Middesk Platform Services Agreement: Business Verification Terms and Conditions

Description of the Services. The Services may include business identity verification, lien search, lien filing, fraud detection, application prefill, customer acquisition lists, automated agents, and other services, as identified on the relevant Order Form and Schedules.

Definitions. For purposes of this Agreement, the following capitalized terms have the meanings set forth below. Capitalized terms used in any Schedule and not defined herein have the meanings given to them in the applicable Schedule.

“Affiliate” means any entity that controls, is controlled by, or is under common control with a Party, where “control” means ownership of more than fifty percent (50%) of the voting securities or equivalent voting interests.

“API(s)” means the application programming interface(s) used to provide the Services.

“Audit Report” means a summary of Middesk's most recent Service Organization Control 2 (Type I or II) report, or other industry-standard successor report, that Middesk makes available to Customer under the Customer Audit Section.

“Beta Service(s)” means services, software, or features that Middesk may make available to Customer that may not yet be generally available, including prerelease or beta versions which may not operate correctly.

“Claims” means third-party liabilities, damages, losses, judgments, costs, and expenses (including reasonable attorneys' fees), claims, actions, demands, and suits.

“Combined Data” means a dataset resulting from combining Middesk Data contained in the output of the Services with third-party data.

“Commercialization” of, to “Commercialize”, and “Commercializing” the Services means Customer accessing the Services on behalf of or for the benefit of: (a) the improvement of Customer’s own products or services; and/or (b) any End Users.

“Customer” means the party identified as such on the Order Form.

“Customer Data” means the non-public information provided directly by Customer to Middesk in connection with the Services. Customer Data does not include Middesk Data or Usage Data.

“Disclosing Party” means the Party that discloses Proprietary Information to the other Party.

“Documentation” means the user guides, API documentation, technical specifications, and similar materials that Middesk makes available to Customer through the Platform or in connection with the Services.

“Effective Date” means the date the Order Form is fully executed by both Parties.

“End User” means a customer of Customer that purchases access to the Services from Customer or is otherwise provided access to the Services.

“Evaluation(s)” means use of the Service made available to Customer at Customer's request for the purpose of internally evaluating and testing the Service and related features, including providing access to a test environment/sandbox or running a data test.

“FCRA” means the federal Fair Credit Reporting Act, including Section 603(d).

“Feedback” means any suggestions, ideas, enhancement requests, recommendations, or other feedback provided by Customer to Middesk relating to the Platform.

“Fees” means the applicable fees described in the Order Form for the Services and implementation.

“Force Majeure Event” means any cause beyond a Party’s reasonable control, including: (a) acts of God; (b) natural disasters (such as fire, storm, flood, or earthquake); (c) war or acts of terror; (d) civil disturbances; (e) government action, inaction, orders, or injunctions; (f) disruption of telecommunications, power, or other essential services; (g) interruption or termination of service by any third-party service provider; (h) failure of third-party software; (i) labor disturbances, vandalism, or cut cables; (j) computer viruses, denial-of-service attacks, or network intrusions; and (k) other malicious or unlawful acts of any third-party.

“GenAI” or “Generative AI” means systems that can create new content that reflects general characteristics of training data without necessarily duplicating the training data, such as text generation from large language models.

“Indemnitee” means the Party seeking indemnification under Section 8.

“Indemnitor” means the Party providing indemnification under Section 8.

“Initial Term” means the initial term specified in the Order Form.

“Machine Learning” or “ML” means computer programs and algorithmic models capable of learning trends and patterns from data to make predictions or recommendations.

“Middesk” means Middesk, Inc.

“Middesk Data” means business data, beneficial owner data, market data, and other data or information related to businesses that Middesk has collected, licensed, or generated. Middesk Data includes any such data delivered by Middesk to Customer in response to a Customer query. Middesk Data does not include Customer Data. Information remains Middesk Data, and does not become Customer Data, even if Customer separately submits the same or substantially similar information to Middesk.

“MSA” means this Middesk Platform Services Agreement, together with the Order Form, all Schedules identified in the Order Form or attached hereto, and any amendments to any of the foregoing executed by the Parties. References to “this Agreement” have the same meaning.

“Order Form” means the order document (whether captioned “Order Form,” “quote,” or otherwise) executed by the Parties that references the MSA and identifies the Services, the Fees, and the Term.

“Parties” means Customer and Middesk, collectively. Each individually is referred to as a “Party.”

“Person” means any individual, corporation, partnership, limited liability company, trust, unincorporated association, or other entity, and any governmental authority.

“Platform” means Middesk's platform through which Customer accesses the Services, including any online portal or related tools Middesk makes generally available to its customers.

“Probabilistic Outputs” means any reports, summaries, findings, recommendations, scores, risk indicators, classifications, labels, and other content generated in whole or in part by GenAI, ML, or other statistical or probabilistic models used in the Services.

“Proprietary Information” means business, technical, or financial information disclosed by one Party to the other under this Agreement. Proprietary Information of Middesk includes Middesk Data and non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes Customer Data and any other non-public data provided by Customer to Middesk to enable the provision of the Services.

“Receiving Party” means the Party that receives Proprietary Information from the Disclosing Party.

“Schedule(s)” means the supplemental terms documents identified in the Order Form or attached hereto that set forth additional or modified terms, conditions, and details regarding the receipt of specific Services.

“Security Breach” means any unauthorized access to, or use or disclosure of, the Disclosing Party’s Proprietary Information while in the Receiving Party’s possession or control.

“Service(s)” means the services described in the applicable Schedules attached to or incorporated into the Agreement and that Customer has subscribed to pursuant to an Order Form.

“Term” means, collectively, the Initial Term and any Renewal Term. “Renewal Term” means each renewal period specified in the Order Form.

“Usage Data” means data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies, including data derived from Customer Data in de-identified form.

1. PLATFORM SERVICES AND SUPPORT

1.1. Services. Subject to the terms of this Agreement, Middesk will provide Customer with the Services. As part of the registration process, Customer shall identify an administrative username and password for Customer’s Middesk account when required by the Services accessed (e.g., if accessing the Services through Middesk’s portal rather than API). Middesk may refuse to register, or may cancel, any username or password that Middesk reasonably deems inappropriate.

1.2. Equipment; Security. Customer is responsible for obtaining and maintaining any equipment needed to access the Services (e.g., computers, operating system, internet connection, etc.). For all uses (even if such use is without Customer’s knowledge or consent), Customer is also responsible for maintaining the security of Customer’s: (i) account; (ii) passwords; and (iii) equipment used to access the Services.

1.3. Support. Subject to the terms hereof, Middesk will use commercially reasonable efforts to provide Customer with technical support services during Middesk's standard support hours. Middesk may modify its standard support practices from time to time, provided that any such modification does not materially diminish the support practices then in effect. No specific response time, resolution time, or service availability commitment applies under this Agreement unless expressly set forth in an SLA Schedule attached to an applicable Order Form.

1.4. Updates to Services. Middesk may make routine updates, enhancements, or modifications to the Services or Platform. Middesk will not materially reduce the overall functionality of the Services during the Term without Customer’s prior written consent. Middesk may modify or replace integrations or third-party components if the change does not materially reduce the functionality of the Services.

2. LICENSE GRANT AND RESTRICTIONS

2.1. General. Customer’s access of the Services through the Platform and APIs is subject to this Agreement and any additional terms set forth in the applicable Schedule.

2.2. Use License. Subject to the provisions of this Agreement, Middesk agrees to provide Customer with access to the Service through the Platform and related APIs. Subject to Customer’s compliance with the terms and conditions of this Agreement, Middesk hereby grants to Customer a non-exclusive, non-transferable and non-sublicensable right to use the Platform solely to receive the Services, during the Term of this Agreement.

2.3. Middesk Data License. Subject to Customer’s compliance with the terms and conditions of this Agreement, Middesk hereby grants to Customer a non-exclusive, non-transferable and non-sublicensable right to access the Middesk Data through the Services. Middesk may, upon sixty (60) days' prior written notice to Customer: (i) withdraw or restrict access to Middesk Data and modify the terms of the Agreement or the Services where reasonably necessary to comply with applicable law or third-party supplier requirements or to address privacy, confidentiality, or security; or (ii) pass through to Customer documented third-party supplier cost increases or law-mandated cost changes. If a modification under clause (i) or a cost increase passed through under clause (ii) materially and adversely affects Customer’s use of the affected Services or materially increases Customer’s total cost for the affected Services, Customer may terminate the affected Services upon thirty (30) days’ written notice delivered within sixty (60) days after Middesk’s notice, and Middesk shall refund any pre-paid, unused Fees for the terminated Services on a pro-rated basis. Customer will satisfy any condition that a data source places on access to, or use of, the Middesk Data (such as a legitimate-interest requirement for beneficial-owner data), of which Middesk notifies Customer. If Customer cannot satisfy any such condition, Customer will cease accessing and using the affected Middesk Data until it can. A condition of which Middesk notifies Customer under this Section 2.3 that materially and adversely affects Customer’s use of the affected Services constitutes a modification under clause (i) of this Section 2.3.

2.3.1. Permitted Use. Customer may access and use the Platform, Services, and Middesk Data only for Customer’s own internal business purposes, and shall not sell, resell, lease, distribute, or transfer any form of license to any third-party. For clarity, Customer’s use of the Services and Middesk Data to evaluate, verify, onboard, monitor, and manage Customer’s own customers and applicants constitutes use for Customer’s internal business purposes and does not constitute Commercialization. Customer may access and use the Platform, Services, and Middesk Data only in the manner explicitly permitted in this Agreement.

2.3.2. Restrictions. Customer shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Services or any software, documentation, or data related to the Platform; (ii) use, transform, modify, or adapt the Services, Platform, or Middesk Data for any other purpose, including the development or functioning of any product or service that is competitive, in part or in whole, with any product or service of Middesk that is then generally available or in documented development, including business identity verification, business verification, and know-your-business (KYB) products and services; (iii) use the Services or Platform for timesharing or service bureau purposes or otherwise for the benefit of a third-party or End User; (iv) remove any proprietary notices or labels; (v) resell, share, Commercialize, disclose, modify, or create derivative works or Combined Data from Middesk Data; or (vi) use the Services, Platform, or Middesk Data in a manner that violates any applicable law, rule, or regulation.

2.3.3. FCRA. Customer: (a) acknowledges that the Services provided by Middesk under this Agreement do not include any consumer report information as defined in FCRA Section 603(d); and (b) shall not use, or permit its servicers, vendors, or any third-party, to use Middesk Data in any way that would cause Middesk to be viewed as a credit reporting agency under state or federal laws.

2.3.4. Modification. The scope of license grants under this Agreement may be modified or expanded by the terms of applicable Schedules, to the extent expressly stated therein.

3. INTELLECTUAL PROPERTY; DATA PRIVACY

3.1. Proprietary Rights. As between Customer and Middesk, Middesk reserves all right, title and interest in and to the Services, the Platform, and Middesk Data, including all intellectual property rights embodied therein, which shall remain the sole and exclusive property of Middesk or its licensors. Except for the limited license rights expressly granted hereunder, this Agreement does not transfer or convey to Customer or any third-party any ownership interest in or to the Services, the Platform, or Middesk Data. Customer acknowledges that the Middesk Data is an original compilation protected by United States copyright laws.

3.1.1. Feedback. Customer grants Middesk a non-exclusive, worldwide, royalty-free, sublicensable, perpetual, irrevocable license to use, modify, and incorporate Feedback into Middesk's products and services. This license survives any termination or expiration of this Agreement. Middesk shall not publicly attribute Feedback to Customer without Customer's prior written consent. Nothing in this Section transfers ownership of any intellectual property of Customer.

3.2. Customer Data.

3.2.1. As between Customer and Middesk, Customer reserves all right, title and interest in and to the Customer Data. Middesk agrees and acknowledges that the Customer Data is the exclusive property of Customer. Customer represents and warrants that it shall comply with all applicable laws, rules, and regulations, including by obtaining all necessary rights, licenses, or consents from individuals, for the transmission and processing of Customer Data by Middesk.

3.2.2. Except as otherwise expressly agreed in writing between the Parties, Middesk may only use Customer Data to provide the Services to Customer. Notwithstanding the foregoing, Middesk will have the right to collect and analyze the Usage Data for purposes of operating, maintaining, monitoring, securing, and improving the Services and developing Middesk's products and offerings. As between the Parties, Middesk shall own the Usage Data and shall be free to use such Usage Data for the improvement and enhancement of the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other Middesk offerings. Middesk may disclose the Usage Data, only in an aggregated and de-identified form that does not specifically identify Customer or any individual, in connection with Middesk’s business. Middesk will not attempt to re-identify, and will not permit any third party acting on its behalf to attempt to re-identify, any de-identified data derived from Usage Data, except to test or validate the effectiveness of de-identification. No additional rights or licenses are granted except as expressly set forth herein.

3.3. Machine Learning; GenAI. The Services incorporate ML and GenAI as core components of their operation and delivery. The restrictions in this Section on the use of Customer Data for ML training or model improvement apply to Customer Data in identifiable form. The restrictions in this Section on the use of Customer Data for GenAI training or model improvement apply to Customer Data in any form. Any processing of Customer Data by ML or GenAI beyond the scope of this Section requires Customer's express written consent, including through an applicable Schedule.

3.3.1. Machine Learning. Middesk may process Customer Data using ML in order to provide the Services. Middesk shall not use Customer Data in identifiable form to train or improve its ML models. For the avoidance of doubt, Middesk may extract, aggregate, and use anonymized or de-identified features and signals derived from Customer Data to train and improve its ML models, provided that such derived features cannot reasonably be used to re-identify Customer or any individual whose data is reflected in the Customer Data.

3.3.2. Generative AI. Middesk may use GenAI to process Customer Data for the purpose of delivering the Services to Customer. Middesk may not use Customer Data in any form to train or fine-tune GenAI models, including by using Customer Data to update the weights or parameters of any GenAI model. Middesk shall require any third-party provider of generative AI technology used to process Customer Data in connection with the Services to agree, by contract, not to use Customer Data to train or improve their models.

3.4. Middesk Audit. Customer agrees that Middesk will have the right, no more than once annually and upon at least thirty (30) days’ prior written notice, to audit Customer’s and any of its Affiliates’ compliance with the terms of the Agreement, including its access, receipt, and use of the Services, Proprietary Information of Middesk, and Middesk Data. In addition, Middesk may exercise such audit right upon less than thirty (30) days notice if Middesk has a reasonable, good-faith basis to suspect a material breach by Customer of the terms of this Agreement. Customer will reasonably cooperate in good faith with Middesk in connection with such audits and will provide Middesk or obtain for Middesk access to such records, and personnel as Middesk may reasonably require. Any such audit will be subject to Customer’s reasonable confidentiality and security protocols, and conducted in a manner that does not materially interfere with Customer’s normal business operations. All non-public information obtained by Middesk in connection with such an audit shall be Customer’s Proprietary Information.

3.5. Customer Audit. Upon Customer’s written request, Middesk will provide to Customer an Audit Report, up to once a year. Such Audit Reports will be Middesk’s Proprietary Information. Customer agrees that the Audit Reports will be used to satisfy any audit or inspection request by or on behalf of Customer in relation to applicable laws and this Agreement, including any data processing addendum that may be executed between the Parties. To the extent required by applicable law, Middesk will comply with any examination that is required by a regulatory authority with supervisory authority over Customer and Middesk will reasonably assist Customer in connection with any such regulatory authority’s audit or review of Customer connected to this Agreement.

4. CONFIDENTIALITY; SECURITY

4.1. Confidentiality. The Receiving Party acknowledges that the Disclosing Party has disclosed or may disclose Proprietary Information, and agrees to: (a) use Proprietary Information solely as necessary to perform its obligations or exercise its rights under this Agreement; and (b) not disclose Proprietary Information to any third-party except to its personnel, subcontractors, and professional advisors who are bound by confidentiality obligations no less protective than those of this Agreement. The Receiving Party remains responsible for any breach of this Section 4 by any person to which it discloses Proprietary Information.

4.2. Exceptions. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document: (a) is or becomes generally available to the public other than through any act or omission of the Receiving Party; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third-party; or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Each Party may also disclose Proprietary Information in response to a valid order of a court or other governmental body or as otherwise required by law; provided that, to the extent legally permitted, the Receiving Party gives sufficient notice to the Disclosing Party to enable the Disclosing Party to take protective measures, and in any event the Receiving Party will disclose only the Proprietary Information, or portion thereof, specifically requested. For information that constitutes a trade secret under applicable law, the confidentiality obligations in this Section shall continue for so long as such information remains a trade secret.

4.3. Security. Each Party agrees to: (a) implement reasonable physical, organizational, and technological safeguards that are appropriate to the sensitivity of the other Party’s Proprietary Information, designed to protect the confidentiality, security, and integrity of such Proprietary Information, in accordance with industry standards, or, if such information is protected by law, in accordance with applicable law; and which are in no case less stringent than those used to protect its own Proprietary Information; (b) restrict access to the Proprietary Information to only those individuals who require such access to perform their duties or services under this Agreement, and provide appropriate training to such individuals respecting handling Proprietary Information in accordance with applicable laws and this Agreement; (c) promptly advise the other Party of all inquiries, complaints, access requests, and other communications regarding Proprietary Information, and cooperate with the other Party to respond to such communications; (d) notify the other Party without undue delay, in writing, of a Security Breach, and cooperate with the other Party to remedy any Security Breach, and meet any requirements prescribed by law in respect of such Security Breach, including cooperation and agreement on any notification to affected individuals or regulatory authorities required by applicable law; and (e) promptly notify the other Party of any material adverse changes to its policies, procedures, or protocols respecting the collection, use, storage, processing, and destruction of Proprietary Information.

5. PAYMENT OF FEES

5.1. Fees. Customer will pay Middesk the Fees in accordance with the terms of the Order Form. Middesk may increase Fees at the end of the Initial Term or the then-current Renewal Term, upon at least thirty (30) days’ prior notice to Customer (for which email will suffice), provided such percentage increase does not exceed the greater of (i) five percent (5%); or (ii) the percentage change in the Consumer Price Index – All Urban Consumers (CPI-U) over the most recent twelve (12)-month period for which data has been published as of the date of such notice, rounded to the nearest one-tenth of one percent (0.1%).

5.2. Additional Services. Any new charges or fees for Services not previously subscribed to by Customer require an amendment to the Order Form. If Customer’s use of the Services requires the payment of additional fees under this Agreement, Customer will be billed for such usage and shall pay the additional fees in accordance with this Section.

5.3. Invoice and Payment. Middesk will bill through an invoice. Customer shall pay each invoice within thirty (30) days after receipt. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus reasonable attorneys' fees and collection costs Middesk incurs in collecting unpaid amounts. Customer will be responsible for all applicable federal, state, local, foreign sales or use taxes, documentary stamp tax, or other taxes assessed against Customer in connection with the Services, except with respect to Middesk’s income tax, and Customer will pay or reimburse Middesk for such taxes in accordance with the billing terms set forth herein.

5.4. Invoice Dispute. Middesk’s invoices will be deemed to be correct and acceptable to Customer unless Customer delivers a written notice of dispute in accordance with this Section. Inquiries should be directed to Middesk’s billing support department at [email protected]. Customer may dispute all or part of an invoice by sending a written statement (email sufficient) to Middesk within fourteen (14) days after Customer's receipt of the invoice describing (i) the specific amounts disputed, (ii) the basis for the dispute, and (iii) supporting documentation. While a dispute is pending, Customer may in good faith withhold the disputed amount but shall pay all undisputed amounts when otherwise due. A charge for which Customer does not deliver a timely written statement is deemed undisputed. Once a dispute is resolved, Customer shall pay any remaining amounts due (if any) within fifteen (15) days of such resolution. Customer's failure to pay undisputed charges when due is a material breach, and Middesk may suspend the affected Services upon written notice and until Customer cures.

6. TERM AND TERMINATION

6.1. Term. Subject to earlier termination as provided below, this Agreement is for the Initial Term, and will be automatically renewed for additional periods specified on the Order Form, unless either Party delivers written notice of non-renewal at least sixty (60) days prior to the end of the then-current term.

6.2. Termination Rights.

6.2.1. Termination for Breach. In addition to any other remedies, either Party may terminate this Agreement upon thirty (30) days' written notice if the other Party materially breaches any of the terms or conditions of this Agreement and fails to cure the identified breach within such 30-day period.

6.2.2. Middesk Termination Rights.

6.2.2.1. Middesk may terminate this Agreement or any Schedule upon written notice if, in Middesk’s reasonable good-faith judgment, Customer’s access to, use of, or disclosure of the Services, Middesk Proprietary Information, or Middesk Data materially breaches the license grants or restrictions of Section 2 (License Grant and Restrictions), Section 3 (Intellectual Property; Data Privacy), or Section 4 (Confidentiality; Security). Section 6.2.1 governs all other material breaches. Customer shall have five (5) business days to cure the breach before termination takes effect, except no cure period applies where the breach involves: (a) active disclosure of Middesk Data to a direct competitor of Middesk; (b) use of Middesk Data to train a competing product or service; or (c) Customer’s public misrepresentation of Middesk’s Services where the misrepresentation has been publicly disseminated and Customer fails to retract it within five (5) business days after written notice from Middesk.

6.2.2.2. Middesk may terminate this Agreement or any Schedule if Customer fails to pay any undisputed amount due under this Agreement within fifteen (15) days after Middesk’s written notice of nonpayment. Amounts withheld pursuant to a good-faith dispute under Section 5.4 (Invoice Dispute) are not a basis for termination under this Section while the dispute is pending.

6.3. Termination Economics.

6.3.1. Customer Termination for Middesk's Uncured Material Breach. If Customer terminates this Agreement following Middesk's failure to cure a material breach within the period set forth above, Customer shall pay for Services performed through the effective date of termination only, and Middesk shall refund any pre-paid, unused Fees. No additional termination fee shall apply.

6.3.2. All Other Terminations. Upon any termination other than as set forth in Section 6.3.1 above, including termination by Middesk for Customer's breach or misuse, or termination by Customer for any other reason, Customer shall pay (1) all Fees for Services through the effective date of termination, and (2) the minimum Fees due for the remainder of the then-current Term, discounted to present value at the prime rate published in The Wall Street Journal in effect as of the effective date of termination. Pre-paid Fees will not be refunded.

6.3.3. Non-Exclusive Remedies. If this Agreement is terminated due to a breach, the terminating Party will, in addition to its rights of termination, be entitled to pursue all other remedies against the breaching Party.

6.4. Effect of Termination.

6.4.1. Cessation of Use. On expiration or termination of this Agreement or any Schedule: (a) Customer's rights to access and use the Services, Platform, Middesk Data, Middesk Proprietary Information, and all other rights granted to Customer immediately terminate; and (b) Customer shall immediately cease using the Services, Middesk Data, and Middesk Proprietary Information. The foregoing does not apply to the extent an applicable Schedule expressly provides that a specific license or right survives.

6.4.2. Data Treatment. Subject to the other restrictions of this Agreement, Customer may retain a copy of the Middesk Data solely for use in connection with Customer’s internal audit requirements to meet Customer’s applicable legal or regulatory obligations.

6.4.3. Survival. All sections of this Agreement that by their nature should survive termination will survive termination, including accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. For clarity, termination or expiration of a Schedule does not affect this Agreement or any other Schedule, but termination of these Terms and Conditions terminates the entire Agreement, including all Schedules.

7. REPRESENTATIONS AND WARRANTIES; DISCLAIMER

7.1. Mutual Warranties. Each Party hereby represents and warrants that: (a) it is duly formed, validly existing, and in good standing under the laws of its state of incorporation or formation; (b) it has the right, power and authority to enter into this Agreement; (c) this Agreement has been duly and validly executed and delivered and constitutes legal, valid, and binding obligations; (d) it shall comply at all times with all applicable laws and regulations in connection with carrying out its obligations contained herein; and (e) neither the execution, delivery, nor performance of this Agreement shall conflict with, result in a violation or breach of, or require the consent of any Person under any contract or agreement.

7.2. Middesk will use commercially reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services and will perform the Services and implementation in a professional and workmanlike manner.

7.3. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTIONS 7.1 AND 7.2, MIDDESK PROVIDES THE SERVICES, MIDDESK DATA, PROBABILISTIC OUTPUTS, AND ALL RELATED MATERIALS “AS IS,” AND DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, CURRENTNESS, CORRECTNESS, RELIABILITY, TIMELINESS, AND UNINTERRUPTED OR ERROR-FREE OPERATION. MIDDESK DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER'S OR ANY END USER'S REQUIREMENTS.

7.4. CUSTOMER ACKNOWLEDGES THAT PROBABILISTIC OUTPUTS ARE INHERENTLY PROBABILISTIC, MAY PRODUCE FALSE POSITIVES AND FALSE NEGATIVES, AND ARE NOT GUARANTEED TO BE ACCURATE, COMPLETE, CURRENT, OR CORRECT. MIDDESK DOES NOT WARRANT THE CORRECTNESS OF ANY PROBABILISTIC OUTPUT, AND CUSTOMER IS RESPONSIBLE FOR INDEPENDENTLY REVIEWING AND DECIDING WHETHER TO RELY ON ANY PROBABILISTIC OUTPUT. NOTHING IN THIS SECTION LIMITS MIDDESK'S OBLIGATION TO PERFORM THE SERVICES IN A PROFESSIONAL AND WORKMANLIKE MANNER UNDER SECTION 7.2.

7.5. WITHOUT LIMITING THE GENERALITY OF SECTION 7.3 OF THIS AGREEMENT, CUSTOMER ACKNOWLEDGES AND AGREES THAT BECAUSE THE SERVICE INVOLVES CONVEYING INFORMATION PROVIDED TO OR COLLECTED BY MIDDESK FROM OTHER SOURCES, MIDDESK CANNOT AND WILL NOT, FOR THE FEES CHARGED FOR THE SERVICE, BE AN INSURER OR GUARANTOR OF THE ACCURACY OR RELIABILITY OF THE SERVICE, THE MIDDESK DATA, OR ANY PROBABILISTIC OUTPUT.

8. INDEMNITY

8.1. Middesk Indemnification.

8.1.1. IP Indemnification. Middesk will defend, indemnify, and hold harmless Customer and its directors, officers, and employees from and against any Claims arising out of or relating to liability to third parties resulting from an allegation of infringement by the Service of any patent, copyright, or misappropriation of any trade secret. The foregoing obligations do not apply with respect to portions or components of the Service to the extent (i) not supplied by Middesk; (ii) made in accordance with Customer specifications; (iii) modified by Customer, or any third-party after delivery by Middesk; (iv) commercialized by Customer or combined with other products, processes, or materials where the alleged infringement relates to such combination; (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (vi) where Customer’s use of the Service is in material breach of this Agreement and such breach is the proximate cause of the alleged infringement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be, or are believed by Middesk to be, infringing, Middesk may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality; (b) obtain for Customer a license to continue using the Service; or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and refund any pre-paid, unused Fees on a pro-rated basis.

8.1.2. Other Indemnification. Middesk will also defend, indemnify, and hold harmless Customer and its directors, officers, and employees from and against any Claims to the extent arising out of liability to third parties resulting from Middesk’s gross negligence, fraud, or intentional misconduct.

8.1.3. THIS SECTION 8.1 SETS FORTH MIDDESK’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY THIRD-PARTY CLAIMS FOR WHICH MIDDESK HAS INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION 8.1, AND PREVAILS OVER ANY CONTRARY PROVISION IN THE AGREEMENT.

8.2. Customer Indemnification. Customer will defend, indemnify, and hold harmless Middesk and its directors, officers and employees from and against any Claims arising out of or relating to liability to third parties resulting from Customer’s (i) use of the Platform or Services other than as expressly authorized under this Agreement; (ii) breach of its obligation to obtain the rights or licenses necessary, including consents from individuals, to authorize Middesk’s processing of Customer Data; (iii) breach of Section 2, Section 3, or Section 4 of this Agreement; and (iv) gross negligence, fraud, or intentional misconduct.

8.3. Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Claim for which such party believes it is entitled to be indemnified pursuant to this Section. The Indemnitee shall cooperate with the Indemnitor at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Claim without the Indemnitee's prior written consent, which shall not be unreasonably withheld, conditioned, or delayed; provided that no consent is required for a settlement that (i) involves only the payment of money by the Indemnitor, (ii) includes no admission of fault or liability by or on behalf of the Indemnitee, (iii) imposes no injunctive or other non-monetary obligation on the Indemnitee, and (iv) includes a full and unconditional release of the Indemnitee with respect to the Claim. If the Indemnitor fails or refuses to assume control of the defense of such Claim, the Indemnitee shall have the right, but no obligation, to defend against such Claim, including settling such Claim after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any obligations under this Section will not relieve the Indemnitor of its obligations under this Section, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.

9. LIMITATION OF LIABILITY

9.1. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, RELIANCE, INCIDENTAL, CONSEQUENTIAL, OR SIMILAR DAMAGES (INCLUDING LOSS OF REVENUE OR PROFITS), DAMAGES TO BUSINESS REPUTATION, DAMAGES ARISING FROM LOSS OF BUSINESS WITH THIRD PARTIES, OR LOSS OF PROFITS FROM TRANSACTIONS WITH THIRD PARTIES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY INFORMATION OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY OR ERROR IN THE CONTENT, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING WAIVER DOES NOT APPLY TO DAMAGES ARISING FROM A PARTY'S WILLFUL AND INTENTIONAL INFRINGEMENT OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS.

9.2. EXCEPT FOR (A) MIDDESK’S INDEMNIFICATION OBLIGATIONS AND (B) MIDDESK’S BREACH OF ITS CONFIDENTIALITY OR DATA SECURITY OBLIGATIONS UNDER SECTION 4, MIDDESK’S TOTAL AGGREGATE LIABILITY UNDER THE AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY, IS LIMITED TO DIRECT DAMAGES, WHICH WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO MIDDESK UNDER THE AGREEMENT FOR THE PARTICULAR SERVICES THAT ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE-MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM WAS MADE.

9.3. NOTWITHSTANDING THE FOREGOING: (A) MIDDESK’S TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR MIDDESK’S BREACH OF ITS CONFIDENTIALITY OR DATA SECURITY OBLIGATIONS UNDER SECTION 4 WILL NOT EXCEED TWO (2) TIMES THE AMOUNT PAID BY CUSTOMER TO MIDDESK UNDER THE AGREEMENT FOR THE PARTICULAR SERVICES THAT ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE-MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM WAS MADE; AND, (B) MIDDESK’S TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR MIDDESK’S IP INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.1.1 WILL NOT EXCEED FIVE (5) TIMES THE AMOUNT PAID BY CUSTOMER TO MIDDESK UNDER THE AGREEMENT FOR THE PARTICULAR SERVICES THAT ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE-MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM WAS MADE.

9.4. FOR THE AVOIDANCE OF DOUBT, MIDDESK’S GROSS NEGLIGENCE, FRAUD, AND INTENTIONAL MISCONDUCT INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.1.2 ARE NOT SUBJECT TO ANY AGGREGATE CAP SET FORTH IN THIS SECTION 9.

9.5. CUSTOMER ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY SECTION APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REPRESENTS A FAIR ALLOCATION OF THE RISK BASED ON THE FEES MIDDESK CHARGES FOR THE SERVICES, AND APPLIES EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

10. PROOF OF CONCEPT, DATA TESTS, EVALUATIONS, & BETA SERVICES

10.1. Evaluations. At Customer’s request, Middesk may make Evaluations available to Customer. In addition to the other restrictions under this Agreement, Customer may access and use Evaluations solely for the purpose of internally evaluating and testing the Service and related features for the time period set forth in the Order Form. The Evaluation will terminate at the expiration of the time period set forth in the Order Form. For free Evaluations (i.e., Evaluations not paid for by Customer under an Order Form): (a) Middesk may terminate Customer's access at any time; and (b) Evaluations are provided “as is” without support, indemnification, or warranty of any kind, whether express, implied, statutory, or otherwise. Middesk's liability for any Evaluation is governed by Section 10.3.

10.2. Beta Services. At Customer’s request, Middesk may make Beta Services available to Customer. Beta Services may include partial features or functionality of the Service. In addition to the other restrictions under this Agreement, Customer acknowledges and accepts that, except for Customer-paid Beta Services, Beta Services are provided “as is” without support, indemnification, or warranty of any kind, whether express, implied, statutory, or otherwise. Middesk may terminate Customer’s access to and use of any Beta Service at any time. Middesk's liability in connection with Beta Services is governed by Section 10.3.

10.3. Cap on Evaluations and Beta Services. Notwithstanding any other provision of this Agreement, Middesk's total liability for each Evaluation or Beta Service is capped at the greater of (i) $10,000 USD or (ii) the Fees actually paid by Customer for that specific Evaluation or Beta Service. The cap in this Section 10.3 applies separately to each Evaluation and each Beta Service; caps do not aggregate but also do not reset across claims, events, or theories of recovery for the same Evaluation or Beta Service. “Fees actually paid by Customer” means only the Fees specifically allocated in the Order Form to that Evaluation or Beta Service, and excludes Fees paid for any production Services, implementation, or other Services under this Agreement. The provisions of this Section 10.3 represent the parties' fair allocation of risk for the limited-purpose, pre-release, or reduced-cost nature of the Evaluations and Beta Services and apply even if any exclusive or limited remedy stated in this Agreement fails of its essential purpose.

11. MISCELLANEOUS

11.1. Order of Precedence. In the event of any conflict between or among the documents comprising this Agreement, the following order of precedence shall govern (with documents listed earlier taking precedence): (1) the Order Form, as to deal-specific commercial and publicity terms; provided that the Order Form shall not modify the substantive risk-allocation, indemnification, limitation of liability, confidentiality, data privacy, or intellectual property provisions of this Agreement or any Schedule except through express identification of the specific Section being modified; (2) the applicable Schedule, as to the subject matter addressed therein; and (3) these Terms and Conditions. In the event of a conflict between two or more applicable Schedules, the Schedule more specific to the subject matter of the conflict shall control. Where specificity cannot be determined, the Schedule with the later effective date shall control, unless the parties otherwise agree in writing.

11.2. Amendments or Modifications. This Agreement may be amended or modified only by a written agreement signed by both Parties. Any such amendment may be executed in counterparts and by electronic signature.

11.3. Severability. 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, effect, and enforceability.

11.4. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (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, upon written notice to the other Party, to its Affiliate or 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 purported assignment in violation of this Section 11.4 is void. This Agreement binds and benefits the Parties and their respective successors and permitted assigns.

11.5. No Waiver. The failure or delay of either Party to enforce any provision of this Agreement, or to exercise any right or remedy under this Agreement, shall not constitute a waiver of such provision, right, or remedy. No waiver of any breach of this Agreement shall constitute a waiver of any subsequent breach. No waiver shall be effective unless in writing and signed by the waiving Party.

11.6. Publicity. Unless otherwise specified on the relevant Order Form(s): (a) Middesk may use Customer’s name and logo solely to identify Customer as a customer on Middesk’s website and in standard customer lists and marketing collateral, subject to Customer’s reasonable trademark usage guidelines provided in writing; and (b) Middesk and Customer may publish a mutually agreed-upon case study during the Term.

11.7. Entire Agreement. This Agreement, together with the Order Form(s), and applicable Schedules attached hereto, 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. The Parties agree that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein.

11.8. Relationship Between the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind Middesk in any respect whatsoever.

11.9. Notices. All notices under this Agreement will be in writing sent to the addresses listed on the Order Form attached hereto and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Each Party shall notify the other in writing in the event of a change of address.

11.10. Force Majeure. Except for payments due under this Agreement, neither Party will be responsible for any failure to perform or delay in performance to the extent attributable to a Force Majeure Event; provided that, with respect to computer viruses, denial-of-service attacks, and network intrusions, the affected Party has used industry-standard security measures designed to prevent them. If a Force Majeure Event prevents Middesk from providing affected Services for five (5) or more consecutive business days, any minimum or committed Fees attributable to the affected Services will abate pro rata for the duration of the nonperformance. If a Force Majeure Event prevents a Party’s performance for thirty (30) or more consecutive days, the other Party may terminate the affected Services upon written notice, and Middesk shall refund any pre-paid, unused Fees for the terminated Services on a pro-rated basis.

11.11. Arbitration.

11.11.1. Forum and Administrator. Any dispute not resolved by the Parties by mutual consultation will be determined by arbitration in San Francisco, California before a single arbitrator. The arbitration will be administered by JAMS. If JAMS is no longer in business or refuses or declines to administer any dispute between the Parties brought before it, either Party may petition the United States District Court for the Northern District of California to appoint the arbitrator.

11.11.2. Rules. For claims greater than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For claims less than or equal to $250,000, the JAMS Streamlined Arbitration Rules in effect at the time the arbitration is commenced will apply. To the extent permitted by applicable law, all arbitration proceedings will be subject to Section 4 (Confidentiality; Security) of this Agreement.

11.11.3. Substantive Law. The arbitrator will apply the substantive law of the State of California, exclusive of its conflict or choice of law rules.

11.11.4. Provisional Remedies. Nothing in this Section will preclude the Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

11.11.5. Class Action Waiver. THE PARTIES AGREE THAT ALL DISPUTES WILL BE BROUGHT IN THEIR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS AND MAY NOT PRESIDE OVER ANY FORM OF REPRESENTATIVE OR CLASS PROCEEDING.

11.11.6. FAA. The Parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provisions in this paragraph referencing applicable substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) will govern any arbitration conducted pursuant to the terms of this Agreement.

11.11.7. Commencement. Either Party may commence arbitration by providing to JAMS and the other Party to the dispute a written demand for arbitration, setting forth the subject of the dispute and the relief requested.

11.11.8. Continued Performance. The existence of a dispute and the observance by the Parties of the dispute resolution procedures in this section will not: (a) excuse any Party from continuing to perform its obligations under this Agreement; or (b) suspend any obligation to pay any amount otherwise due and payable under this Agreement unless that obligation or the amount (to the extent in dispute) is itself the subject of the dispute.

11.11.9. Injunctive Relief. Nothing in this Agreement affects the right of a Party to institute proceedings to seek urgent injunctive or declaratory relief in respect of a dispute or any matter arising under this Agreement.

11.11.10. Fees. If any dispute leads to an arbitration or other legal proceeding to resolve such dispute, the prevailing Party in such proceeding will be entitled to receive its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.

11.12. Export Controls. Each Party agrees to comply with all export restrictions under applicable law in connection with the Services.

11.13. Sanctions; Anti-Corruption. Each Party represents and warrants that: (a) neither it nor, to its knowledge, any of its directors, officers, or employees performing under this Agreement is the target of, or located in a jurisdiction subject to, comprehensive sanctions administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC), the U.S. Department of State, the United Nations Security Council, the European Union, or His Majesty’s Treasury; and (b) it will comply with all applicable anti-corruption and anti-bribery laws, including the U.S. Foreign Corrupt Practices Act and (where applicable) the U.K. Bribery Act 2010, in connection with its performance under this Agreement.

11.14. Governing Law. The Agreement is governed by and construed in accordance with the laws of the state of California, without giving effect to its conflict of laws provisions.

Click here to view past versions of this document.