Master Services agreement

1.      Service Subscription

1.1 Provision of Services. Tenyx will provide certain services ("Services") described in the this Agreement and (“Instructions”) leveraging the Tenyx Platform. In performing the Services, Tenyx will use reasonable care to minimize disruptions to Customer’s operations. Tenyx may, at its discretion, engage third parties to assist in performing the Services. Tenyx must ensure that, all third parties engaged by Tenyx to perform Services under this Agreement or with access to Customer’s Data or Confidential Information shall sign an agreement with data protection provisions and confidentiality provisions consistent with Tenyx’s obligations for the same under this Agreement.

1.2 Third party materials      The Services may include or operate in conjunction with materials and information, including any software (including open source software), data, equipment, or components of, or relating to, the Services that are not proprietary to Tenyx (“Third Party Materials”). All Third Party Materials are provided pursuant to the terms and conditions of the applicable third party license agreements. Tenyx must provide Customer with all applicable third party license agreements for all Third Party Materials and Customer will comply with such agreements in using the Third Party Materials.

2.  Annual Subscription and Additional Per Minute Fees; Payment Terms.

2.1     Fees.    Customer shall pay Tenyx the fees set forth in the Order Form and in accordance with this Section 2 (the “Subscription Fees”), to be invoiced by Tenyx at the beginning of each calendar month.

2.2 Reimbursable Expenses. Customer shall reimburse Tenyx for out-of-pocket expenses incurred by Tenyx in connection with performing the Services (“Reimbursable Expenses”).

2.3 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Tenyx’s income.

2.4 Payment. Customer shall pay all Subscription Fees within thirty (30) days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars by wire transfer of immediately available funds to the bank account designated by Tenyx.

2.5 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, Tenyx may charge interest on the past due amount at the rate of one percent (1%) per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; Customer shall reimburse Tenyx for all reasonable costs incurred by Tenyx in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and if such failure continues for thirty (30) days following written notice thereof, Tenyx may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other person by reason of such suspension.

2.6 No Deductions or Setoffs. All amounts payable to Tenyx under this Agreement shall be paid by Customer to Tenyx in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).

3. Customer Obligations.

3.1 Customer Data. Customer shall provide Tenyx with access to Customer’s relevant systems and data (including as specified in the Order Form) required for Tenyx to provide the Services. Customer shall (and shall cause its relevant employees to) be reasonably available to assist in Tenyx’s efforts to perform the Services. Customer acknowledges that in connection with Tenyx’s provision of the Services, Tenyx may obtain, collect or process data and content related to Customer, its customers, employees and agents (collectively, “Customer Data”). Tenyx will use commercially reasonable measures to safeguard Customer Data.

3.2 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair all information technology infrastructure (“Customer Systems”) on or through which the Services are accessed or used; (b) provide Tenyx with such access to Customer’s premises and Customer Systems as is necessary for Tenyx to perform the Services in accordance with the availability requirement and specifications; and (c) provide all cooperation and assistance as Tenyx may reasonably request to enable Tenyx to exercise its rights and perform its obligations under and in connection with this Agreement.

3.3 Effect of Customer Failure or Delay. Tenyx is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).

3.4 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by this Agreement, Customer shall immediately: (a) take all reasonable and lawful measures within its control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and the Tenyx Platform and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Tenyx of any such actual or threatened activity.

4. Service Levels.

4.1 Service Levels. Subject to the terms and conditions of this Agreement, Tenyx will use commercially reasonable efforts to make the Services Available at least ninety-nine and one half percent (99.5%) of the time as measured over the course of each calendar year during the Term (each such calendar year, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below in this Section 4.1 (the “Availability Requirement”). “Service Level Failure” means a material failure of the Services to meet the Availability Requirement. “Available” means the Services are available for access and use by Customer over the Internet and operating in material accordance with the specifications. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer to access or use the Services that is due, in whole or in part, to any: (a) act or omission by Customer, access to or use of the Services by Customer, that does not strictly comply with this Agreement; (b) Customer’s Internet connectivity; (c) a Force Majeure Event; (d) failure, interruption, outage or other problem with any Customer Systems or other software, hardware, system, network, facility or other matter not supplied by Tenyx pursuant to this Agreement; (e) Scheduled Downtime or emergency maintenance; or (f) disabling, suspension or termination of the Services pursuant to Section 10.2.

4.2 Scheduled Downtime. Tenyx will use commercially reasonable efforts to (a) schedule downtime for routine maintenance of the Services outside of business hours; and (b) give Customer at least twenty-four (24) hours prior notice of all scheduled outages of the Services (“Scheduled Downtime”).

5. Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. TENYX HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.

6. Security

6.1 Tenyx Systems and Security Obligations. Tenyx will employ security measures in accordance with applicable industry practice.

6.2 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer in connection with the Services; (c) Customer Systems; and (d) all access to and use of the Services directly or indirectly by or through the Customer Systems, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.

6.3 Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.

7. Intellectual Property.

7.1 Independent IP. As between the parties, each party shall be the sole and exclusive owner of: (a) the intellectual property owned by such party prior to the Effective Date; and (b) the intellectual property developed by such party independent of this Agreement.

7.2 Tenyx IP.  As between the parties, Tenyx owns all right, title and interest, including all intellectual property rights, in and to all intellectual property developed by Tenyx in connection with this Agreement.  Tenyx further owns all right, title and interest in and to all technologies, models, algorithms, products, works, inventions, outputs, data and other artifacts created, developed, trained or otherwise resulting from the exercise of the license set forth in Section 7.3 (“Platform Technology”) and all of its other technology, data, products, services, trademarks and other intellectual property. For the avoidance of doubt, Tenyx’s ownership of the Platform Technology and all intellectual property therein shall not imply any right, title or interest in any Customer Materials including Customer Data, the rights in which shall be limited to the rights granted by Customer in Section 7.3 below.

7.3 Customer Data License As between the parties, Customer owns and shall retain all right, title and interest, including all intellectual property rights, in and to the Customer Data and any other Customer Materials. Customer hereby grants to Tenyx a nonexclusive, worldwide, royalty-free license during the Term to use, compile, distribute, display, store, process, reproduce, and create derivative works of the Customer Data and any other Customer Materials for Tenyx’s provision of the Services and for Tenyx’s general development and commercialization of products and services. “Customer Materials” means all materials, data, information and technology (including documents, Customer Data, specifications, software) that are provided to Tenyx by or on behalf of Customer or collected by Tenyx while performing the Services under this Agreement.

8. Confidentiality. All information or materials disclosed under this Agreement, whether written or oral, of a nature proprietary or confidential to the party disclosing such information (the “Disclosing Party”) shall be considered “Confidential Information” of that party, and the party receiving such information or materials (the “Receiving Party”) shall keep such Confidential Information confidential and private and shall not disclose such Confidential Information to any person other than its affiliates, directors, officers, employees, agents or subcontractors who have a need to know such Confidential Information and who are under an obligation of confidentiality consistent with the terms of this Agreement. Either Party may disclose the terms and existence of this Agreement to their current and prospective investors, current and prospective acquirers and its and their bona fide professional advisers; however under no circumstances shall such disclosure include any other Confidential Information of the other Party. The obligations of this Section shall not apply to information or materials that are available in the public domain or that become available through no fault of the Receiving Party, information or materials learned by the Receiving Party from a third party not subject to a duty of confidentiality to the Disclosing Party, information that was already known to the Receiving Party before receipt from the Disclosing Party (as evidenced by such Receiving Party’s prior records), information or materials that are independently developed by the Receiving Party (as evidenced by such Receiving Party’s records made in the ordinary course of business) or information that the Receiving Party is required to disclose by law, regulation or court order to disclose, provided that the Disclosing Party is given as much prior notice and opportunity to restrict or limit such disclosure as the circumstances permit. Upon any termination of this Agreement, each party shall return or destroy all Confidential Information of the other party in their possession or control, provided that Tenyx shall be permitted to retain a copy of Customer Materials including Customer Data for all purposes required or permitted by applicable law.

9. Term and Termination

9.1 Term.  The initial term of this Agreement commences as of the Effective Date and will continue in effect for ninety (90) days (the “Initial Term”). This Agreement will automatically renew for up to additional successive thirty (30) day terms unless either party gives the other party written notice of non-renewal (i) immediately following the Initial Term or (ii) at least (30) days prior to the expiration of the then-current renewal term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”).

9.2 Termination

(a) Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.

(b) Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (ii) makes or seeks to make a general assignment for the benefit of its creditors; or (iii) applies for or has appointed 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.

9.3 Surviving Terms.  The following Sections will survive any expiration or termination of this Agreement: Sections 2.5, 7, 8, 10, 11, 12 and 13.

10. Representations and Warranties.

10.1 Tenyx Warranties. Tenyx represents and warrants that

(a) It has taken all corporate action necessary for the authorization, execution and delivery of this Agreement, and this Agreement is a legal, valid and binding obligation enforceable against it in accordance with the terms of this Agreement;

(b) Tenyx and its employees, agents and subcontractors performing Services have the required skill, experience and qualifications to perform the Services; and

(c) Tenyx will perform the Services in a professional and workmanlike manner with a high standard of care, skill and diligence and in compliance with all applicable laws, rules, statutes, decrees, decisions, orders, regulations, judgments, codes, ordinances, and requirements of any government authority (federal, state, local, or international) having jurisdiction (“Applicable Law”) that to its knowledge relate to the Services.

10.2 Customer Warranties. Customer represents and warrants that:

(a) It has taken all corporate action necessary for the authorization, execution and delivery of this Agreement, and this Agreement is a legal, valid and binding obligation enforceable against it in accordance with the terms of this Agreement;

(b) Customer owns or otherwise has and will have made all disclosures and obtained all necessary rights and consents in and relating to the Customer Data and other Customer Materials so that, as received by Tenyx and used in accordance with this Agreement, the Customer Materials do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or other rights of any third party or violate any applicable law; and

(c) The Instructions, and Tenyx’s provision of Services in accordance with the Instructions, complies with all Applicable Laws.

10.3 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TENYX HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TENYX SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. TENYX MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE.

11. Indemnification.

11.1 Tenyx Indemnification. Tenyx shall indemnify, defend, and hold harmless Customer and, if applicable, their respective directors, officers, agents, employees, successors and assigns, from and against any and all losses, damages, liabilities, and costs (including reasonable, out-of-pocket attorneys’ fees) (“Losses”) incurred by Customer resulting from any third party claim (“Third Party Claim”) that the Services as performed in compliance with this Agreement (including the Instructions) infringes or misappropriates such third party’s intellectual property rights. If such a claim is made or appears possible, Tenyx may, at Tenyx’s sole discretion, (a) modify the Services, to make it non-infringing; or (b) obtain the right to continue providing the Services in compliance with this Agreement (including the Instructions). If Tenyx determines that neither alternative is reasonably available, Tenyx may terminate this Agreement, effective immediately on written notice to Customer. This Section 11.1 will not apply if the alleged infringement arises from Third Party Materials or the use of Customer Data or other Customer Materials.

11.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at Tenyx’s option, defend Tenyx and, if applicable, its respective directors, officers, agents, employees, successors and assigns, from and against any Losses resulting from (a) any claim that the Services as performed in compliance with this Agreement (including the Instructions) (i) violate any Applicable Law or (ii) violate or abridge any data privacy rights or other rights of any third party or (b) any investigation, censure or similar action from a governmental or regulatory body with jurisdiction over the activities contemplated by this Agreement.

12. Limitations of Liability IN NO EVENT WILL TENYX BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS SET FORTH ABOVE, IN NO EVENT WILL TENYX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO TENYX UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIM ARISING.

13. Miscellaneous.

13.1 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.

13.2 Notices. All notices, consents, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), emails or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (a) upon receipt by the receiving party; (b) if the party giving the Notice has complied with the requirements of this Section; and, in cases where notice is sent by e-mail (c) when the receiving party replies to the e-mail with an acknowledgment.

13.3 Force Majeure.  No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such party’s failure or delay is caused by or results from the following events (each, a “Force Majeure Event”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) national or regional emergency; (f) pandemics, epidemics, and other biological crisis; and (g) other similar events beyond the reasonable control of the impacted party.

13.4 Non-Solicitation. During the Term and for twelve (12) months thereafter, neither party shall not, and shall not assist any other person to, directly or indirectly recruit or solicit (other than by general advertisement not directed specifically to any person or persons) for employment or engagement as an independent contractor any employee of the other party involved in any respect with the Services or the performance of this Agreement.

13.5 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof.

13.6 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

13.7 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of this Agreement will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city of San Francisco, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

13.8 Assignment.  Neither party may assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the other Party, except to an affiliate of such party or to a successor in interest in connection with a sale of substantially all of the assets of the business of such party to which this Agreement relates.  Any purported assignment or delegation in violation of this Section will be null and void.  This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.

13.9 Counterparts.  This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

13.10 Publicity.  Tenyx may disclose the existence of its relationship with Customer to its existing and potential investors and customers, subject to Customer’s right to approve the publication of Customer’s quotes, trademarks, service marks, trade names or logos on Tenyx’s website.