafter with respect to each Disclosing Party’s software, algorithms and technology-based trade secrets so long as they remain trade secrets under prevailing law (without regard to any breach of the Receiving Party).

3.2       Company owns, holds as its valuable Proprietary Information and shall continue to own and retain all right, title and interest in and to (a) the Services, Platform and Software, including the specific design and structure of individual programs, and Company’s  techniques, analyses, modules, documentation, training materials and consulting methods, and all improvements, enhancements or modifications thereto; (b) any software, applications, inventions, Derivative Works, Company Tools or other technology developed by Company either in connection with or separately from (i) Implementation Services or support, and (ii) Consulting Services, including without limitation any analyses or modules Company creates or materially assists in creating for Customer’s use and benefit; and (c) all intellectual property rights related to any of the foregoing (collectively with (a) and (b) the “Company Technology”). “Company Tools” means any intellectual property or Company Technology which Company creates or uses in order to prepare the Deliverables or Services and all Derivative Works thereof, whether or not prepared under Customer’s funding or otherwise in the course of performance of this Agreement.

3.3       (a) Customer shall own all right, title and interest in and to the Customer Data and any Intellectual property it created prior to or separate from this Agreement. Additionally, although Company is not in the business of developing software or technology for its customers (“Development Services”), if Company agrees under a specific, mutually signed SOW to perform Development Services for Customer’s exclusive benefit, then subject to and effective upon Company’s receipt of full payment due for such Services, and subject to the other terms and conditions hereof, (i) Company will assign to Customer all right, title, and interest in and to any new software or technology specifically developed for Customer under such SOW (a “Deliverable”) that does not comprise a Derivative Work of any portion of the Company Technology, and (ii) for any such developments that are based in whole or in part upon or that otherwise utilize or rely upon any of the Software or Company Technology (each a “Development”), Customer hereby grants to Company on a non-confidential basis, a nonexclusive, irrevocable, worldwide, royalty-free, sublicensable license to perform services, use, distribute, publish, display, copy, sell, have sold, make and have made products, create Derivative Works of, import, export, and license the Developments and products and services utilizing or incorporating the same, and to otherwise commercially exploit the same, but excluding any Customer Proprietary Information.
(b) To the extent any Deliverable comprises a Derivative Work of any Company Technology, or to the extent the Deliverables delivered to Customer under the Development Services SOW incorporate any Company Technology, then effective and contingent upon full payment to Company for the Deliverables and subject to the terms and conditions hereof, Company grants and Customer accepts a nonexclusive, nontransferable, non-sublicensable, worldwide, royalty-free (apart from the fees under the SOW) license to use that portion of any such Company Technology incorporated into such Deliverables (but specifically excluding any Company Tools) solely in connection with Customer’s use of the Services and Deliverables and the sale and distribution of products or services developed by Company for Customer in the course of Company’s performance of the Development Services SOW.  Such license shall include the right to use Software object code used in the Deliverables, but not Software source code. Customer shall not otherwise be entitled to use, license or commercially exploit the Company Technology without the Company’s prior written consent.
3.4        Notwithstanding anything to the contrary, Company shall have the right to 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 (including, without limitation, information concerning Customer Data and data derived therefrom), and  Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data in connection with its business solely in anonymized, and aggregated or other de-identified form, devoid of all Customer identifiers and Personal Data and not traceable to any party).
3.5        The parties shall comply with applicable law as it pertains to Personal Information  and Personal Data, each as defined respectively in the California Consumer Privacy Act of 2018 (Cal. Civ. Code § 1798.100 et seq.) and, as may be applicable, the General Data Protection Regulation (EU) 2016/679 (aka, the “GDPR”), each as amended, and any regulations promulgated thereunder.

3.6        Customer agrees that Company may identify Customer as a recipient of services and use its name and logo in sales presentations, marketing materials and press releases.

4.     PAYMENT OF FEES

4.1        Customer will pay Company the then applicable fees described in each applicable Order Form for the Services and any Professional Services in accordance with the terms therein (the “Fees”).  If Customer’s use of the Services exceeds the Service Capacity set forth on the applicable Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be notified in writing and billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.  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 then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes in good faith that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment, refund 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 (the “Due Date”) and shall be considered in default if not received within fifteen (15) calendar days of the Due Date.  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 reasonable 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 is for the Initial Service Term as specified in the applicable Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

5.2        In addition to any other remedies it may have, either party may also terminate this Agreement: (i) upon thirty (30) days’ notice, if the other party materially breaches any of the terms or conditions of this Agreement; (ii) if the other party becomes insolvent or admits in writing its inability to pay its debts as they mature or makes an assignment for the benefit of creditors; or (iii)  if a petition under the United State Bankruptcy Act, as it now exists or as it may be amended, or any similar law of any other jurisdiction, is filed concerning the other party.  Customer will pay in full for the Services up to and including the last day on which the Services are provided. If Company terminates the Agreement without cause, Customer will be refunded for any pre-paid services which are not provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, responsibilities and restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, 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 and shall perform the SaaS Services and Professional Services in a professional and workmanlike manner.  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, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

6.2 Disclaimers. 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 OR REGARDING THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS OR PERFORMANCE OF THE SERVICES OR THAT SERVICES WILL MEET CUSTOMER’S REQUIREMENTS.  EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, THE SERVICES AND PROFESSIONAL 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 NONINFRINGEMENT.  IN THE CASE OF A BREACH OF WARRANTY BY COMPANY, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR COMPANY AT ITS OPTION TO REPERFORM THE SERVICES OR ISSUE A PRO-RATA REFUND FOR THE NON-CONFIRMING SERVICE.

7.     INDEMNITY

Company shall indemnify, defend and hold Customer harmless from liability to third parties based upon claims by such parties (“Claims”) resulting from infringement by the Service of any copyright or misappropriation of any trade secret owned by such third party, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications and the alleged infringement is caused by adherence to Customer specifications, (iii) that are modified after delivery by Company and the alleged infringement is caused by the Customer modification, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified in writing thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement and such use causes the alleged infringement.  If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service. THE FOREGOING CONSTITUTES COMPANY’S ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS OF INFRINGEMENT OF ANY KIND OR NATURE.

8.     LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON AND THE CONFIDENTIALITY OBLIGATIONS HEREIN, IN NO EVENT WILL EITHER PARTY OR ITS SUPPLIERS’ (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS’, AFFILIATES’, REPRESENTATIVES’, CONTRACTORS’ AND EMPLOYEES’ AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS AND ALL SOWS AND ORDER FORMS EXCEED THE AMOUNTS RECEIVED BY COMPANY FROM CUSTOMER DURING TWELVE (12) MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THIS LIMITATION IS CUMULATIVE FOR ALL CLAIMS ARISING UNDER ALL SOWS AND ORDERING DOCUMENTS, AND SHALL APPLY EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT SHALL FAIL OF THEIR ESSENTIAL PURPOSE. NEITHER PARTY SHALL 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) INTERRUPTION OF USE OR FOR LOSS  OR CORRUPTION OF DATA INCLUDING NONPAYMENT ONLY FOR THE AFFECTED TIME PERIOD AS A RESULT OF THE FOREGOING, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THESE TERMS, THE SERVICES PROVIDED, OR THE USE OF OR INABILITY TO USE THE SERVICES; OR (C) FOR ANY MATTER BEYOND THE AFFECTED PARTY’S REASONABLE CONTROL; WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.     MISCELLANEOUS

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.  Except in connection with a merger or sale of substantially all of its assets (a “Change in Control”) or Company’s assignment to an affiliate, this Agreement is not assignable or transferable by either Party except with the other Party’s prior written consent.  This Agreement, together with the applicable Order Forms and any Exhibits and SOWs entered by the parties, constitutes 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 all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and reasonable attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; 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.  Neither party shall be liable by reason of failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, war, acts of terrorism, public health emergencies, pandemic, epidemic, fires, flood, storm, explosions, earthquakes, Internet delays or outages, acts of God, governmental action, labor conditions, or any other cause which is beyond the reasonable control of the party. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions, and except for actions seeking injunctive relief, the parties agree to the exclusive jurisdiction of the federal and state courts in Santa Barbara County, California.  Excluding actions seeking injunctive relief, if any disputes arise between the parties, before taking formal action, the parties will use reasonable efforts to resolve the dispute through their good-faith discussions within thirty (30) days from the date that one party notifies the other of such dispute in reasonable detail.