Scale Master Services Agreement

Last Updated: November 9, 2018

This Master Services Agreement (“Agreement”) is entered into between Scale Labs, Inc. (“Scale”) and the customer agreeing to these terms (“Customer”) as of the Effective Date (as defined below). This Agreement sets forth the terms and conditions under which Customer may use the Services. By accepting this Agreement, including by executing an Order Form that references this Agreement or clicking “I agree,” “Activate” or similarly named button, Customer agrees to the terms of this Agreement and represents that the person accepting this Agreement has the authority to bind Customer to this Agreement.

  1. SERVICES

    1.1 Provision of Services. Customer and End Users may access and use the Services in accordance with this Agreement and the Documentation.

    1.2 Security. Scale will implement and maintain an industry-standard information security program with administrative, physical, and technical safeguards designed to protect the integrity of Customer Materials and Output. Customer acknowledges that Customer Materials and Output transmitted through the Services may be processed by Scale in the United States or in other countries in which Scale or its contractors maintain facilities.

    1.3 Changes. Scale may, at its discretion, change or update the Services from time to time. Scale will notify Customer in advance of changes to the Services that materially reduce their functionality.

  2. CUSTOMER USE OF SERVICES

    2.1 Customer Administration. Customer is responsible for designating Administrators for its Services account, maintaining updated Administrator contact information, and managing access to Administrator accounts. Administrators may provision accounts for End Users up to the maximum number set forth in an Order Form.

    2.2 Customer Responsibilities. Customer is responsible for any use of the Services through its account, including all use of the Services by Customer’s End Users. Customer is responsible for maintaining the confidentiality of account credentials used by End Users to access the Services and preventing unauthorized use of the Services. Customer may not permit sharing of End User accounts and passwords.

    2.3 Compliance. Customer and End Users may only use the Services in accordance with applicable laws and regulations, this Agreement, the Documentation, and the Acceptable Use Policy. Customer will not submit any Customer Materials containing Restricted Information to the Services without Scale’s prior written approval.

    2.4 Customer Materials. Customer may provide to Scale certain digital files and information to the Scale API (“Customer Materials) so Scale can perform the Services. Customer represents and warrants (a) that it has the necessary rights, licenses, and permissions to provide the Customer Materials to Scale and (b) that the use of Customer Materials under this Agreement will not violate or infringe the rights of any third party.

    2.5 Restrictions. Except as expressly permitted in this Agreement, Customer will not (and will not allow any Representative or third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services, (b) modify or create derivative works based on the Services, (c) sell, resell, license, copy, rent, lease, distribute, time-share the Services or Output or otherwise use the Services for the benefit of a third party, (d) remove or alter proprietary notices from the Services, or (e) to publish or distribute the Output without the prior written consent of Service Provider.

    2.6 Suspension. Scale may suspend Customer’s or End User’s right to use the Services if (a) Customer or End User’s use of the Services poses a security risk, may violate the Acceptable Use Policy, or may adversely affect the Services, Scale’s systems and infrastructure, or a third party, or (b) Customer is in breach of this Agreement. Scale will use commercially reasonable efforts to provide prompt notice of a suspension.

    2.6 Third-Party Services. If Customer uses any third-party services or products with the Services (e.g., Single Sign-On), (a) Scale will not be liable for any act or omission of the third party and (b) Scale does not warrant or support any third-party services or products.

  3. INTELLECTUAL PROPERTY RIGHTS

    3.1 Scale License. Except for the licenses expressly granted in this Agreement, this Agreement does not grant any rights and Scale owns and reserves all right, title, and interest in and to the Scale Technology. Scale grants Customer a worldwide, non-exclusive license (a) for its End Users to access and use the Services for Customer’s internal business purposes and (b) for Customer to use, reproduce, modify, and create derivative works based upon the Output for Customer’s internal business purposes. Customer may provide Output to its customers and partners for the purpose of testing and evaluating Customer’s products and services subject to confidentiality restrictions set forth in Section 6.2.

    3.2 Customer License. Except for the licenses expressly granted in this Agreement, this Agreement does not grant any rights and Customer owns and reserves all right, title, and interest in and to the Customer Materials. Customer grants Scale a worldwide, non-exclusive license (a) to use, reproduce, modify, and create derivative works based on the Customer Materials in order to provide, and support the Services and provide the data based upon the Customer Materials (“Output”) to Customer and (b) use, reproduce, modify, and create derivative works based upon the Customer Materials and Output to analyze and improve Scale’s products and services.

    3.3 Copyright Policy. Scale respects the intellectual property rights of third parties and responds to notices of alleged copyright infringement if they comply with the law. Scale reserves the right to delete Customer Materials alleged to be infringing from Customer’s Services account and terminate End Users or Customers that repeatedly infringe third-party rights.

    3.4 Suggestions. Customer may submit to Scale feedback, comments, ideas, or suggestions regarding Scale’s Services or new products and services (“Suggestions”). Scale may, in its discretion and for any purpose, (a) use, modify, and incorporate into Scale’s products and services and (b) license or sublicense the Suggestions without obligation to Customer.

    3.5 Scale Data. Scale may collect and create usage data, statistics, aggregated and anonymized data, and de-identified data derived from Customer’s use of the Services and Customer Materials (“Scale Data”). Scale may use the Scale Data (a) to provide, analyze, support, and improve Scale’s products and services and (b) create and distribute reports and materials about Scale’s products and services. Scale will not identify Customer as a source of information for any report or material described in this Section without Customer’s prior written approval.

    3.6 Customer Marketing. Service Provider may use Customer’s name, logo, and marks to (a) identify Customer as a Scale Customer on Scale’s website, (b) produce and publish a case study on its website regarding the Customer’s use of the Services, and (ii) create marketing materials such as press releases, advertisements, brochures, and other marketing materials. Upon approval by Customer, Customer shall provide a mutually agreeable quote with respect to Scale and the Services, to be used for Scale’s marketing and publicity purposes.

  4. FEES AND PAYMENT

    4.1 Fees. Customer will pay Scale the fees for the Services based on (a) the pricing plan set forth in the Order Form (the “Pricing Plan”) or (b) if the requests for Services have exceeded what is set forth in the Pricing Plan or if Customer does not have a Pricing Plan, Scale’s then-current rates. All payments are due in U.S. dollars unless otherwise indicated on the Order Form or invoice. All fees paid are non-refundable except as set forth in this Agreement and not subject to set-off.

    4.2 Invoicing & Payment. Unless otherwise set forth in a Pricing Plan, all upfront and commitment fees described in a Pricing Plan will be invoiced in advance. Other fees, including overages not covered by a Pricing Plan, will be invoiced monthly in arrears unless otherwise set forth in an Order Form. All invoices issued under this Agreement are due and payable according to the payment terms in the Order Form, if applicable, or within fifteen (15) days from invoice send date. If Customer provides Scale with credit card information for payment, Customer acknowledges that an invoice may not be sent, and Customer authorizes Scale to charge the credit card for (a) fees incurred at Scale’s then-current rates and (b) the Pricing Plan, including for any renewal Services Term. If the Customer requires the use of a purchase order or purchase order number, the Customer (a) must provide the purchase order number at the time of purchase and (b) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are void.

    4.3 Disputes & Late Payments. Customer must dispute any invoiced fees within sixty (60) days of invoice send date. Past due amounts are subject to a finance charge of 1.5% per month (or the highest rate permitted by law). Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Scale in collecting past due amounts. If Customer’s fees are past due, after providing five (5) days prior notice, Scale may suspend the Services.

    4.4 Taxes. Customer is responsible for all taxes, except those directly relating to Scale’s net income, gross receipts, or capital stock. Scale will invoice Customer for sales tax when required to do so and Customer will pay the tax unless Customer provides Scale with a valid tax exemption certificate authorized by the appropriate taxing authority.

  5. TERM & TERMINATION

    5.1 Agreement Term. The Agreement will remain in effect for the Term.

    5.2 Services Terms. Unless otherwise set forth in an Order Form, the plan for the Services after the Initial Term will automatically renew for additional one (1) year Services Terms, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the current Services Term. Scale may send a notice of different pricing at least forty-five (45) days in advance of the renewal.

    5.3 Termination. Either party may terminate this Agreement if (a) the other party is in material breach of the Agreement and fails to cure that breach within ten (10) days after receipt of written notice, or (b) the other party ceases its business operations or becomes subject to insolvency proceedings. Scale may also terminate the Agreement if it has the right to suspend the Services under Section 2.6 or in order to comply with law or regulation.

    5.4 Trial User Termination. If Customer has never executed an Order Form with Scale and has paid all fees at Scale’s then-current rates, either Scale or Customer may terminate this Agreement immediately upon notice.

    5.5 Effect of Termination. If this Agreement expires or is terminated, then (a) any fees payable under an Order Form or for Services rendered will become immediately due to be paid, (b) the rights granted by one party to the other will cease immediately except as otherwise set forth in this Section, and (c) the following Sections will survive: 2.5, 3.1(b), 3.2(b), 3.4, 3.5, 4, 5.5, 6, 7, 8, 9, 10, 11, and 12.

  6. CONFIDENTIALITY

    6.1 Definition of Confidential Information. “Confidential Information” means any business or technical information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) under this Agreement that is marked as confidential or would normally be considered confidential to a reasonable person under the circumstances. This Agreement and any Order Forms will be the Confidential Information of each party. The Scale Technology will be Confidential Information of Scale. The Customer Materials will be Confidential Information of Customer. Confidential Information will not include any information that (a) is or becomes public through no fault of the Receiving Party, (b) was known to the Receiving Party prior to receipt, (c) is obtained by the Receiving Party from a third party not under an obligation of confidentiality, and (d) is independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information.

    6.2 Obligations. The Receiving Party will use reasonable care (a) not to use the Disclosing Party’s Confidential Information for any purpose not permitted under this Agreement and (b) except as permitted by the Disclosing Party, limit access to the Disclosing Party’s Confidential Information to its and its Affiliate’s employees, contractors, and advisors, and to customers and partners as permitted in Section 3.3 (“Representatives”) who need access to the Confidential Information for any purpose permitted under this Agreement and who have agreed to confidentiality provisions with the Receiving Party containing similar protections for Confidential Information as set forth in this Agreement. Each party will be responsible for the actions of its Representatives.

    6.3 Compelled Disclosure. Each party may disclose the other party’s Confidential Information when required by law or regulation so long as the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent permitted, and reasonable assistance at the Disclosing Party’s cost to contest or limit the disclosure.

  7. DISCLAIMERS

    7.1 General. TO THE FULLEST EXTENT PERMITTED BY LAW, SCALE AND ITS AFFILIATES, LICENSORS, AND SUPPLIERS (A) MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND (B) DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SCALE AND ITS AFFILIATES, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE SERVICES OR OUTPUT ARE ACCURATE, COMPLETE, OR UNINTERRUPTED. THE SERVICES AND OUTPUT ARE PROVIDED “AS IS” AND “AS AVAILABLE.” SCALE WILL NOT BE LIABLE FOR ANY THIRD-PARTY SERVICE OR FOR ANY RESTRICTED INFORMATION RECEIVED IN BREACH OF THIS AGREEMENT.

    7.2 Beta Services. Despite anything to the contrary in this Agreement, Customer acknowledges that (a) Customer has the sole discretion whether to use any Beta Services, (b) Beta Services may not be supported and may be changed at any time, including in a manner that reduces functionality, (c) Beta Services may not be available or reliable, and (d) Scale provides Beta Services “as-is” and will have no liability arising out of or in connection with Beta Services.

  8. INDEMNIFICATION

    8.1 By Customer. Customer will indemnify, defend, and hold harmless Scale from and against all damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from a third-party claim regarding (a) Customer Materials, (b) Customer’s use of the Services in violation of this Agreement, or (c) Customer’s use of Output.

    8.2 By Scale. Scale will indemnify, defend, and hold harmless Customer from and against all damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from a third-party claim regarding an allegation that Scale’s technology used to provide the Services or the Output infringes or misappropriates any U.S. patent, copyright, or trade secret of such third party. In no event will Scale have obligations or liability under this Section arising from: (a) use of the Services or Output in a modified form or in combination with materials not furnished by Scale, (b) Services performed according to Customer specifications, and (c) any content, information, or data provided by Customer. For any claim covered by this Section, Scale may, at its election (i) procure the rights to use the portion of the Services or Output alleged to be infringing, (ii) replace the alleged infringing portion of the Services or Output with a non-infringing alternative, or (iii) terminate the allegedly infringing portion of the Services, or this Agreement and provide Customer with a pro rata refund of prepaid fees for the affected Services.

    8.3 General. The party seeking indemnification will promptly notify the indemnifying party of the claim and cooperate with the indemnifying party by providing reasonable assistance in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed, and (b) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ARE A PARTY’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

  9. LIMITATION OF LIABILITY

    9.1 Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR EXCLUDED CLAIMS AND EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY NOR ITS AFFILIATES, LICENSORS AND DISTRIBUTORS WILL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR (B) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, OR SERVICE INTERRUPTION, ANY DATA INACCURACY, OR THE COST OF SUBSTITUTE SERVICES (IN EACH CASE WHETHER DIRECT OR INDIRECT), REGARDLESS OF THE LEGAL THEORY AND REGARDLESS OF WHETHER A PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

    9.2 Liability Cap. TO THE FULLEST EXTENT PERMITTED BY LAW, SCALE’S AND ITS AFFILIATES’, LICENSORS’, AND DISTRIBUTORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY WILL NOT EXCEED THE AMOUNT CUSTOMER HAS PAID OR IS PAYABLE FOR CUSTOMER’S USE OF THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.

    9.3 Excluded Claims. “Excluded Claims” means (a) either party’s indemnification obligations or (b) a claim based on Customer’s breach of Section 2.5.

  10. DISPUTES

    10.1 Informal Resolution. Scale wants to address Customer’s concerns and requests that Customer bring issues that may lead to a dispute to our attention immediately. Before filing a claim, Scale and Customer agree to try to resolve the dispute by providing notice to the other party and having the appropriate executives attempt to resolve the dispute through communication and discussion. After fifteen (15) days, either party may bring a formal proceeding.

    10.2 Arbitration Terms. Scale and Customer agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as further set forth below. Any dispute will be administered by the American Arbitration Association under its Commercial Arbitration Rules by a single arbitrator. The arbitration will take place in San Francisco, California in the English language. Either party may bring a lawsuit in court for claims for injunctive relief to stop unauthorized use or abuse of the Services or claims of intellectual property infringement without first engaging in the informal resolution process described above. Scale and Customer consent to the exclusive jurisdiction and venue of the federal or state courts of San Francisco, California.

  11. GENERAL PROVISIONS

    11.1 Agreement Modification. Scale may modify this Agreement periodically. If an update will affect Customer’s use of the Services, Scale will notify Customer prior to the update’s effective date (except for changes due to legal or regulatory reasons which may be effective immediately). Otherwise, updates will be effective as of the date posted on this website. By continuing to use the Services or executing additional Order Forms after the changes become effective, Customer agrees to be bound by the modified Agreement. If Customer does not agree to the modified Agreement for the Services, Customer may terminate the Services within thirty (30) days of receiving notice of the change.

    11.2 Entire Agreement. All attachments and exhibits to the Agreement and Order Forms executed by the parties are hereby incorporated into the Agreement by reference. This Agreement constitutes the entire agreement between Customer and Scale with respect to the subject matter of this Agreement and supersedes any prior or contemporaneous agreements whether written or oral, including any non-disclosure agreements. Except as otherwise set forth in this Agreement, no modification, amendment, or waiver of any provision of this Agreement will be effective unless set forth in writing and signed by the parties. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: Order Form, the Agreement, and the Documentation.

    11.3 Governing Law. This Agreement will be governed by California law except for its conflicts of laws principles. 11.4 Notices. Notices must be sent by first class mail or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable Administrator account email address and are deemed given when sent. Notices to Scale must be sent to Scale to Scale Labs, Inc., Attn: Legal Department, 398 11th Street, San Francisco, CA 94103 with a copy to [email protected]

    11.5 Assignment. Either party may assign this Agreement in its entirety, without the other party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, and Customer must provide Scale with prompt notice following such event. Any other attempt to transfer or assign is void. This Agreement will be binding upon and inure to the benefit of the parties and their respective, permitted successors and assigns.

    11.6 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, joint venture, or agency relationship between the parties. There are no third-party beneficiaries under this Agreement.

    11.7 Construction. Any ambiguity in the Agreement will be interpreted equitably without regard to which party drafted the Agreement. “Including” and “include” will be construed to mean “including without limitation.

    11.8 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition or event (for example, natural disaster, act of war or terrorism, labor disputes, governmental action, utilities failures, third-party vendor failures, and Internet disturbance) that was beyond its reasonable control. No failure of telecommunications or network systems will be considered a service outage or service deficiency for any purpose under this Agreement.

    11.9 Subcontractors. Scale may use the services of subcontractors and permit them to exercise rights granted to Scale under this Agreement. Scale remains responsible for (a) compliance of all subcontractors with the requirements of this Agreement and (b) the performance of Services as required under this Agreement.

    11.10 Remedies. The parties agree that a breach of Section 2.5 or 6 will cause irreparable injury and that the harmed party will have the right to obtain immediate equitable relief to enjoin such activity, in addition to whatever remedies it may have at law.

    11.11 Waiver. No failure or delay by either party in exercising a right under this Agreement will constitute a waiver of that right. A waiver of a default is not a waiver of any subsequent default.

    11.12 Severability. If a court of competent jurisdiction finds any term of this Agreement to be unenforceable, the unenforceable term will be modified to reflect the parties’ intention and only to the extent necessary to make the term enforceable. The remaining provisions of the Agreement will remain in effect.

    11.13 Counterparts. This Agreement and any Order Form may be executed in counterparts, which taken together will constitute one instrument, and may be executed and delivered electronically.

    11.14 Export Compliance. The Services may be subject to export restriction laws and regulations in the U.S. and any other applicable jurisdiction and Customer is responsible for compliance regarding Customer’s and its End Users’ use of the Services. Customer will not permit End Users to use the Services from a U.S. embargoed country.

  1. DEFINITIONS

    12.1 “Acceptable Use Policy” means the acceptable use policy for the Services available at https://www.scale.ai/aup or otherwise provided by Scale.

    12.2 “Administrator” means a Customer-designated End User who administers the Services account and has access to permissions and other sensitive settings.

    12.3 “Affiliate” means any entity that controls, is controlled by, or is under common control with a party, where 12.1 “control” means the ability to direct the management and policies of an entity.

    12.4 “Beta Services” means products or features available to Customer on a trial, beta, early access, or similar basis.

    12.5 “Documentation” means any Scale-provided written documentation and policies available at https://scale.ai/docs/.

    12.6 “Effective Date” means the earlier of the date Customer first accepted this Agreement or the subscription start date set forth on Customer’s first Order Form. 12.7 “End Users” means Customer employees who are users of Customer’s Services account and identified on an Order Form or otherwise permitted access upon approval by Scale. 12.8 “Initial Term” means the term for the applicable Services starting on the subscription start date set forth on the Customer’s first Order Form and continuing for the period set forth in the Order Form. 12.9 “Restricted Information” means (a) sensitive personal information such as social security numbers, passport numbers, driver’s license numbers, and other government identification numbers, (b) Protected Health Information (as defined in the U.S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder) or similar information under comparable laws or regulations, (b) Nonpublic Personal Information (as defined in the Gramm-Leach-Bliley Act and regulations thereunder) or similar information under comparable laws or regulations, or (c) personal data as defined in the General Data Protection Regulation (EU) 2016/679. 12.10 “Services” means the Scale products and services, including the products and services ordered by Customer under an Order Form or otherwise provided by Scale and used by Customer under this Agreement, including the Scale API, websites, and other tools. 12.11 “Scale Technology” means Scale’s products and services, Output, Scale Data, Documentation, and Scale’s trademarks, logos, and other brand features. 12.12 “Services Term” means the Initial Term or any renewal terms for the Services. 12.13 “Term” means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of (a) the last Services Term has expired or (b) until the Agreement is terminated.