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    Master Service Agreement

Kuia Master License & Services Agreement

Last Updated May 07, 2017

This Master Services Agreement (“Agreement”) sets forth the general terms and conditions under which Kuia, Inc. located at 340 S Lemon Avenue #1234 Walnut, CA 91789 (“We”, “Us”, “Our”) will deliver the Services to Customer (“You”, “Your”). The specific Services to be delivered are detailed in the signed Order Form which references this Master Services Agreement.

  1. DEFINITIONS

1.1 “Application” means the individual interactive work You create using the Services.

1.2 “Content” means all text, images, videos, graphics which You use to create Your Application. Content may be provided by You or provided by Us via the Services.

1.3 “Impression” means the loading or partial loading of a Kuia application on any platform or device as counted solely by Kuia.

1.4 “Services” means the online, web-based software and platform, social network applications, and embeddable “widgets” provided by Us via

https://www.kuia.com, https://app.kuia.com including associated offline components, and components that interface with third party websites.

1.5 “User Seat” is defined as an identified individual who is entitled to receive training, onboarding, support or ideation from Kuia. Each User Seat will be provided with a separate loginID in order to access the Kuia Platform. Each loginID may only be used by the specific Individual it is assigned to.

  1. USE OF SERVICES.

We shall make the Services available to you subject to the terms of a signed Order Form, which shall include a description of the license package you have subscribed to, the subscription period, pricing and payment terms and the domains where you may deploy Applications. The Services are provided to you “as is” without any representation or warranty except as expressly set forth in this Agreement, and You agree and understand that Your receipt of the Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us or any third party regarding future functionality or features of any Services.

2.1 Acceptable Use Terms. We and You will comply at all times with all applicable laws and regulations with respect to the exercise of rights and obligations hereunder. Without limiting the foregoing, neither You nor any individual assigned a User Seat by You shall use the Services in connection with any (i) infringement or misappropriation of any intellectual property right of any third party; (ii) defamation, libel, slander, obscenity, or violation of the rights of privacy publicity of any third party; (iii) other offensive, harassing or illegal conduct; or (iv) collection of any Sensitive Personal Information as defined in Section 3.3.

2.2 Size Limitations. The total size of each Application You create may not exceed 15 MB and You may not push more than 10 GB of data per month through the Services. In the event of exceeding these limits we may charge additional fees, to be agreed between the parties, but not less than the good faith estimate of the actual costs borne by Us.

2.3 Service Provision. We shall use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 24 hours notice via the Services), or (b) any unavailability caused by circumstances beyond Our reasonable control.

2.4 Customer Support. We will provide telephone and e-mail customer service support to You during business hours, 9:00AM–5:00PM Pacific Time Monday through Friday, excluding national holidays, to assist in resolving problems with the Services.

2.5 Proprietary Rights and License Grant. We shall own all right and title in and to the Services. For the term of any subscription periods detailed in applicable Order Forms, We grant to You a non-exclusive, worldwide right and license, to use the Services solely to create Applications. We shall similarly own all right and title in and to all Content provided by Us via the Services. Conversely, You shall own all right and title in and to any and all Content and works You create using the Services.

 

  1. DATA PROTECTION.

3.1 “Customer Data” means personally identifiable information (PII) collected from You and Your employees in connection with your use of the Services and is subject to the Kuia Privacy policy located at https://www.kuia.com/privacy.

3.2 “End User Data” means data or information submitted to the Services by individuals who interact with Applications You have built using the Services. Such information includes both “system data” relating to end users interaction with Applications as well as any personally identifiable information including, but not limited to, name, gender, postal address, email address, phone, and birthdate (PII) collected as part of the engagement. You are the controller of End User Data collected via the Services and we will only store and process such data on your behalf. End User Data will therefore be subject to the privacy policy which You establish and communicate to End Users and will not be subject to the Kuia Privacy Policy available on Our website.

3.3 “Sensitive Information” You may not use the Services to collect Sensitive Information, defined as credit or debit card numbers, personal financial account information, Social Security numbers, passport numbers, driver’s license numbers or similar identifiers, racial or ethnic origin, physical or mental health condition or information, or other employment, financial or health information.

3.4 Protection of Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Customer Data and Your End User Data (“Your Data”, collectively).

3.5 Ownership of Data. You shall retain all rights and title to all End User Data collected via the Services. You grant Us an irrevocable royalty free license to use aggregated, non-identifiable “system data” generated by Your Use of the Services, including individuals’ interactions with Your Applications, in order to maintain and improve the Services.

  1. PAYMENT

4.1 Invoices and Payment. Fees and payment terms for using the Services fees are stated in the Order Form. Except as otherwise specified in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on Services purchased and not actual usage (with the exception of overage impression fees), and (iii) payment obligations are non-cancelable and fees paid are non-refundable, except in the case of termination for cause by You. Acceptable payment methods include check and ACH. Other payment methods may be agreed in writing between the parties. If any charges are not received from You by the due date, then at Our discretion such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is greater, from the date such payment was due until the date paid.

4.2 Suspension of Service. If any amount owing by You under this Agreement for Our Services is 60 or more days overdue We may, in our sole discretion and without limiting Our other rights and remedies, suspend Your access to the Services. Such suspension shall not limit our rights to collect all fees due under the signed Order Form.

4.3 Taxes. Our pricing excludes all applicable federal, state and local sales, use, excise or other taxes or assessments, however designated or levied, relating to this Agreement. If applicable, We will clearly indicate on the invoices the amount applicable for any such taxes and You will be responsible to pay such amounts unless You provide a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.

  1. CONFIDENTIALITY

5.1 “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be non-public or confidential given the nature of the information and the circumstances of disclosure. Our Confidential Information shall include, but not be limited to, the Services. Confidential Information of each party shall also include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

5.2 Obligation to Protect Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement. A party does not violate its obligations under this Section if it provides Confidential Information in response to a court order or other governmental body or is otherwise required to do so by operation of law; provided, however, that the party required to disclose Confidential Information of the other party shall notify the other party as soon as possible after learning of the disclosure obligation and shall cooperate with the other party, at the other party’s expense, in seeking to limit or prevent such disclosure.

5.3 Publicity. Notwithstanding the foregoing, upon execution of this agreement, We may use your name, logo and any publicly available Application that you create using the Services for public relations and marketing purposes. This provision shall survive the expiration or termination of this Agreement.

  1. REPRESENTATIONS AND WARRANTIES

6.1 Our Responsibilities.

6.1.1 We warrant that We are authorized to enter into this Agreement and provide the Services. We further warrant that the Services shall perform materially as presented by Us in marketing and other materials. .

6.1.2 We shall provide the Services performed under this Agreement in a professional manner consistent with industry standards, but with not less than reasonable care.

6.1.3 We shall use commercially reasonable efforts to ensure that any software used to provide the Services will not contain Malicious Code, defined as viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

6.1.4 In the event that the Services, or any portion thereof is held, or in Our reasonable good-faith business judgment is likely to be held, to infringe the rights of any third party, then We, in Our discretion and at Our expense, will (i) secure for You the right to continue to use such Services or the infringing portion(s) thereof; (ii) replace such Services or the infringing portion(s) thereof with a substantially equivalent, non-infringing item; or (iii) modify such Services or the infringing portion(s) thereof (without materially adversely affecting the functions, features of utility of such Services), so that such Services become non-infringing. In the event that We are unable to remedy the infringement, in accordance with the foregoing sentence, then We may terminate Your right to continue to use the infringing Services or the infringing portion(s) thereof and refund to You the portion of the fees paid for the infringing Services or the infringing portion(s) thereof, applicable to the unutilized portion of the Term.

6.2 Your Responsibilities. You represent and warrant that You are authorized to enter into this Agreement and shall: (i) be responsible for Your employees’ compliance with this Agreement; (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly in writing of any such unauthorized access; and (iii) use the Services in material compliance with the directions We provide and all applicable laws and government regulations. You further warrant that You shall not: (i) sell, license, sublicense, resell, rent or lease the Services to any party; (ii) use the Services to create, store, transmit libelous, or otherwise unlawful or tortious material or content, or to create, store or transmit material in knowing violation of third-party privacy rights; (iii) use the Services to promote any website, product, or service that is involved in unlawful or illegal activities; (iv) attempt to gain unauthorized access to the Services or their related systems or networks; (v) access the Services for competitive purposes; or (vi) use the Services to collect or access Sensitive Information.

6.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

  1. MUTUAL INDEMNITY

7.1 Indemnification by Us. We shall defend You, your parent companies, subsidiaries, affiliates, directors, owners, shareholders, officers, employees, consultants and agents (“Your Group”) against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a third party (a) alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, or (b) any breach of this Agreement by Us, and shall indemnify, defend, and hold You harmless for any damages arising out of such third party allegations and for reasonable attorney’s fees and costs incurred by You in connection with any such Claim; provided that You (i) promptly give Us written notice of the Claim; and (ii) provide to Us all reasonable and necessary assistance in defending such Claim, at Our expense.

7.2 Indemnification by You. You shall defend Us, and our parent company, subsidiaries, affiliates, directors, owners, shareholders, officers, employees, consultants and agents (“Our Group”) against any Claim made or brought against Our Group by a third party (a) alleging that Your Data, Your Application(s), or Your use of the Services in violation of this Agreement, infringes or misappropriates the rights of a third party or violates applicable law, or (b) any breach of this Agreement by You, and shall indemnify, defend, and hold Our Group harmless for any damages arising out of such Claim and for reasonable attorney’s fees and costs incurred by Our Group in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; and (b) provide to You all reasonable assistance in defending such Claim, at Our expense.

  1. LIMITATION ON LIABILITY

8.1 Cap on Liability. Except for matters for which we have agreed to indemnify You under Section 7.1(a) or You have agreed to indemnify Us under Section 7.2(a), or if either party breaches its obligations under Section 5.2, each party’s liability arising out of or in connection with this Agreement, whether based on warranty, contract, tort or otherwise shall not exceed the amount of fees paid or payable in the twelve months preceding the date that that liability arose.

8.2 No Indirect Damages. Neither party will be liable to the other for any consequential, incidental, indirect, punitive or special damages whatsoever arising from any cause or connected in any way with this Agreement, even if the possibility thereof is known or should have been known.

  1. TERM AND TERMINATION

9.1 Term. This Agreement shall commence as of the date and shall continue for the period set forth in the Order Form (“Initial Term”). Thereafter, the contract will renew as per the terms set form in the Order Form or upon the parties written consent.

9.2 Termination For Cause. Either party may terminate this Agreement for cause: (i) upon ten (10) business days written notice to the other party of a material breach if such breach remains uncured at the expiration of such ten (10) day period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Additionally, We may terminate this Agreement for cause without prior notice to You if you violate Section 3.3 (Sensitive Information).

9.3 Effects of Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

9.4. Return of Your End User Data. Upon written request by You made within 30 days after the effective date of termination, We will make available to You for download a file of Your End User Data in comma separated value (.csv) format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data.

9.5. No Return of Your Application(s). Your Application(s) is/are created within the Services and is/are dependent upon the Services for its/their existence. As such, it is not possible for Us to export, reproduce, or deliver to you a file containing Your Application(s) in any format.

9.6. Surviving Provisions. Sections 2.5 (Proprietary Rights), 3.5 Ownership of Data, 4 (Payment), 5 (Confidentiality), 6.3 (Disclaimer), 7 (Mutual Indemnification), 8 (Limitation of Liability), 9.3 (Effects of Termination), 9.4 (Return of Your End-User Data), 10. (General Provisions) shall survive any termination or expiration of this Agreement.

  1. GENERAL PROVISIONS

10.1 Controlling Law. This Agreement shall be governed by and construed according to the laws of the State of California, without regard to any conflict of laws provisions. The parties agree that jurisdiction and venue for any dispute relating to or arising out of this Agreement shall occur solely and exclusively in any federal or state court within the San Mateo County, California, and the parties voluntarily and irrevocably consent to jurisdiction of such courts for the adjudication of any such dispute.

10.2 Notices. Any notices required or permitted by this Agreement shall be in writing and shall be delivered to the persons identified on the Order Form: (i) by overnight courier upon written verification of receipt; (ii) or email; or (iii) by certified or registered mail, return receipt requested, upon verification of receipt. Notices shall be sent to the addresses set forth on the Order Form or as amended in writing by the parties.

10.3 Export. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and You shall not permit Your employees or third parties to access or use Services in violation of any U.S. export embargo, prohibition or restriction.

10.4 Assignment. Neither party may assign this Agreement or any rights or delegate any duties hereunder without the prior written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any entity that assumes this Agreement agrees to be bound by all of its terms without modification as a condition to the consent to assign the Agreement.

10.5 Waiver and Amendments. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of that party’s rights or the provision, nor shall it be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself. All waivers must be in writing and signed by the party charged with the waiver. This Agreement may only be amended in a subsequently-dated writing signed by authorized representatives of the parties.

10.6 Severability. If any provision of this Agreement is determined to be unenforceable or invalid under applicable law or be so held by applicable court decision, then such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. In such event, the invalid or unenforceable provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law and court decisions.

10.7 Independent Contractors.The relationship of the parties under this Agreement is that of independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, employment or agency relationship. Neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party.

10.8 Entire Agreement. This Agreement states the complete understanding and agreement of the parties regarding the subject matter herein. It supersedes all prior or contemporaneous proposals, agreements or other communications between the parties, oral or written, regarding the subject matter.