Master Service Agreement

Last Modified:

November 18, 2024

This Master Services Agreement governs our customer’s use of SturdyAI, Inc’s, (“Sturdy”)’s service.

If a customer registers for a free trial of our service this agreement will also govern their use of the services.

By accepting this Agreement, either by (1) logging in or accessing the service or by permitting any Agent or End-User to access the service, (2) executing an order form or, (3) by clicking a box indicating acceptance, customer agrees to be bound by this Agreement as of the date of such access or use of the Service (the “Effective Date”).

If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Sturdy that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Customer,” “You,” or “Your” herein refers to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not use any use of the Services. Customer and Sturdy shall each be referred to as a “Party” and collectively referred to as the “Parties” for purposes of this Agreement.

Sturdy’s direct competitors are prohibited from accessing the Services without prior written consent.

This agreement was last updated on June 27, 2023. It is effective between Customer and Sturdy as of the date that Customer accepts this agreement.

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The parties agree as follows:

Agreement and Term. The products and online services (collectively, “Services”) that Sturdy will provide to Customer pursuant to this MSA will be described in order form(s) and/or statements of work signed by both parties (“Order Forms”). The parties will also separately enter into a Data Processing Agreement (or similar agreement regarding the processing of personal information) referencing this MSA (a “DPA”), which is incorporated in this MSA. “Agreement” means this MSA together with all Order Forms and the DPA.
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Use of Services. During the Term and subject to the terms of this Agreement, Sturdy grants Customer a non-exclusive, non-transferable right to access and use the Services set forth in an Order Form
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‍Sturdy Responsibilities. Sturdy represents and warrants to customer as follows:
1. Sturdy will provide the Services in accord with this Agreement and the laws and regulations applicable to Sturdy’s provision of its Services to its customers generally. Sturdy will provide standard support for the Services to Customer at no additional charge, unless otherwise specified in an Order Form. Sturdy is responsible for its personnel’s and agents’ compliance with Sturdy’s obligations under this Agreement.
2. Sturdy will use commercially reasonable efforts to make its online Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Sturdy will inform Customer in advance), and (b) unavailability caused by circumstances beyond Sturdy’s reasonable control.
3. Sturdy will maintain appropriate administrative, physical and technical safeguards for the protection of Customer Data (defined below), including measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer’s personnel). Thirty days after termination or expiration of this MSA, Sturdy will have no obligation to maintain any Customer Data.
  
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Customer Responsibilities. Customer represents and warrants to Sturdy as follows:
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1. In its use of the Services, Customer will comply with this Agreement (including any usage limits specified in Order Forms) and all applicable laws and regulations. Customer will comply with the terms and conditions of any Third-Party Application (as defined below) with which Customer uses the Services. Customer will not allow credentials to access the Services issued by Sturdy to a Company employee or contractor to be shared with any other individual or, unless the prior user will no longer access the Services, reassigned to a new individual. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of Services and notify Sturdy promptly of any such unauthorized access or use. Customer is responsible for its personnel’s and agents’ compliance with Customer’s obligations under this Agreement.
2. Customer will not (a) make any part of the Services available to, or use the Services for the benefit of, any third party; (b) sell, resell, license, sublicense, distribute, make available, rent or lease the Services; (c) modify, copy or create derivative works of the Services (or any part thereof); (d) disassemble, reverse-engineer or decompile the Services; (e) access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes; (f) use the Services or any Third-Party Application to store or transmit materials that are unlawful, misleading, libelous, obscene, hateful or violative of others’ privacy rights; or (g) introduce viruses or other malware to a Third-Party Application or the Services, Sturdy’s systems or end users. Customer will not use the Services or any Third-Party Application in a manner that violates its agreement with any third party or could reasonably be expected to damage the Services or Third-Party Application or reflect unfavorably on the reputation of Sturdy or its partners. Customer will not export, re-export, or transfer the Services, in whole or in part, to any country, person, or entity subject to U.S. export restrictions.
  
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Privacy
1. Each party will take all steps reasonably necessary to enable the other party to comply (or demonstrate its compliance) with applicable privacy laws and regulations (including providing needed documentation).
2. Each party will conspicuously post and comply with a legally sufficient privacy notice on its properties where data is collected and used in association with the Services. The privacy notice must accurately describe the party’s practices relating to data collection, sharing, and use.
3. Customer is responsible for the accuracy, quality and legality of Customer Data (as defined below), the means by which Customer Data is acquired, and Customer’s use of Customer Data with the Services or any Third-Party Application. Customer will ensure that all necessary rights and permissions are established for the transfer and/or use of Customer Data in connection with the Services or the applicable Third-Party Application, and that such use of the data is in compliance with all applicable laws and regulations.
4. Sturdy shall maintain appropriate administrative, technical, and physical safeguards to protect Confidential Information and Customer Data, including personally identifiable information of data subjects as required by applicable data protection laws. To the extent that Sturdy collects personal data governed by applicable data protection laws requiring execution of a data processing agreement, Sturdy and Customer shall incorporate, as applicable, the Data Processing Agreement linked here: www.sturdy.ai/legal/DPA, including the applicable Appropriate Safeguards linked here: www.sturdy.ai/legal/safeguards, into this Agreement as if fully rewritten herein
  
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Usage Limits
1. Services are subject to storage and usage limits as defined by the Order Form or Documentation. If Customer exceeds these limits Sturdy may work with Customer to reduce the usage or storage so that if complies with those requirements. If Customer is unable or unwilling to abide by contractual usage or storage limits, Customer will execute an Order Form for additional storage or usage.
  
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Free Trial
1. If Customer is uses the Services during a Free Trial Sturdy will make the Service available to Customer on a trial basis free of charge until the earlier of (1) the end of the free trial period, (2) termination of the Service by Sturdy at its sole discretion.
  
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Data and Proprietary Rights.
1. Except as set forth in this Agreement, as between Sturdy and Customer, Customer owns all right, title and interest (including all intellectual property rights) in all data input into the Services by or on behalf of Customer, including data collected by Sturdy on Customer’s behalf from Customer’s Third-Party Application instances (collectively, “Customer Data”). Sturdy may only use Customer Data to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement, and to build or improve the Sturdy’s services and offerings to the extent permitted under applicable data protection laws.
2. Except as set forth in this Agreement, as between Sturdy and Customer, Sturdy owns all right, title and interest (including all intellectual property rights) in the Services, including the data within the Services except for Customer Data (collectively, “Sturdy Data”), including system performance metrics, Sturdy sourced identifiers, labels assigned within the Services and the Services’ machine learning, and any future developments, derivatives and enhancements to the Services. For clarity, Sturdy Data includes any data or information generated by Sturdy’s technology or assigned manually using the Services that is applicable to the Services’ analysis of Customer Data (including by way of example only, a label or score). Customer may only use Sturdy Data in connection with using the Services. Customer acknowledges that, as Services are provided to Customer and to Sturdy’s other customers, the Services and the underlying algorithms are engaged in continual machine learning, and that the results and output of such learning are owned solely by Sturdy. Sturdy will not be restricted from improving its services on the basis of general learning and know-how gained from the provision of the Services to Customer and Sturdy's other partners. Sturdy may use any suggestions or feedback perpetually and irrevocably, without accounting, attribution or compensation.
3. Notwithstanding anything to the contrary, Sturdy may collect, produce, use, or retain aggregated or other deidentified data related to or generated from Customer Data or Customer’s use of the Services (e.g. system performance data or trends), provided that such data is not reasonably capable of identifying Customer or any individual consumer or household. Sturdy retains all right, title and interest in and to such data.
4. Aside from the rights granted herein or in an Order Form, neither party grants the other any other right, express or implied, and each party reserves all rights not expressly granted hereunder.
  
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Third-Party Applications.
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The Services may offer features designed to interoperate with third party software applications and services (“Third-Party Applications”). Customer grants Sturdy worldwide, limited-term license to host copy, use, transmit, and display any Third-Party Application and program code created by or for Customer using a Sturdy Service or for use by Customer with the Services, as appropriate for Sturdy to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Third-Party Application with a Sturdy Service, Customer grants Sturdy permission to allow the Third-Party Application and its provider to access Customer Data and information about Customer’s usage of the Third-Party Application as appropriate for the interoperation of that Third-Party Application with the Service. Sturdy cannot guarantee the continued availability of any Third-Party Application and is not responsible for the interoperation of Third-Party Applications with the Services. Any use by Customer of Third-Party Applications, and any exchange of data between Customer and any Third-Party Application provider, is solely between Customer and the applicable Third-Party Application provider. Sturdy is not responsible for any act or omission by a Third-Party Application, including, without limitation, any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Application or its provider. If Customer receives notice that a Third-Party Application must be removed, modified or disabled in connection with applicable laws or third-party rights, Customer will promptly do so. If Customer does not do so, or if Sturdy reasonably believes that a violation of applicable laws or third-party rights is likely to occur or continue, Sturdy may disable the Services’ ability to interoperate with such Third-Party Application.

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Payment, Taxes, and Renewal.
1. Customer will pay fees specified in each Order Form in US Dollars. Except as otherwise specified here or in an Order Form, (1) fees are not refundable, (2) fees are based on subscriptions purchased and not on actual usage (3) quantities cannot be decreased during the term of the subscription.
2. Customer will provide Sturdy with valid credit card information or a valid purchase order. If Customer provides credit card details they authorize Sturdy to charge the credit card for all purchased Services listed in the Order Form for the initial subscription term and for renewal subscriptions. Such charges shall be made in advance in accordance with the billing frequency stated in the Order Form. Sturdy reserves the right to charge interest on late payments at the lower of 1.5% of the outstanding balance per month, or the maximum permitted by law.
3. Sturdy’s fees do not include any present or future taxes, levies, fees or duties of any kind (“Taxes”). Except for any Tax that Sturdy has charged to Customer, Customer is responsible for remitting all Taxes based on or arising from this Agreement (other than Taxes based on Sturdy’s net income), without setoff or deduction from the fees. If Sturdy is held responsible for such Taxes, Customer will reimburse Sturdy for such payments.
  
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Term and Termination
1. This Agreement commences on the data the Customer first accepts it and continues until all subscriptions have expired or have been terminated.
2. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. Sturdy reserves the right to increase pricing at renewal provided that Sturdy provides Customer notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Sturdy’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
3. Termination and Suspension. Unless otherwise specified in an Order Form, either party may terminate this Agreement and any Order Form immediately if (a) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (b) the other party is in material breach of this Agreement, has been given notice of such material breach, and has failed to cure within 30 days (or 5 days in the case of failure to pay fees as described in this Agreement). If this Agreement or an Order Form is terminated for Customer’s uncured breach, Customer will promptly pay any minimum amounts that would have been due for the full duration of the Term as it existed prior to the early termination. Sturdy may suspend access to and use of the Services if Sturdy reasonably believes that Customer’s continuing use of the Services may cause risk of litigation or otherwise be harmful to Sturdy. Upon the termination or expiration of this Agreement, Customer’s right to use the Services will terminate, and Customer will promptly return (or at Sturdy’s election, delete) Sturdy’s Confidential Information (including any Sturdy Data)
  
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Confidentiality

“Confidential Information” means information that the disclosing party identifies as confidential or the receiving party should reasonably understand to be confidential given the circumstances and the type of information. Confidential Information does not include information that the receiving party can demonstrate (a) it knew without restriction before receipt from the disclosing party, (b) is publicly available through no fault of the receiving party, (c) it rightfully received from a third party without a duty of confidentiality or (d) is independently developed without use of the disclosing party’s Confidential Information. The receiving party may use the disclosing party’s Confidential Information only as permitted under this Agreement and must use at least reasonable care to prevent any unauthorized use or disclosure of the disclosing party’s Confidential Information. The receiving party may share the disclosing party’s Confidential Information with its employees, agents and contractors, and in the case of Sturdy with a Third-Party Application provider, who need to know it, as long as they are bound to confidentiality obligations that are consistent with this Agreement and provided that a party that makes a permitted disclosure will remain responsible for the recipient’s compliance with this section. If compelled to do so by law, the receiving party may disclose the disclosing party’s Confidential Information as long as it provides reasonable prior notice to the disclosing party (unless legally prohibited). The terms of the Agreement will be Confidential Information of both parties.

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Mutual Indemnity

Sturdy will indemnify, defend and hold harmless Customer and its officers, directors, employees and representatives from any liability or expense (including reasonable attorneys’ fees) (“Liabilities”) from any third-party claim arising out of or from (i) Sturdy’s violation of applicable laws or regulations or (ii) the Services’, in the form made available by Sturdy, infringement of the intellectual-property or other rights of a third party. Customer will indemnify, defend, and hold harmless Sturdy and its officers, directors, employees and representatives (collectively, “Sturdy Parties”) from any Liabilities from any third-party claim arising out of or from (i) Customer Data or any other Customer information or materials; (ii) Customer’s violation of applicable laws or regulations or infringement of the intellectual-property or other rights of a third party; or (iii) any Third-Party Application. Each party’s indemnification obligations are conditioned on (a) the indemnified party providing the indemnitor with prompt written notice of any claim (provided that the failure to promptly notify will only relieve the indemnitor of its obligation to the extent it can demonstrate material prejudice from such failure), (b) the indemnitor having sole control and authority with respect to the defense and settlement of any such claim, and (c) the indemnified party cooperating fully with the indemnitor, at the indemnitor’s sole cost and expense. The indemnitor will not, without the prior written consent of the indemnified party, agree to any settlement of any such claim that does not include a complete release of the indemnified party from all liability or that imposes any liability, obligation or restriction on the indemnified party. The indemnified party may participate with its own counsel, at its own expense. This Section 11 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.
1. Sturdy will have no obligation for claims arising out of or from (a) the combination of the Services with products or services not supplied by Sturdy, where the cause of action would not have arisen but for such combination, (b) the unauthorized adaptation or modification of the Services, where the cause of action would not have arisen but for such adaptation or modification, (c) use of the Services other than as described in the Agreement. If any of the subsections above apply, Customer will indemnify, defend and hold harmless the Sturdy Parties from and against any Liabilities from such claims.
2. If the Services are held in a suit or proceeding to infringe any intellectual-property or other rights of a third party, or Sturdy reasonably believes that it is likely to be found to do so, then Sturdy may, at its sole cost, expense and option, either (a) procure the right to continue using the Services or (b) modify the Services so that they become non-infringing without affecting the basic functionality of the Services; provided, however, that if (a) and (b) are not practicable, Sturdy may, in its sole discretion, terminate this Agreement with respect to the applicable portion of the Services by giving Customer 30 days’ written notice, upon which termination Sturdy will refund the portion of any prepayment that reflects the remaining subscription term.
  
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DISCLAIMER. EXCEPT AS SET FORTH IN SECTION 3 OF THIS MSA, STURDY PROVIDES ALL SERVICES “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, AND DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
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LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF BREACHES OF SECTION 10OFTHIS MSA OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (A) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE OR ANTICIPATED PROFITS, REGARDLESS OF THE CAUSE OF ACTION AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, AND (B) EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATION TO PAY ANY MINIMUM FEES AND FOR SERVICES ALREADY PROVIDED AND THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, IN NO EVENT WILL A PARTY’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR OWED BY CUSTOMER UNDER THIS AGREEMENT FOR THE 12 MONTHS PRIOR TO THE DATE THAT THE CAUSE OF ACTION AROSE (“STANDARD CAP”). AS TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, IN NO EVENT WILL A PARTY’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED TWO TIMES THE STANDARD CAP. THESE LIMITATIONS OF LIABILITY APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
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Notices

Notices must be in writing and are effective when (a) delivered personally or (b) sent by email to the address provided in this Agreement (the email on the signature page for Customer, and legal@Sturdy.com for Sturdy) if the sending party does not receive an error notice and the email includes in the subject line “LEGAL NOTICE.” For the avoidance of doubt, if the sending party receives an error notice because the receiving party has changed its email address without formally notifying the sending party, the email notice is deemed effective if the sending party is using the last email address provided by the other party for the express purpose of receiving notices. In that case, the sending party will attempt to reach the receiving party by phone.

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Miscellaneous.
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1. Neither party will be liable for failure or delay in performance due to causes beyond its reasonable control, including without limitation acts of God, terrorism, war, riots, fire, earthquake, flood or failure of internet or communications infrastructure.
2. Except as set forth in an Order Form, neither party will make any public statement relating to this Agreement without the prior written approval of the other.
3. Sections 8 and 10-17 will survive the termination or expiration of this Agreement. The Agreement is the entire agreement of the parties relating to this subject matter, and it supersedes all other commitments and understandings with respect to such subject matter. In the event of a conflict between the main body of this MSA and any Order Form, the Order Form will control. Any additional terms that Customer includes in a purchase order or similar document will be of no force and effect unless Sturdy expressly agrees in writing that such terms will supersede this Agreement. The parties acknowledge that they have been represented in the negotiation and execution of this Agreement by legal counsel of their own choice or that they have voluntarily declined to seek such counsel. This Agreement cannot be amended except by a writing signed by both parties.
4. This Agreement is governed by the laws of the State of Delaware, excluding conflicts of laws principles. This Agreement and the licenses herein are not transferable or assignable without the prior written consent of the non-assigning party; provided, however, that either party may assign this Agreement and the licenses herein upon written notice, to an affiliate or an acquirer of substantially all of that party’s assets, stock or business by sale, merger or otherwise. Sturdy may terminate this Agreement upon notice if Customer assigns this Agreement to a Sturdy competitor. If any provision of this Agreement is unenforceable, the validity of the remaining provisions will not be affected. This Agreement may be executed in one or more counterparts. Faxed or emailed PDF copies of a party’s signature constitute valid and binding originals.
5. Any action arising under or related to this Agreement will be resolved in the state or federal courts (and the parties hereby consent to personal jurisdiction) in the County of San Francisco, CA. The prevailing party is entitled to recover all reasonable fees, costs and expenses of enforcing its rights, including reasonable attorneys’ fees. Claims must be brought in the initiating party’s individual capacity, not as a plaintiff or class member in any class action or similar proceeding.