SAAS SERVICES AGREEMENT

This SaaS Services Agreement, together with any separately executed Order Form, (the “Agreement”) is a contract between Mensch Labs, Inc., a Delaware corporation, (“Company”), and you (if you are acting in your individual capacity) and/or the company or entity you represent (if you are acting on behalf of a company or other entity) (“Customer”). The Agreement contains the terms and conditions that govern Customer’s access to and use of the web-hosted services and implementation or other services delivered to Customer by Company (“Services”). The Agreement takes effect on the effective date set forth on the Order Form executed between the parties, or, if no Order Form has been executed by the parties, at such time Customer begins using the Services (“Effective Date”). The parties agree as follows:

1. SAAS SERVICES AND SUPPORT

1.1            Subject to the terms of the Agreement, Company will use commercially reasonable efforts to provide Customer (a) the Services in accordance with the Service Level Terms attached hereto as Exhibit A and (b) any mutually agreed upon implementation services in connection with the setup of the Services for Customer (“Implementation Services”).  Customer will provide reasonable cooperation and support in connection with Company’s performance of the Implementation Services.

1.2           If you are accessing the Services on behalf of another person or entity: (a) you represent and warrant that you have the authority to bind that person or entity to this Agreement; and (b) you agree to comply with the terms of this Agreement, and that all references to “Customer” shall jointly refer to you and that person or entity.

1.3          As part of the registration process, Customer will identify an administrative user name and password for Customer’s account.  Customer will provide accurate information in connection with its account registration and maintain the accuracy of this information during the Term (defined below).   

1.4          Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the Company’s standard practices, 9am – 5pm PDT, Monday through Friday, excluding holidays, except that Company will provide such support services outside business hours for urgent critical matters that severely impact the Services.  Customer must request technical support services via email to support@rep.ai.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1            Customer will not, directly or indirectly: (a) 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 Services (“Software”); (b) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); (c) host, sell, resell, or rent the Services, including use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) remove any proprietary notices or labels from the Software or Services; (e) bypass or circumvent any technical restrictions contained within the Services; (f) use third-party applications that interact with the Services other than as expressly authorized by Company or via the Services; (g) introduce viruses, corrupted data or other harmful, disruptive or destructive files or content to the Services; (h) attempt to access or modify any data or account of another customer of Company; or (i) use the Services with the intent to, or in a manner that is likely to, damage, disable, overburden or impair the functioning of the Services.  With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.

2.2            Customer will not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of the Agreement and will be prohibited except to the extent expressly permitted by the terms of the Agreement.

2.3            Customer will use the Services in compliance with all applicable laws and regulations, including those that relate to privacy, data protection and electronic communications. Without limiting the foregoing, Customer is solely responsible for providing and obtaining, and will provide and obtain, all necessary notices and consents required under applicable law for Company to send communications to individuals on Customer’s behalf via the Services and for Company to process and store personal data about such individuals via the Services. Customer shall not process or submit to the Services any Customer Data (defined below) that includes any; (a) “personal information” of a “child”, as such terms are defined under the Children’s Online Privacy Protection Act, (b) protected health information subject to protections under the Health Insurance Portability and Accountability Act or analogous state laws; (c) government issued identification numbers, including Social Security numbers, driver’s license numbers and other state-issued identification numbers; or (d) financial account information or payment card data, including bank account information, or credit card or debit card numbers, Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in breach of Section 2 of the Agreement.

2.4            Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Customer shall also be responsible for maintaining the security of the Equipment, Customer’s account login credentials (including but not limited to administrative and user credentials) and files, and for all uses of Customer’s account or the Equipment with or without Customer’s knowledge or consent, including any access or use of the Services by its authorized users (“Authorized Users”), except to the extent any unauthorized use of Customer’s account is caused by Company. Company will ensure that all Authorized Users comply with its obligations under the Agreement. For the Agreement, the acts or omissions of any Authorized Users are considered acts or omissions of Customer.

2.5            Customer represents and warrants that: (a) it has the right and authority to access and use the Services to interact with or perform any services for its customers; (b) its access or use of the Services will not violate any agreement or obligation between it and a third party or cause Company to be in violation of any agreement between Company and a third party; (c) its access or use of the Services will not violate any applicable law or cause Company to be in violation of any applicable law; and (d) the Customer Data (defined below) does not now and will not in the future infringe, misappropriate or violate any intellectual property rights of a third party.

3. CONFIDENTIALITY

3.1            Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose non-public business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services, including any documentation made available by Company.  Proprietary Information of Customer includes non-public data and content provided by Customer to Company (“Customer Data”), including the names, email addresses, phone numbers and other personal information of Customer’s customers, Authorized Users, agents, employees, vendors and suppliers that Customer or its Authorized Users provide to the Services (“Customer PII”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use or disclose to any third person any such Proprietary Information (except in performance of the Services or as otherwise permitted herein).  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public without the fault of the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (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. 

3.2            Company shall implement commercially reasonable security measures designed to protect Customer PII from unauthorized access, use or disclosure or loss, theft or damage, including, but not limited to, by: (a) taking reasonable precautions with respect to the employment of and access given to Company personnel; and (b) implementing reasonable technical safeguards.

3.3            The Receiving Party may disclose Proprietary Information of the other Disclosing Party: (a) to its employees, contractors and professional advisors who have signed a non-disclosure agreement with provisions that are no less restrictive than those set forth in this Section 3 or who are subject to equivalent professional responsibilities; or (b) to the extent required by applicable law or court order.

3.4            Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the Term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.  

4. INTELLECTUAL PROPERTY

4.1            Customer grants Company a non-exclusive right tomodify, distribute, reproduce and publicly display Customer Data to provide the Services or as otherwise agreed to by the parties. 

4.2            Except for the license granted under Section 4.1, Customer shall own all right, title and interest in and to the Customer Data.

4.3            Subject to the terms of this Agreement, during the Term, Company grants Customer under Company’s intellectual property rights, a non-exclusive, non-transferable and non-sublicensable license to install, access and use the Software solely as intended for the purpose of facilitating Customer’s use of the Services.

4.4            Except for the limited license granted under Section 4.3, Company shall own and retain all right, title and interest in and to (a) the Services and Software, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.    

5. TERM AND TERMINATION

5.1            The Initial Services Period specified in any Order Form shall automatically renew upon expiration for additional periods thereafter of the same duration as such Initial Services Period (each, a Renewal Period, and together with the Initial Services Period, the “Services Period”), unless either party requests termination in writing at least thirty (30) days prior to the end of the then-current Services Period.  Subject to earlier termination as provided below, the term of the Agreement commences on the Effective Date specified on the initial Order Form and continues until the Service Periods of all Order Forms, including any Renewal Periods, expire (“Term”). 

5.2            In addition to any other remedies it may have, either party may also terminate the Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of the Agreement and fails to cure such breach within such 30-day period.  Upon termination or expiration of the Term: (a) Customer will immediately pay in full to Company any unpaid Fees payable by Customer under this Agreement; and (b), Company will use commercially reasonable efforts to make all Customer Data available to Customer, other than Customer Data originating from Customer’s systems, for electronic retrieval for at least thirty (30) days, but thereafter Company may, at its discretion, delete stored Customer Data. All sections of the Agreement which by their nature should survive termination will survive termination, including, without limitation, Sections 3, 4.2, 4.4, 5.2, and 7-10.

6. PAYMENT OF FEES

6.1            Customer will pay Company all applicable fees specified in this Agreement, including as specified in any Order Form, (collectively, the “Fees”).  Prior to the expiration of the then-current Term, Company reserves the right to change the amount of the Fees, and to institute new Fees, payable by Customer during the subsequent Renewal Term with at least thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to be eligible to receive any adjustment or credit.  Inquiries should be directed to Company’s customer support department.

6.2            Except as otherwise specified in an Order Form, Company will invoice Customer for all Fees, and Company will pay any such invoice within thirty (30) days after the mailing date of the invoice.  Unpaid Fees 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 all expenses of collection and may result in immediate suspension of the Services until full payment is received. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.  

7. WARRANTY AND DISCLAIMER

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.  Company does not make any warranty as to the results that may be obtained from use of the Services or that any notice language or functionality made available via the Services may be relied upon to comply with applicable laws (including the Telephone Consumer Protection Act). Except as expressly set forth in this section, the Services, including any Implementation Services, are provided “as is” and Company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.

8. INDEMNITY

8.1        Company shall defend, indemnify and hold Customer harmless from liability to third parties to the extent resulting from a third-party claim arising from: (a) infringement by the Services of any United States patent or copyright or misappropriation of any trade secret or (b) Company’s breach of Section 3.2.  The foregoing obligations under subsection (a) of this paragraph do not apply to the extent arising from Customer’s breach of the terms of the Agreement or with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, or (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement. 

8.2        If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Services 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 Services, or (c) if neither of the foregoing is commercially practicable, terminate the Agreement and Customer’s rights hereunder and provide Customer a pro-rata refund of any prepaid, unused Service Fees.

8.3        Customer will defend, indemnify and hold harmless Company against any damages, losses, liabilities, settlement amounts and expenses (including without limitation costs and attorneys’ fees) arising from any third-party claim or action related to (a) an actual or alleged breach of Section 2 or other unauthorized use of the Services by Customer (including its Authorized Users); or (b) any alleged or actual infringement, violation, or misappropriation of any intellectual property rights by Customer (including its Authorized Users) related to any Customer Data: (c) violation or non-compliance with applicable law related to Customer’s access or use of the Services.

8.4        In the event of any claim subject to indemnification under Section 8.1 or Section 8.3:  (a) the indemnified party will promptly provide written notice to the indemnifying party of any such claim; (b) the indemnifying party will not settle or compromise such claim, except with prior written consent of the indemnified party (which consent will not be unreasonably withheld, conditioned or delayed); and (c) the indemnified party will give, at the indemnifying party’s expense, such assistance and information as the indemnifying party may reasonably require to settle or oppose such claims. The indemnified party may participate, a its own expense, in such defense and in any settlement discussions directly or through counsel of its choice on a non-controlling basis. The indemnified party’s failure to provide timely notice pursuant to clause (a) of this Section does not limit or discharge the indemnifying party’s obligations pursuant to this Section 8 except to the extent that the indemnified party’s failure to give such timely notice prevents the indemnifying party from defending an indemnified claim. 

9. LIMITATION OF LIABILITY

Notwithstanding anything to the contrary, except for bodily injury of a person, neither party nor its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall be responsible or liable with respect to any subject matter of the Agreement under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; or (b) for any indirect, exemplary, incidental, special or consequential damages, whether or not Company has been advised of the possibility of such damages. Except for Fees that are payable by Customer under this Agreement, the total liability of either party under this Agreement, whether based in contract, tort (including negligence or strict liability), or otherwise, will not exceed the amount of Fees paid or payable by Customer to Company for the Services under the Agreement in the 12 months prior to the date that a claim or demand is first asserted.

10. Publicity

Unless otherwise specified in an Order Form executed between the parties, Company may use Customer’s name, logo and marks to identify Customer as a customer of the Company on Company's website, on social media, and other marketing and advertising materials.

11. MISCELLANEOUS

If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable.  Neither party may assign this Agreement without the prior written consent of the other party, not to be unreasonably withheld, except that either party may assign this Agreement without the other party's consent to any purchaser of all or substantially all of such party's assets or to any successor by way of merger, consolidation or similar transaction.  Subject to the foregoing, this Agreement will be binding upon, enforceable by and inure to the benefit of the parties and their respective successors and assigns.  Any attempted assignment in violation of this Section will be void.   The 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 the Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of the Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.  In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, severe weather, power loss, denial of service attacks outages of third party connections or utilities, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control,  All notices under the Agreement will be in writing 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.  In the event of any conflict between an Order Form and the SaaS Services Agreement, the SaaS Services Agreement will control unless the Order Form expressly identifies a section of this SaaS Services Agreement that it intends to override.  The Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. With respect to all disputes arising out of or related to the Agreement, the parties consent to exclusive jurisdiction and venue in the courts located in the Northern District of California.

EXHIBIT A: Service Level Terms

1.              Service Availability. The Services shall be available 99.9%, measured monthly, excluding maintenance described under Section 3 of this Exhibit A (“Maintenance”). Availability will be calculated as the total number of minutes in a calendar month minus the number of minutes in such calendar month that the Services are suffering from a service outage as confirmed by Company, other than as a result of Maintenance or Force Majeure, divided by the total number of minutes in such calendar month (and multiplied by 100 to be expressed as a percentage).  Company’s blocking of data communications or other Services in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under the Agreement.

2.              Remedy. Customer's sole and exclusive remedy, and Company's entire liability, in connection with Services availability shall be that for each period of downtime lasting longer than one (1) hour, Company will credit Customer prepaid Service Fees prorated for every minute of downtime, rounded up to nearest 30 minute interval, excluding Scheduled Maintenance. Downtime shall begin to accrue from the time the Customer notifies the Company in writing at support@rep.ai that downtime is taking place, and continues until the availability of the Services is restored. Customer must notify Company in writing of the request for a credit no later than sixty (60) days after the month in which the availability requirement was not met.  The total credits for a given month will, in no event, exceed an amount equal to fifty percent (50%) of the then-current pro-rata monthly Service Fees.  If the Term expires or is terminated and Customer is still owed credits under this Exhibit A, Company will pay such credits to Customer.

3.              Maintenance.  Services may be temporarily unavailable for scheduled maintenance, maintenance requested by Customer, or for unscheduled emergency maintenance, either by Company or by third-party providers, but Company shall use reasonable efforts to provide advance notice in writing of any scheduled service disruption.