Master Services Agreement

Last updated June 28, 2022

This Master Services Agreement (the “Agreement”) is between Blip Labs Technologies, Inc., a Deleware Corporation (“Blip”) and you (“Client,” “you,” or “your”). You and Blip may sometimes be referred to in this Agreement as a “party" or collectively as the “Parties.”

If you are entering into this Agreement on behalf of a legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the terms “you” or “your” refers to such entity.

BY CLICKING THE “ACCEPT” BUTTON, EXECUTING A SERVICE ORDER, USING OR MAKING PAYMENT FOR THE ARGYLE PLATFORM OR ANY OF THE SERVICES, OR OTHERWISE INDICATING YOUR ACCEPTANCE TO THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, OR DO NOT HAVE THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, YOU OR YOUR AUTHORIZED USERS MAY NOT ACCESS OR USE THE ARGYLE PLATFORM OR THE SERVICES DESCRIBED HEREIN. WE MAY UPDATE THIS AGREEMENT AT ANY TIME AND WILL NOTIFY YOU VIA EMAIL OR UPON YOUR NEXT LOGIN IF ANY MATERIAL CHANGES HAVE BEEN MADE; YOU WILL HAVE THIRTY (30) DAYS FROM SUCH NOTICE TO REVIEW THE UPDATED AGREEMENT, AFTER WHICH IF YOU CONTINUE TO ACCESS OR USE THE ARGYLE PLATFORM OR ANY SERVICES, YOU WILL BE DEEMED TO HAVE AGREED TO THE UPDATED AGREEMENT.

1.

Access Rights; Restrictions

1.1 Access. Subject to the Client’s compliance with the terms and conditions of this Agreement, Blip hereby agrees that during the applicable term of an order form or pricing schedule entered into under this Agreement (each, an “Order”), the Client has the non-exclusive right to: (i) internally use the package of application programming interface materials provided by Blip (the “API Package”) solely as necessary to make an application owned and operated by the Client, which application is described in such Order or otherwise approved by Blip in writing (the “Client Application”) to interoperate with the Blip services described on https://www.tryblip.com/legal/terms (collectively with the API Package, the “Services”), (ii) use the Services in such Client Application provided to consumers or businesses (the “End Users”) for the use case permitted by Blip in writing, including, but not limited to, as set forth in the applicable Order or in the Blip dashboard, and (iii) use the End User information and data provided via the Services (the “Output”) solely in such Client Application for such use case. All use of the Services and Output must be only as provided in this Agreement, only in accordance with Blip’s applicable technical user documentation and subject to the applicable use case, Client Application, and business unit restrictions (if any).

1.2 Restrictions. Unless Blip specifically agrees in writing, Client will not, and will not enable or assist any third-party to: (i) attempt to reverse engineer (except as permitted by law), decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services; (ii) modify, translate, or create derivative works based on the Services; (iii) make the Services or Output available to, or use the Services or Output for the benefit of, anyone other than Client or End Users; (iv) sell, resell, license, sublicense, distribute, rent or lease any Services or Output to any third-party, or include any Services or Output in a service bureau, time-sharing, or equivalent offering; (v) publicly disseminate information from any source regarding the performance of the Services or Output; or (vi) attempt to create a substitute or similar service through use of, or access to, the Services or Output. Client will use the Services and Output only in compliance with (a) the rights granted hereunder, (b) the Blip Terms of Service (available at https://www.tryblip.com/legal/terms), and (c) any agreements between Client and End Users (for clarity, including, but not limited to, any privacy policy or statement). Notwithstanding anything to the contrary, the Client accepts and assumes all responsibility for complying with all applicable laws and regulations in connection with all of Client’s activities involving any Services, Output, or End User data. In addition, Client acknowledges and agrees that Blip is neither a “consumer reporting agency” nor a “furnisher” of information to consumer reporting agencies under the Fair Credit Reporting Act (“FCRA”) and the Output is not a “consumer report” under the FCRA and cannot be used as or in such. Client represents and warrants that it will not, and will not permit or enable any third-party to, use the Services (including Output) as a, or as part of a, “consumer report” as that term is defined in the FCRA, or otherwise use the Services (including Output) such that the Services (including Output) would be deemed “consumer reports” under the FCRA. Client will comply with the provisions set forth in any product- specific exhibit, addendum, or other document attached to this Agreement, but such provisions will only apply if Client uses the Service set forth in such document.

1.3 Ownership. Except for the rights expressly granted under this Section 1, Blip reserves and retains all right, title, and interest in and to the Services which includes but is not limited to the API Package and any related Output (except for raw End User data, which belongs to the End User), software, products, works, and other intellectual property created, used, or provided by Blip for the purposes of this Agreement. To the extent the Client provides Blip with any feedback relating to the Services (including, without limitation, feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), Blip will own all right, title and interest in and to such Feedback (and the Client hereby makes all assignments necessary to achieve such ownership).

1.4 Privacy and Authorizations. Before any End User engages with the Client Application in a manner that uses the Services, the Client warrants and will ensure that it provides all notices and obtains all consents required under applicable law to enable Blip to process End User data in accordance with Blip’s privacy policy (currently available at https://www.tryblip.com/legal/privacy). Client will not (i) make representations or other statements with respect to End User data that are contrary to or otherwise inconsistent with Blip’s privacy policy or (ii) interfere with any independent efforts by Blip to provide End User notice or obtain End User consent.

1.5 Permitted Users. Client may permit its employees, agents, contractors and service providers to access the Services and Output on Client’s behalf (“Permitted Users”), provided that Client remains responsible for their compliance with all of the terms and conditions of the Agreement (including without limitation terms relating to use of Services and Output) and that any such use of the Output and Services is for the sole benefit of Client. Client is responsible under Section 2 (Payments) of the Agreement for any fees or charges incurred by its Permitted Users in their use of the Services. If Client enables any third parties as Permitted Users, Client (and not Blip) remains solely responsible for its relationships with such third parties and for any related billing matters, technical support, or disputes.

2.

Payments

Client will pay Blip for the Services as set forth in each Order entered into under this Agreement (the “Payments”). Unless otherwise specified in an Order, Payments must be made within thirty (30) days from the date of Blip’s invoice. Unpaid invoices are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection. The Client will be responsible for all (i) taxes associated with Services other than taxes based on Blip’s net income and (ii) Blip’s costs of collection in the event of the Client’s delinquent payment. All Payments made are non-refundable, non-cancellable, and not subject to set-off unless otherwise specified in an Order.

3.

Term; Termination

3.1 Term of Agreement. This Agreement will commence on the Effective Date and will continue in effect unless terminated in accordance with this Agreement. On the effective date of termination of this Agreement, as set forth in this Section 3, all issued Orders under the Agreement will also terminate unless otherwise agreed by Blip and the Client.

3.2 Term of Orders. Unless otherwise specified in the Order, (i) each Order will have a term of twelve (12) months (an “Initial Term”) beginning on the effective date of such Order; (ii) after the Initial Term, such Order will automatically renew for one (1) year periods (each a “Renewal Term”) unless either party provides the other party with at least sixty (60) days’ written notice prior to the end of the Initial Term or the Renewal Term; and (iii) Blip may revise its rates for the following Renewal Term by providing Client with at least seventy-five (75) days’ written notice prior to the end of the then-current Initial Term or Renewal Term.

3.3 Termination.

3.3.1 For Cause. Either party may terminate this Agreement and any applicable Orders in the event the other party materially breaches the terms of this Agreement or any Order and fails to cure such breach within ten (10) days from receipt of written notice thereof. In addition, Blip may immediately suspend the Services in the event it determines or believes that (a) there is unauthorized access to the Services via Client’s account, (b) continued provision of the Services may do material harm to Blip or its networks or systems or reputation or subject Blip to liability, or (c) Client materially breached Section 1 or 2 of this Agreement. For clarity, notice of termination for an Order shall not be construed to be notice of termination for this Agreement or for any other Order.

3.3.2 For Convenience. If there are no active Orders, either party may terminate this Agreement for any reason and without cause upon at least thirty (30) days’ prior written notice to the other party.

3.3.3 Effect of Termination. Upon termination of an Order, all rights granted to Client with respect to such Order will terminate and Client will make no further use of the terminated Services or the applicable API Package (copies of which will be immediately returned to Blip or destroyed). But for Section 1.1 with respect to any terminated Order, all provisions of this Agreement will remain in force in the event of any Order or this Agreement’s termination.

4.

Confidentiality

During the term of this Agreement, each party (a “Disclosing Party”) may disclose, under this Agreement, the other party (a “Receiving Party”) with confidential and/or proprietary materials and information of the first party (“Confidential Information”). All materials and information disclosed by Disclosing Party to Receiving Party under this Agreement and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all such other information that the Receiving Party reasonably should have known was the Confidential Information of the Disclosing Party, will be considered Confidential Information; for the avoidance of doubt, the Service, all pricing information and terms of this Agreement, are Confidential Information of Blip. Receiving Party will maintain the confidentiality of the Confidential Information and will not disclose such information to any third-party without the prior written consent of Disclosing Party. Receiving Party will only use the Confidential Information internally for the purposes contemplated under this Agreement. The obligations in this Section 4 will not apply to any information that: (i) is made generally available to the public without breach of this Agreement, (ii) is developed by the Receiving Party independently from the Disclosing Party’s Confidential Information, (iii) is disclosed to Receiving Party by a third-party without restriction, or (iv) was in the Receiving Party’s lawful possession prior to the disclosure to the Receiving Party and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party. Receiving Party may disclose Confidential Information as required by law or court order; provided that, Receiving Party provides Disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon Disclosing Party’s request, Receiving Party will return to Disclosing Party all Disclosing Party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof. Notwithstanding the foregoing, (a) Receiving Party may disclose Confidential Information to any third-party to the limited extent necessary to exercise its rights, or perform its obligations, under this Agreement; provided that, all such third parties are bound in writing by obligations of confidentiality and non-use at least as protective of the Disclosing Party’s Confidential Information as this Agreement and (b) all Feedback and the API Package will be solely Blip’s “Confidential Information.”

5.

Indemnity

The Client will defend, indemnify and hold Blip harmless from and against all third-party claims, actions, proceedings, regulatory investigations, damages, losses, judgments, settlements, costs and expenses (including attorneys’ fees), arising from or in connection with: (i) Client breach of any laws or regulations (including with respect to privacy); (ii) Client’s use of the Services and Output; or (iii) Client’s violation of any agreements it has with any End User.

Blip will defend, indemnify and hold Client harmless from and against all third-party claims, actions, proceedings, damages, losses, judgments, settlements, costs and expenses (including attorneys’ fees) to the extent arising from any infringement or misappropriation of any copyright or US patent right of such third party by Blip’s technology used to provide the Service. Notwithstanding the foregoing, Blip will have no obligation or liability under this paragraph arising out of (i) use of any Service in a modified form or in combination with software, hardware, or other materials not furnished by Blip, (ii) use or other exploitation of any Service in breach of this Agreement, or (iii) failure to use a replacement, modification, or other update to the Service.

If Blip believes that the Service is likely to become the subject of an infringement claim, Blip may (i) obtain the right for Client to continue to use such Service or (ii) replace or modify the Service at no additional cost or expense so as to make it non-infringing and substantially comparable in functionality. If after using commercially reasonable efforts Blip is unable to do either (i) or (ii) above, Blip may suspend or terminate Client’s use of the affected Service (with a pro-rata refund of any unused, prepaid fees for the Service).

The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that (i) any settlement requiring the party seeking indemnification to admit liability requires written consent, not to be unreasonably withheld or delayed and (ii) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE WILL BE CLIENT’S ONLY REMEDY UNDER THIS AGREEMENT FOR ANY INFRINGEMENT, MISAPPROPRIATION, OR OTHER VIOLATION BY BLIP OF A THIRD PARTY’S INTELLECTUAL PROPERTY OR OTHER RIGHTS.

6.

Warranty; Disclaimer

THE SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER BLIP NOR ITS AFFILIATES, SUPPLIERS, LICENSORS, AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY WARRANTY THAT THE SERVICES ARE FREE FROM DEFECTS. BLIP DOES NOT MAKE ANY WARRANTY AS TO THE OUTPUT THAT MAY BE OBTAINED FROM USE OF THE SERVICES.

7.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY NOR ITS AFFILIATES, SUPPLIERS, LICENSORS, AND DISTRIBUTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR ANY: (A) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES; (B) LOSS, ERROR, OR INTERRUPTION OF USE OR DATA (IN EACH CASE, WHETHER DIRECT OR INDIRECT); OR (C) COST OF COVER OR LOSS OF BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY’S AGGREGATE LIABILITY IN CONNECTION WITH EACH ORDER (INCLUDING ALL LIABILITY UNDER THIS AGREEMENT THAT ARISES AS A RESULT OF SUCH ORDER) WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY CLIENT TO BLIP DURING THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY (PROVIDED THAT, IF NO FEES ARE PAID OR PAYABLE, SUCH AMOUNTS WILL BE LIMITED TO ONE HUNDRED DOLLARS (US$100.00)). IN NO EVENT WILL THIS SECTION 7 APPLY TO EITHER PARTY’S BREACH OF SECTION 1, CLIENT’S PAYMENT OBLIGATIONS UNDER SECTION 2 FOR AMOUNTS OWED BUT NOT PAID, OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.

8.

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. This Agreement is not assignable or transferable by Client except with Blip’s prior written consent; provided, however, that Client may, upon prior written notice to Blip, transfer and assign its rights and obligations under this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates. If such a transfer or assignment is made in favor of a direct competitor of Blip, then Blip may terminate this Agreement upon written notice to Client. Blip may freely assign this Agreement. This Agreement is 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. Client hereby grants to Blip license to use, reproduce, and distribute Client’s trademarks, service marks, trade names, and logos (“Client Marks”) on Blip’s website, advertising, promotional, or other marketing materials relating to the Services during the Initial Term and any Renewal Term. No agency, partnership, joint venture, or employment is created as a result of this Agreement. Any notices to either party in connection with this Agreement will be delivered via email to Client’s account email address or to Client’s Blip account manager, as specified in an Order. Email notice will be permitted by Blip if sent to the Client’s account email address. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to, acts of God, power outages, governmental actions and requirements, and the acts and omissions of Blip’s data suppliers. This Agreement will be governed by the laws of the State of Delaware, without regard to the conflict of law provisions thereof. The application of 1980 United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement will be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by a single arbitrator appointed in accordance with such Rules. The arbitration will take place in Delaware, in the English language and the arbitral decision may be enforced in any court. With respect to all disputes arising in relation to this Agreement, but subject to the preceding arbitration provision, the parties’ consent to exclusive jurisdiction and venue in the state and Federal courts located in Delaware.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.