Master Enterprise Services Agreement

This Master Enterprise Services Agreement (this “Agreement”) is made and entered into as of the subscription start date (the “Effective Date”) defined in the Order Form ("Order"), by and between Stackbit Inc., a Delaware corporation (“Stackbit”), and the corporation defined in the Order as customer (“Customer”).

RECITALS

1. Stackbit provides a cloud-based solution for developing and maintaining websites and webpages, including any software provided or made available to Customer by Stackbit (the “Software”). Such service, as well as optional Consulting Services defined in Section 1.7, collectively with the Software will be considered the “Stackbit Service”).

2. Customer desires to use, and Stackbit wishes to provide, the Stackbit Service to Customer, subject to and in accordance with the terms and conditions of this Agreement.

NOW, THEREFORE, the parties hereby agree as follows:

1. LICENSE.

1.1 Grant of License. Subject to Customer’s compliance with the terms and conditions of this Agreement, Stackbit hereby grants to Customer a limited, nonexclusive, nontransferable, revocable license, during the Term specified in one or more Order(s) signed by the parties, to access and use the Stackbit Service (including Software) as described in the Order. This Agreement is structured as a master agreement, providing the general terms and conditions for each Order of products and services from Stackbit. Each "Order" will be signed by Customer and Stackbit, and will be deemed governed by this Agreement automatically.  In the event of any conflict between the terms of this Agreement and any Order, the terms of the applicable Order will control.

1.2 License Restrictions. Except as otherwise agreed by Stackbit in a separate written agreement, Customer will not resell or license the Stackbit Service to third parties. Customer will not interfere with the integrity or performance of the Stackbit Service. Customer acknowledges that the Stackbit Service contains trade secrets of Stackbit and its licensors, and, in order to protect such trade secrets and other interests that Stackbit and its licensors may have in the Stackbit Service, Customer agrees not to reverse engineer, decompile or disassemble the Software or authorize a third party to do any of the foregoing. Customer will not modify the Software. Customer will not distribute, sell, sublicense or otherwise transfer the Software. Customer will not copy or try to reproduce the Software, except as strictly necessary to use the Software in accordance with the terms of Section 1.1.

1.3 Limited Rights.  Customer’s rights in the Stackbit Service will be limited to those expressly granted in Section 1.1.  Stackbit and its licensors reserve all rights and licenses in and to the Stackbit Service not expressly granted to Customer under this Agreement.

1.4 Delivery. Stackbit will grant access to the Software to Customer starting the Effective Date of the relevant Order. At Customer’s request, Stackbit will provide reasonable assistance to Customer in connection with Customer’s use of the Software.

1.5 Fees.  Customer will pay fees to use of the Stackbit Service and support, as described in the Order and/or SOW. All billing disputes must be made in writing within 20 days after the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. The fees stated above are exclusive of any sales, use, value added or similar transaction taxes (excluding taxes based on Stackbit’s income). Stackbit will notify Customer in the event Customer fails to pay any invoice in accordance with the terms of this Agreement.  If any amount due to Stackbit is not paid within fifteen days of the late notice, then, until such amounts are paid in full, Stackbit may: (a) charge interest on any unpaid amount due at the rate of 1% per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (b) suspend the Stackbit Service. In the event Stackbit is required to pursue legal action or collection of any fees payable hereunder, Customer will pay the costs and fees associated with such action or collection.

1.6 Access.  Stackbit may provide Customer with access to a Customer account for the Stackbit Service (“Account”). Customer agrees that the Stackbit Service may only be accessed and used by Customer’s employees (“Authorized Users”) who are authorized by Customer to use the Stackbit Service on Customer’s behalf, who will abide by the terms and conditions of this Agreement and who may only access and use the Stackbit Service for the purposes of performing their job functions for Customer.  Customer agrees that Customer (and its Authorized Users) won’t disclose individual Account passwords to anyone and Customer will notify Stackbit immediately of any unauthorized use of its Account. Customer is responsible for all activities that occur under its Account, whether or not Customer knows about them.  Without limiting the foregoing, Customer is responsible for the use of the Stackbit Services by the Authorized Users (and their compliance with these Terms).

1.7 Consulting Services.  Stackbit also offers various consulting services relating to implementation and use of Software and development and maintenance of Customer website(s), including for example implementation, configuration, developer onboarding, developer oversight, engagement management, tech lead and other consulting services (“Consulting Services”). The terms and conditions of Exhibit A, in additional to the terms of this Agreement, shall apply to all Consulting Services described in the relevant Statement of Work signed by the parties.

2. FEEDBACK.

Customer may, in its sole discretion provide feedback, comments, feature requests and suggestions for improvements to Stackbit.  All feedback, comments, feature requests and suggestions for improvements that Customer or its Authorized Users provide to Stackbit hereunder are referred to collectively as “Feedback”.

3. OWNERSHIP.

3.1 Ownership of Stackbit Service. Stackbit shall exclusively own the Stackbit Service, all preexisting software and data, as well as Stackbit’s work product or improvements made by Stackbit as a result of the performance of this Agreement and provision of the Stackbit Service, except with respect to Outputs described in Section 3.2. Customer acknowledges and agrees that all Feedback will be the sole and exclusive property of Stackbit.

3.2 Ownership of Outputs. Customer will own all right, title and interest in the webpages, data, content and other components thereof created by Customer using the Stackbit Service.

3.3 Customer Content. As between the parties, Customer owns all of the content provided to Stackbit by Customer, as well as any data transmitted and processed through Customer’s account on the Stackbit Service (the “Customer Content”). Stackbit will process the Customer Content only as described in this Agreement and will maintain appropriate administrative, technical and physical security measures to protect Customer Content against unauthorized access, disclosure and loss.  Customer is solely responsible for creating backup copies of any Customer Content at its sole expense.

4. CONFIDENTIAL INFORMATION.

4.1 Definition. “Confidential Information” means: (a) the Stackbit Service, and any features, results or output produced by, and other information relating to, the Stackbit Service (including, without limitation, all Feedback); and (b) any business or technical information of either party, including, but not limited to, any information relating to product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by a party as “confidential” or “proprietary” or that a reasonable person should consider confidential in the context of its disclosure or due to the nature of the information itself and any of Customer’s information disclosed by Customer or which Stackbit has access.

4.2 Exclusions. The obligations in Section 4.3 will not apply to the extent any information: (a) is or becomes generally known to the public through no fault or breach of this Agreement by either party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without access to or use of any Confidential Information; or (d) is rightfully obtained by the receiving party from a third party without restriction on use or disclosure.

4.3 Restrictions. Neither party will use any Confidential Information of the other party, except as necessary for the performance of this Agreement.  Each party will use all reasonable efforts to protect the other party’s Confidential Information from unauthorized use or disclosure, but in no event less than the efforts that it ordinarily uses with respect to its own proprietary information of a similar nature and importance.  Neither party may disclose the other party’s Confidential Information except to those of its employees who have a bona fide need to know such Confidential Information for the performance of this Agreement; provided, that each such employee first executes a written agreement (or is otherwise already bound by a written agreement or statutory legal obligation) that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement.

5. WARRANTY; DISCLAIMERS.

5.1 Warranty.  Stackbit has all rights necessary to grant the rights set forth herein and the use by Customer of the Software as permitted herein shall not violate any law or the intellectual property rights of any third party. If in the future the Customer accesses the Stackbit Service via calls to an API, the parties will negotiate in good faith a service level addendum for uptime requirements, to be mutually agreed.

5.2 Warranty Disclaimers. Customer acknowledges that the Stackbit Service is being provided “AS IS.”  STACKBIT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

6. LIMITATION ON LIABILITY.

IN NO EVENT WILL STACKBIT BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR EITHER (A) SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE STACKBIT SERVICE OR FOR ANY ERROR OR DEFECT IN THE STACKBIT SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT STACKBIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (B) DIRECT DAMAGES IN EXCESS OF $1,000. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  THE LIMITATIONS SET FORTH IN THIS SECTION 6 WILL NOT APPLY TO ANY AMOUNTS PAYABLE TO A THIRD PARTY UNDER SECTION 8 (INDEMNIFICATION).

7. TERM AND TERMINATION.

7.1 Term. The term of this Agreement will commence as of the Effective Date and will continue until all Orders and/or SOWs have expired or been terminated, unless sooner terminated as provided below. Unless the Order and/or SOW provides otherwise, each Order will automatically renew for successive one (1) year terms unless either party provides notice of nonrenewal no less than thirty (30) days prior to the end of the then-current term of such Order or SOW.

7.2     Termination. Either party may terminate this Agreement and/or an Order if the other party commits a material breach which is not cured within thirty (30) days after written notice. Either party may terminate this Agreement without cause upon thirty (30) days' written notice; provided however that such termination will not be effective until all Orders and/or SOWs have expired.

7.3 Effect of Termination; Survival. Upon any termination or expiration of this Agreement the rights and licenses granted to Customer under this Agreement will automatically terminate. Any provision of this Agreement with expressly or by its nature is intended to survive will survive any termination or expiration of this Agreement.

8. INDEMNIFICATION

8.1 By Stackbit.  Stackbit will defend, indemnify and hold Customer, its officers, directors, employees and consultants harmless against any third party claim, suit, proceeding or regulatory action (each, a “Claim”) alleging that the Stackbit Service infringes any copyright, trade secret, trade or service mark or United States patent of such third party.

8.2 By Customer.  Customer will defend, indemnify and hold Stackbit, its officers, directors, employees and consultants harmless against any Claim alleging that the Customer Content infringes any copyright, trade secret, trade or service mark or United States patent or the privacy rights of a third party.

8.3 Conditions.  As a condition of the obligations set forth in this Section, a party entitled to indemnification under this Agreement (the “Indemnified Party”) will: (a) provide prompt written notice of the applicable Claim to the other party (the “Indemnifying Party”); (b) provide the Indemnifying Party with sole control of the applicable defense and settlement; and (c) cooperate as requested by the Indemnifying Party, at the Indemnifying Party’s expense.  The Indemnifying Party will not agree to any settlement unless such settlement includes a full release of the Claim against the Indemnified Party.

9. GENERAL PROVISIONS.

9.1 Assignment. Customer may not assign this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Stackbit.  Notwithstanding the foregoing, either party may assign this Agreement to a successor-in-interest in connection with a merger, sale of assets, sale of stock or any change of control transaction. Any attempted assignment without such consent will be null and of no effect.

9.2 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, USA (excluding its body of law controlling conflicts of law).  The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.  Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.

9.3 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect.

9.4 Notices. All notices required or permitted under this Agreement will be in writing and delivered in person, by email, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt.  All communications will be sent to the addresses set forth below or to such other address as may be specified by either party to the other in accordance with this Section.

If to Stackbit:

Stackbit, Inc.

2093 Philadelphia Pike #1024 Claymont, DE 19703 United States legal@stackbit.com

If to Customer:

See contact information defined in the Order Form.

9.5 Testimonials. Customer agrees to a named case study, testimonials, and logo usage.

9.6 Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.  Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.

9.7 Entire Agreement; Waiver. This Agreement and the attached exhibits constitute the entire and exclusive agreement between the parties pertaining to the subject matter hereof, and supersede any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter.  This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.  The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default.

9.8 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

EXHIBIT A

ADDITIONAL TERMS APPLICABLE TO CONSULTING SERVICES

Services.  The provisions in this Exhibit A apply to Consulting Services.  “Consulting Services” means Stackbit’s services relating to the implementation, configuration, developer onboarding, developer oversight, engagement management, tech lead and other consulting services.

Change in Scope.  Modifications to a Statement of Work (“SOW”) may only be made by a written amendment executed by authorized representatives of both parties (a “Change Order”).  Stackbit will not be obligated to deviate from an SOW until the parties execute a corresponding Change Order.

Termination.  In addition to the termination rights in the Agreement, if an SOW provides only for Consulting Services, (i) either party may terminate a SOW for Consulting  Services due to a material breach by the other party if such breach remains uncured after thirty (30) days written notice to the other party, and (ii) Customer may only terminate a SOW for Consulting  Services for its convenience upon ninety (90) days prior written notice to Stackbit.

Deliverables. Customer will own all visual or written material that is prepared for and delivered to it under a Consulting Services SOW (“Deliverables”), except as follows: Stackbit will own its preexisting materials and software, as well as any general skills, know-how, processes, methodologies, tools, techniques or other intellectual property which Stackbt may have discovered or created as a result of the Services (“Stackbit Materials”).  Upon payment, Customer has a nonexclusive, non-transferable license to use any Stackbit Materials included in the Deliverables for use as part of those Deliverables.

Use of Consulting Services and Deliverables.  Customer alone makes the decision of what content is included in the Deliverables and the decision to publish or disclose Deliverables to third parties, and Customer accepts them as its own and takes full responsibility for such Deliverables as if they were created by Customer alone. For example, with respect to Deliverables in the form of branding, logo, trade names, design, copy, content, graphics, photos, slogans,  identifying marks or other Deliverables that Customer intends to disclose to third parties or use publicly, Customer must be responsible to perform due diligence such as trademark searches and investigate prior usage in the marketplace and make its own determination about Customer’s freedom to use Deliverables in the manner Customer intends. Customer should indemnify, defend and hold harmless Stackbit and its owners, employees, contractors and consultants from and against all liability, damages and costs arising from publication (for example deployment of a public website), disclosure or public use of Deliverables by Customer or anyone gaining access through Customer, including claims that the Deliverables or use thereof infringe or misappropriate the intellectual property rights of a third party.

Customer Materials. Customer will provide Stackbit access to information, content, images, photos, trademarks or service marks and other materials to perform the Consulting Services, as well as other information Customer elects to provide Stackbit (“Provided Materials”). Customer grants to Stackbit and its contractors and consultants a nonexclusive license to use Provided Materials to perform the Consulting Services. Customer is responsible for obtaining any third-party approvals required for use of Provided Materials. Customer agrees to indemnify, defend and hold harmless Stackbit and its owners, employees and consultants from and against any and all liability, damages and costs arising from a third-party claim related to the Provided Materials and Stackbit’s receipt or use of Provided Materials.

Subcontractors. Stackbit may engage the services of contractors and consutants both within the US ad outside the US to assist Stackbit in performing the Consulting Services, and Customer agrees that Stackbit may provide information Stackbit receives in connection with this Agreement to the contractors and consultants for such purposes.  Stackbit will be solely responsible for the provision of the Consulting Services (including those performed by the contractors and consultants).

Responsibilities of the Parties. Customer is responsible for all management decisions relating to the Consulting Services and Deliverables, including without limitation, ultimate design and all specification of Deliverables as well as the decision to accept and implement any recommendations. Customer will (i) provide Stackbit reasonably noticed and scheduled access to Customer’s subject matter resources having suitable knowledge and expertise to perform their respective project roles; (ii) timely respond to Stackbit’s requests for information, approvals and decisions and shall obtain all necessary third party consents from third parties for information, materials, hardware, or software which is provided by or on behalf of Customer; and (iii) promptly complete acceptance testing and formally accept each Deliverable within the Acceptance period (defined below).

Acceptance of Services and Deliverables.

The following provisions shall supersede any acceptance criteria in the Agreement and shall apply to and govern acceptance of Consulting Services Deliverables.

*Acceptance Process. *During each Acceptance Period, Customer may conduct Acceptance Testing or Acceptance Review of Deliverables to confirm achievement of the Deliverables’ associated Acceptance Criteria.

“Acceptance Criteria” are the objective criteria set forth in writing and mutually agreed upon by the Parties for the particular Deliverable.

“Acceptance Period” means the period of time for either Acceptance Testing or Acceptance Review of each applicable Deliverable as set forth in the applicable SOW or, if no time is specified, forty-eight (48) hours. The Acceptance Period commences upon Stackbit’s presentation of the Deliverable for Acceptance Review or Acceptance Testing.

“Acceptance Review” means the review of a Deliverable to confirm that the Deliverable is prepared in accordance with its Acceptance Criteria.

“Acceptance Testing” means the use of scripts and procedures to test the operation of software Deliverables to determine whether such Deliverable meets its Acceptance Criteria.  Customer shall conduct Acceptance Testing at Customer’s expense, including provision of a controlled test environment, testing software if applicable, and drafting scripts and procedures.

If a Deliverable meets the relevant Acceptance Criteria, Customer shall deliver written notification of Acceptance to Stackbit of such fact by the end of the Acceptance Period for such Deliverable. If a Deliverable does not meet the relevant Acceptance Criteria, Customer shall deliver written notification (the “Notice of Nonconformity”) to Stackbit of such fact by the end of the Acceptance Period for such Deliverable, describing such nonconformity with particularity.  Promptly after receiving the Notice of Nonconformity, Stackbit shall undertake correction efforts and redeliver the revised Deliverable to Customer.  Upon completion of such corrections and Stackbit’s redelivery to Customer of the Deliverable, the Acceptance Period for the corrections shall be as set forth in the applicable SOW, or if no such time period is specified, a reasonable time period which in no event shall be longer than the original Acceptance Period.  The retesting period shall commence upon redelivery of the correction to the Customer.  Customer shall have such Acceptance Period to retest the corrections to determine whether the previously reported nonconformity has been corrected and if the corrections or performance of the corrections meets the relevant Acceptance Criteria.  If Stackbit is unable to correct the Nonconformity or correction of the Nonconformity is not commercially practical in Stackbit’s reasonable opinion, then Customer shall cease use of the Nonconforming Deliverable(s) and Stackbit shall return an appropriate portion of any payment made by Customer for such Nonconforming Deliverable(s).

Acceptance.  Acceptance of a Deliverable is achieved upon the earlier of: (i) the date of the Notice of Acceptance, (ii) the expiration of the Acceptance Period for such Deliverable without Stackbit’s receipt of Customer’s Notice of Nonconformity, or (iii) the date a Deliverable is placed into Customer’s production environment (in any case, the “Acceptance”).

Viruses and Disabling Code.

Viruses.  Stackbit will use and maintain commercially available anti-virus software which is designed to prevent the introduction of viruses and/or similar items into the Deliverables and Stackbit shall not knowingly include or knowingly permit the inclusion of any Virus in any Deliverable.

Disabling Code.  Stackbit will not include, activate or invoke, or knowingly permit the inclusion or activation or invoking, of any Disabling Code in any Deliverable.  “Disabling Code” means code which is designed to have the effect of (a) permitting improper use, access, deletion or modification of, one or more software programs or systems and/or hardware or hardware systems, or (b) improperly disabling, deactivating, damaging or shutting down one or more software programs or systems and/or hardware or hardware systems; in each case, including, without limitation, “time bombs,” “protect codes,” “data destruction keys,” “trap doors,” and similar code or devices.

Warranty – Deliverables.  Stackbit warrants that, as of the date of delivery, each software Deliverable will conform in all material respects with, the Acceptance Criteria for such Software Deliverable during its Warranty Period. The “Warranty Period” for each Software Deliverable shall commence upon its Acceptance and extend for a period of sixty (60) days. Warranty claims must be made prior to the expiration of the Warranty Period and failure to make such claims during the Warranty Period shall result in a complete waiver of any such claim. The foregoing warranty will not apply to: (i) nonconformities that cannot be confirmed in a controlled test environment, (ii) any nonconformity resulting from Customer’s use of any Software Deliverable in a manner that is inconsistent with its Acceptance Criteria, (iii) any nonconformity arising after Customer’s or any third party’s modification of the Software Deliverable or any related Deliverable following Acceptance, or (iv) any issues or defects related to Customer’s data, connected hardware or peripheral devices, or Customer’s network. Customer’s sole and exclusive remedy for any claims, losses, liabilities or damages in any way arising from or relating to Stackbit’s breach of the above warranty shall be: (i) for Stackbit to cause the Software Deliverable(s) to be in material conformity with its Acceptance Criteria; or (ii) to the extent such material conformity is not commercially practical in Stackbit’s reasonable opinion, then Stackbit shall return an appropriate portion of any payment made by Customer with respect to the nonconforming Software Deliverable(s).

THE FOREGOING SETS FORTH STACKBIT’S SOLE WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SERVICES AND ANY DELIVERABLES, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, LOSS OF DATA, NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT OR OTHERWISE.

Non-Solicitation. During the term of this Agreement and each SOW and for twelve (12) months thereafter, neither party shall intentionally solicit for employment or as an independent contractor any person employed by the other or any affiliate of the other, if such person was involved directly or indirectly in the performance of the Consulting Services.  This provision shall not prohibit the hiring of any person who responded to general solicitations, including but not limited to, job postings published in newspapers, trade publications or on websites that did not target that person directly.