Master Services Agreement

Pixee, Inc. (“Pixee”) has developed and makes available software to assist developers in enhancing the quality and security of their code (the “Pixee Product”), which may be deployed on a SaaS basis (the “Pixee Cloud Product”) or provided to Customer for installation and use on Customer’s premises or private cloud (the “Pixee Enterprise Server”), in each case as further described in the applicable Order Form.

1.     Definitions
1.1  The following terms, when used in this Agreement will have the following meanings:

“Affiliate” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists.  For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.

“Confidential Information” means any information disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure.  However, “Confidential Information” will not include any information that (a) is in the public domain through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

“Customer Materials” means any data, content or materials that Customer (including its Users) submits to the Pixee Cloud Product.

“Documentation” means Pixee’s then-current standard usage documentation for the Pixee Product.

“Effective Date” means the date of the initial Order Form entered into between Customer and Pixee.

“Order Form” means an ordering document or online order entered into between Customer and Pixee, or online ordering flow completed by Customer, in each case that sets forth the applicable Pixee Product to which Customer is subscribing, pricing therefor and subscription term, and that references this Agreement.

“Professional Services” means training, migration or other professional services that Pixee furnishes to Customer related to the Pixee Product, as set forth in an Order Form or statement of work that references this Agreement and is entered into by the parties (collectively, “SOW”).

“Third Party Platform” means any third party service or platform that Customer elects to use with the Pixee Product.

“User” means anyone that Customer allows to use its accounts for the Pixee Product, consisting of Customer’s employees and contractors (solely for purposes of providing services to Customer).

2.     Pixee Product
2.1  Provision of Pixee Product.  Subject to this Agreement, Pixee will make the Pixee Product available to Customer pursuant to this Agreement, the Service Level Agreement incorporated herein by reference, and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Pixee Product (including a non-sublicensable license to install and use the Pixee Enterprise Server, if applicable) for its internal business purposes during the applicable subscription term.  Customer may permit Users to use the Pixee Product on its behalf. Customer is responsible for provisioning and managing its User accounts, its Users’ actions through the Pixee Product and their compliance with this Agreement.
2.2.  Data Security.  With respect to the Pixee Cloud Product, Pixee will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Materials; (ii) protect against threats or hazards to the security or integrity of Customer Materials; and (iii) prevent unauthorized access to Customer Materials.
2.3.  Customer Responsibilities.
         (a) Customer acknowledges that Pixee’s provision of the Pixee Product is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer’s systems, personnel, cooperation and materials as reasonably required and any other access as may be specified in the applicable Order Form), and Customer will provide all such cooperation in a diligent and timely manner.
         (b) Customer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Pixee Product and notify Pixee promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the Pixee Product and (ii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Pixee Product, including as set forth in the Documentation.  Customer will be solely responsible for its failure to maintain such equipment, software and services, and Pixee will have no liability for such failure (including under any service level agreement).  As between the parties, Customer is responsible for the content and accuracy of Customer Materials.
         (c) Customer will not use the Pixee Product to transmit or provide to Pixee any financial or medical information of any nature, or any sensitive personal data (e.g., social security numbers, driver’s license numbers, birth dates, personal bank account numbers, passport or visa numbers and credit card numbers).
2.4  Professional Services.  If applicable, Pixee will perform Professional Services as described in a SOW, which may identify additional terms or milestones for the Professional Services. Customer will give Pixee timely access to Customer Materials reasonably needed for Professional Services, and Pixee will use the Customer Materials only for purposes of providing Professional Services. Customer may use code or other deliverables that Pixee furnishes as part of Professional Services only in connection with Customer’s authorized use of the Pixee Product under this Agreement.
2.5  Affiliates.  Any Affiliate of Customer will have the right to enter into an Order Form and this Agreement will apply to each such Order Form.  With respect to any such Order Form, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate.  Each Order Form is a separate obligation of the Customer entity that enters into such Order Form, and no other Customer entity has any liability or obligation under such Order Form.
2.6  Free Trials; No-Charge Products.  Pixee may offer certain Pixee Products at no charge, including free accounts, trial use and pre-release, alpha or beta versions or features (collectively, “No-Charge Products”).  Customer’s use of No-Charge Products is subject to any additional terms that Pixee may specify.  Except as otherwise set forth in this Section, this Agreement applies to No-Charge Products.  Pixee may modify or terminate Customer’s right to use No-Charge Products at any time.  NOTWITHSTANDING ANYTHING HEREIN OR OTHERWISE TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PIXEE DISCLAIMS ALL OBLIGATIONS, WARRANTIES AND LIABILITIES WITH RESPECT TO NO-CHARGE PRODUCTS, INCLUDING ANY SERVICE LEVEL OR INDEMNITY OBLIGATIONS, AND PIXEE’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER IN RESPECT OF NO-CHARGE PRODUCTS WILL BE US $100.

3.     Fees
3.1   Fees. Customer will pay Pixee the fees set forth in the applicable Order Form.  Customer will pay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt of the applicable invoice (the “Payment Period”), unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified.  Except as otherwise specified herein or in such Order Form, payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.  If Customer disputes an invoice in good faith, it will notify Pixee within the Payment Period and the parties will seek to resolve the dispute as soon as reasonably practicable.  Pixee may provide Customer with written notice of a change or increase in pricing for such Order Form at least sixty (60) days prior to the end of the then-current subscription term, and such modified pricing will become effective thereafter at the time of the renewal.
3.2   Late Payment.  Pixee may suspend access to the Pixee Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date. If Pixee has not received payment within five (5) days after the applicable due date, interest will accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Pixee. 
3.3   Taxes.  All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”).  Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Pixee.  Customer will not withhold any taxes from any amounts due to Pixee.

4.     Proprietary Rights and Confidentiality
4.1   Proprietary Rights.  As between the parties, Pixee exclusively owns all right, title and interest in and to the Pixee Product, Professional Services deliverables, System Data and Pixee’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Materials and Customer’s Confidential Information.  “System Data” means data collected by Pixee regarding the Pixee Product that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Pixee Product.  Subject to this Agreement, Pixee hereby grants Customer a non-exclusive, non-sublicensable right and license to use the Professional Services deliverables solely as part of its permitted use of the Pixee Product.
4.2   Feedback.  Customer may from time to time provide Pixee suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Pixee Product.  Pixee will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality.  Pixee will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.  All Feedback is provided “AS IS” and Pixee will not publicly identify Customer as the source of Feedback without Customer’s permission.
4.3   Product Improvement and Aggregated Statistics.  Customer further agrees that, notwithstanding anything herein, Pixee is hereby granted the right to aggregate, collect, retain and analyze Customer Materials and will be free (during and after the term hereof) to use anonymized Customer Materials to provide and improve Pixee’s products and services.

5.      Confidentiality; Restrictions
5.1   Confidentiality.  Each receiving party agrees that it will use the Confidential Information of the disclosing party solely in accordance with the provisions of this Agreement and it will not disclose the same to any third party without the disclosing party’s prior written consent, except as otherwise permitted hereunder.  However, the receiving party may disclose such Confidential Information (a) to its employees and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law).  Neither party will disclose the terms of any Order Forms to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers.
5.2   Technology Restrictions.  Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Pixee Product; (b) attempt to probe, scan or test the vulnerability of the Pixee Product, breach the security or authentication measures of the Pixee Product without proper authorization or wilfully render any part of the Pixee Product unusable; (c) use or access the Pixee Product to develop a product or service that is competitive with Pixee’s products or services or engage in competitive analysis or benchmarking; (d) except as expressly permitted in the Order Form, transfer, distribute, resell, lease, license, or assign the Pixee Product or otherwise offer the Pixee Product on a standalone basis, use the Pixee Enterprise Server in an application service provider or managed service provider environment, or copy the Pixee Enterprise Server onto any public or distributed network, except for an internal and secure private cloud computing environment; or (e) otherwise use the Pixee Product in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.

6.     Warranties and Disclaimers
6.1   Mutual.  Each party warrants that (a) it has the legal power and authority to enter into this Agreement and (b) it will use industry-standard measures to avoid introducing viruses or other malicious code into the Pixee Product.
6.2   Pixee.  Pixee warrants that (a) the Pixee Product will perform materially as described in the Documentation and Pixee will not materially decrease the overall functionality of the Pixee Product during the applicable subscription term (the “Performance Warranty”), and (b) any Professional Services will be provided in a professional and workmanlike manner (the “Professional Services Warranty”).  Pixee will use reasonable efforts to correct a verified breach of the Performance Warranty or Professional Services Warranty reported by Customer. If Pixee fails to do so within 30 days after Customer's warranty report, then either party may terminate the applicable Order Form as it relates to the non-conforming Pixee Product or Professional Services, in which case Pixee will provide Customer a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term (for the Performance Warranty) or for the non-conforming Professional Services (for the Professional Services Warranty). To receive these remedies, Customer must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the Pixee Product or 30 days after delivery of the relevant Professional Services. These procedures are Customer’s exclusive remedies and Pixee’s sole liability for breach of the Performance Warranty or Professional Services Warranty.
6.3   Customer.  Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Pixee to use the same as contemplated hereunder.
6.4   DISCLAIMERS.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  PIXEE DOES NOT REPRESENT OR WARRANT THAT THE PIXEE PRODUCT WILL BE ERROR-FREE.  PIXEE IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PLATFORMS AND DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF.

7.     Indemnification
7.1   Indemnity by Pixee.  Pixee will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Pixee Product as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Pixee) in connection with any such Claim; provided that (a) Customer will promptly notify Pixee of such Claim, (b) Pixee will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Pixee may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Pixee in connection therewith.  If the use of the Pixee Product by Customer has become, or in Pixee’s opinion is likely to become, the subject of any claim of infringement, Pixee may at its option and expense (i) procure for Customer the right to continue using and receiving the Pixee Product as set forth hereunder; (ii) replace or modify the Pixee Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide Customer a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term.  Pixee will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) designs, guidelines, configurations, plans or specifications provided by Customer; (B) use of the Pixee Product by Customer not in accordance with this Agreement; (C) modification of the Pixee Product by or on behalf of Customer; (D) Customer Materials, (E) the combination, operation or use of the Pixee Product with other products or services where the Pixee Product would not by itself be infringing, or (F) with respect to Pixee Enterprise Server, any failure by Customer to use a non-infringing workaround or modification that does not materially adversely affect the functionality or availability of the Pixee Product (clauses (A) through (F), “Excluded Claims”).  This Section states Pixee’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
7.2   Indemnification by Customer.  Customer will defend Pixee against any Claim made or brought against Pixee by a third party arising out of any Excluded Claims, and Customer will indemnify Pixee for any damages finally awarded against Pixee (or any settlement approved by Customer) in connection with any such Claim; provided that (a) Pixee will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Pixee’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Pixee of all liability) and (c) Pixee reasonably cooperates with Customer in connection therewith.

8.    Limitation of Liability
‍EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.  
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9. Termination
‍9.1   Term.  The term of this Agreement will commence on the date of the initial Order Form and continue until terminated as set forth below.  The initial term of each Order Form will begin on the start date indicated in such Order Form and will continue for the subscription term set forth therein.  Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.  If Customer does not agree to automatic renewals, Customer may opt-out of automatic renewals by providing written notice to Pixee within fourteen (14) days of the date of the initial Order Form.  
9.2   Termination.  Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect.  Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days. 
9.3   Survival.  Upon expiration or termination of this Agreement (a) all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below, and (b) each receiving party will return or destroy, at the disclosing party’s option, any Confidential Information of such disclosing party in the receiving party’s possession or control.  Upon expiration or termination of an Order Form, Customer will destroy any copies of Pixee Enterprise Server provided under such Order Form.

10.     General
10.1   Insurance.  Pixee will, during the term of this Agreement, maintain in force the following insurance coverage at its own cost and expense: (a) Statutory Worker’s Compensation and Employer’s Liability as required by state law with a minimum limit of $1,000,000 each accident / $1,000,000 each disease / $1,000,000 policy limit per occurrence, Disability and Unemployment Insurance, and all other insurance as required by law, including Employer’s Liability Insurance with limits of no less than $1,000,000 per occurrence, or any amount required by applicable law, whichever is greater; (b) Commercial General Liability, on an occurrence basis, including premises-operations, product completed-operations, broad form property damage, contractual liability, and personal liability, with a minimum combined single limit of $1,000,000 per occurrence; and (c) Professional Errors and Omissions and Cyber Liability coverage covering the Pixee Product, with coverage limits of not less than $1,000,000 per claim or per occurrence/$1,000,000 aggregate, placed on an“occurrence” basis.
10.2   Publicity.  Customer agrees that Pixee may refer to Customer’s name and trademarks in Pixee’s marketing materials and website; however, Pixee will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).  If Customer does not agree to Pixee’s use of Customer’s name or trademark in Pixee’s marketing materials, Customer may opt-out of such use by providing written notice to Pixee within fourteen (14) days of the date of the initial Order Form.
10.3   Assignment; Delegation.  Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement.  Upon any permitted assignment of this Agreement by Customer or other corporate transaction involving Customer that would materially increase its Pixee Product usage, if an Order Form contains a subscription for an unlimited amount of usage for any component of the Pixee Product, such subscription will, with respect to Customer or the successor entity, as applicable, be limited to the monthly average usage (in the prior 12 months, pro rated as needed) by Customer with respect to such component under such Order Form prior to such assignment or other transaction, except as otherwise agreed upon in writing by the parties.  Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void.  Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
10.4   Amendment.  No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties.  Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision.  Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
10.5   Waiver. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision.  Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.  
10.6   Relationship.  Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
10.7   Unenforceability.  If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
10.8   Governing Law.  This Agreement will be governed by the laws of the State of Delaware, exclusive of its rules governing choice of law and conflict of laws.  This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
10.9   Notices.  Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery.  Notices to the Customer may be sent to the address listed on the Customer’s applicable Order Form or email address provided by Customer when Customer creates its Pixee Product account.  Notices to Pixee must be sent to the following:
Pixee, Inc.
5835 York Rd #1136 
Baltimore, MD 21212
Attn: Legal
10.10   Entire Agreement.  This Agreement comprises the entire agreement between Customer and Pixee with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written).  No oral or written information or advice given by Pixee, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
10.11   Force Majeure.  Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
10.12   Government Terms.  Pixee provides the Pixee Product, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement.  If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Pixee Product, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement.  All other use is prohibited and no rights than those provided in this Agreement are conferred. The Pixee Product was developed fully at private expense.
10.13   Interpretation.  For purposes hereof, “including” means “including without limitation”.