1. Specification; Implementation. Pursuant to each Service Order, LD will provide data management services (the “SERVICES”) for the benefit of Client using LD’s proprietary software and labor-on-demand solution (collectively, the “LD Platform”). The specifications for the Service and any software, designs, content, inventions, materials or other deliverables developed in whole or in part by LD or otherwise provided to Client, in connection with this Agreement (and associated intellectual property rights) (collectively “Deliverables”) will be set forth on the applicable Service Order. For the avoidance of doubt, “Deliverables” shall not include the LD Platform. Any exceptions must be approved by the parties in writing. In the event of conflict or inconsistency between the general provisions of this Agreement and those of an individual Service Order, the Service Order shall control. These terms and conditions apply if you do not already have a services agreement in place with LeanData.####2. Representations and Warranties. Each party hereby represents and warrants to the other party that: (a) it has the full right, power and authority to enter into his Agreement; and (b) this agreement is a valid binding obligation of such party.####3. Disclaimers; No Warranties. LD MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. LD DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICE, AND CLIENT ASSUMES ALL RISK AND RESPONSIBILTY WITH RESPECT THERETO. ####4. Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SYSTEM FAILURE OR NETWORK OUTAGE, WILL LD OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES THAT RESULT FROM THIS AGREEMENT, EVEN IF LD OR A LD AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT LD’S OR ITS AFFILIATES’ TOTAL LIABILITY TO CLIENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE NET VALUE OF SERVICES ACTUALLY DELIVERED PURSUANT TO THE SERVICE ORDER TO WHICH THE CLAIM RELATES.####5. Intellectual Property. LD shall own and retain all right, title, and interest in and to the LD Platform. Client agrees not to copy, alter, modify, or create derivative works of the LD Platform or otherwise use the LD Platform in any way that violates the use restrictions contained in this Agreement. Client shall retain all right, title and interest in and to all documents, messages, graphics, images, files, data and other information transmitted by client to LD in connection with the Service (collectively, the “Client Data”) as well as all Deliverables, provided, however, that Client hereby grants to LD a worldwide, royalty-free, non-exclusive license to use the Client Data solely for the purposes of fulfilling its obligations hereunder. Notwithstanding the foregoing, “Client Data” does not include non-identifiable aggregate data compiled by LD for market research purposes. Client agrees that LD may use Client’s name and logos in LD’s advertising, marketing, and sales materials in any non-disparaging manner, and therefore grants LD a limited license to use Clients name and logo in accordance with the foregoing.####6. Confidentiality. “Confidential Information” shall mean (a) the content of the Service Order; (b) any statistics or other user data relating to the Service which specifically identify Client; and/or (c) any information designated in writing, or orally at time of disclosure, by the disclosing party as “confidential” or “proprietary.” During the term of this Agreement, and for two (2) years following termination, neither party will, subject to the licenses granted in Section 6 above, use or disclose any Confidential Information of the other party except as specifically contemplated herein. The foregoing restriction does not apply to information that: (a) is independently developed by the receiving party without access to the other party’s Confidential Information; (b) becomes publicly known through no breach of this Section by the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure; (d) has been approved for release in writing by the disclosing party; or (e) is required to be disclosed by a legal or government authority. LD agrees that it shall maintain safeguards as necessary, in its reasonable judgement, to ensure that Client Data is not used or disclosed except as provided herein. For the avoidance of doubt, the parties agree that the provisions of this Section 7 hereby supersede any prior written or oral agreements between the parties regarding confidentiality or nondisclosure. ####7. Term; Termination. This Agreement shall become effective on the date of the Service Order and shall continue until the expiration of the last Service Order issued and accepted hereunder (The “Term”). During the Term, this Agreement may only be terminated by Client in the case of LD’s Material Breach of this Agreement. In the event of any termination, (a) Client will remain liable for any amount due under the Service Order (adjusted on a pro rata basis, if applicable) and (b) LD will wind up its work in a commercially reasonable manner and preserve and deliver to Client all paid-for Deliverables. For the purpose of this Section, “Material Breach” shall mean LD’s failure to provide the Deliverables in accordance with the specifications in any Service Order which is not cured forty-five (14) days following the delivery of written notice to LD of such a failure. This agreement or any Service Order can be terminated by LD at its convenient with up to 3 days notice. ####8. Miscellaneous. This Agreement may not be assigned by either party without the other party’s written consent, provided that an “assignment” within the meaning of this Section shall not include (a) any transfer to any entity controlling, controlled by, or under common control with a party, or (b) any sale of all or substantially all of the assets of either party pursuant to any merger, reorganization or consolidation. LD and Client are independent contractors, and neither LD nor Client is an agent, representative, employer, employee, or partner of the other. This Agreement sets forth the entire agreement between LD and Client. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. Any notices under this Agreement shall be sent to the addresses set forth in the Service Order (or in a separate writing) by facsimile, electronic mail or nationally recognized express delivery service and deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be unenforceable in any respect, then such provision will be severed and the remaining provisions of this Agreement will remain in full force and effect.
