MASTER SERVICES AGREEMENT
A customer may receive “Promotional Credits”. Promotional credits will be valid during the 1 year service term. Eligible Services are processing of Photogrammetry and Volumetric Video. Consulting up to 5 hours of time are Eligible Services and subject to
availability. All Other Services are subject to approval with a written request to use as Eligible Services. Travel
and Expenses for Onsite Consulting are not Eligible Services and will be paid at agreed upon rate. All
Promotional Credits are subject to the terms of Section 4 herein.
Services Fees All Pricing Based on upload sizes and all pricing is subject to change. All fees are subject to the terms of Section 4 herein.
Asset Size Specifications Cost Per Asset
Small Under 1 GB $75
Medium Under 3 GB $150
Large Under 10 GB $300
XL Over 10 GB $500
Asset Size Specifications Cost Per Minute (30fps)
Small 100GB $3000
Medium 150GB $3500
Large 200GB $4000
XL Over 200GB $6000
Description Specifications Cost Per Use
Consulting* Booked in advance for
consultation via call or video conferencing.
$350 per hour per person
Onsite Consulting* Booked in advance for onsite
$5000 per day per person + Travel Expenses
Additional Services* Updates to the platform will
include more optional services that can be added during the ordering process for each asset.
Costs will be be reflected on an a la carte basis in the webportal
Service Capacity: Storage is subject to a 30 day maximum. All stored projects beyond 30 days will be subject to a surcharge of $0.10 per gigabyte day.
Implementation Services: Company will use commercially reasonable efforts to provide Customer the services described herein. Any additional work can be scoped and attached as an Exhibit hereto and Customer shall pay Company the Implementation Fee in accordance with the terms herein.
This Software as a Service (SaaS) Agreement (“Agreement”) is entered into on this between Mod Tech Labs Inc. with a place of business at 6234 Boxcar Run Austin, Texas 78745 (“Company”), and the Customer is the individual who accepts this agreement (“Customer”). This Agreement includes and incorporates the above Account Setup Form, as well as the attached Terms and Conditions and contains, among other things, warranty disclaimers, liability limitations and use limitations as well as any additional Exhibits. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
TERMS AND CONDITIONS
- SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with services and agreements made available on website. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth herein and updated on the website.
1.3 Company will provide Technical Support to Customer via email and telephone on weekdays during the hours of 9:00 am through 5:00 pm Central time, with the exclusion of Federal Holidays (“Support Hours”).
1.4 Customer may initiate a helpdesk ticket during Support Hours by emailing email@example.com Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.
1.5 The Services shall be available 98.6%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer’s sole and exclusive remedy, and Company’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than [twenty four hours], Company will credit Customer 5% of Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
- RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: 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”); 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); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. 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 Further, Customer may 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 this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. [Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.] 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 violation of the foregoing.
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 account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
- CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose 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 Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. 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, 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 or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, 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.
3.3 Notwithstanding anything to the contrary, Company shall have the right 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 hereof) 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.
3.4 Customer hereby grants to Company the express right to use Customer’s company name and/or logo in marketing, sales, financial, and public relations materials and other communications solely to identify Customer as a Mod Tech Labs Customer. Company hereby grants to Customer the express right to use Mod Tech Labs company name and logo solely to identify Company as a provider of services to Customer. Other than as expressly stated herein, neither party shall use the other party’s names, marks, codes, drawings or specifications without the prior written permission of the other party.
- PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‐current renewal term, upon 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 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to the Company’s customer support department.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
- PROMOTIONAL CREDITS
5.1 These Company Promotional Credit Terms and Conditions (these “Terms”) are an Agreement between Customer and Company and govern Customer use of any Company promotional credits (“Promotional Credit(s)”). Customer must have a valid Company account to redeem Promotional Credits.
5.2 Promotional Credit can be used only for fees and charges incurred on or after the date Customer apply the applicable Promotional Credit code to Customer Company account and only for the specific Services designated Company (collectively, “Eligible Services”).
5.3 Promotional Credit will not be applied to Customer Company account until Customer redeems Customer Promotional Credit through the Company directly. Each Promotional Credit can only be redeemed once and only on one Company account. Customer Company account will be billed for all fees and charges for use of any Eligible Services in excess of the amount of available Promotional Credit.
5.4 Customer may not sell, license, rent, or otherwise transfer Promotional Credit. Promotional Credit may be applied only to Customer own Company account. Promotional Credit has no intrinsic value, is not redeemable for cash, has no cash value, is nonrefundable, and serves merely as a means to recognize and provide an incentive to use our Services. Promotional Credit may not be purchased for cash, and we and our affiliates do not sell Promotional Credit.
5.5 Promotional Credit is void in the event of fraud, misuse, or violation of any terms of the Agreement or of these Terms, or if sold for cash or other consideration. In addition to any other legal relief available to us, Customer will reimburse us for the amount of any Promotional Credit Customer use in violation of these Terms.
5.6 By accepting Promotional Credit, Customer represents and warrant that Customer receipt and use of Promotional Credit is not prohibited or inconsistent with any applicable laws, regulations, or binding orders (including applicable ethics or procurement rules) and will not create a conflict of interest for Company .
5.7 Unless authorized by us, Promotional Credit may not be used in conjunction with any other promotional or incentive offer from us or our affiliates.
5.8 Promotional Credit will not be applied against any sales, use, gross receipts, or similar transaction based taxes that may be applicable to Customer.
5.9 Customer may not issue any press release or make any other public disclosure regarding Promotional Credit without our prior written consent. In addition, Customer agrees not to misrepresent or embellish the relationship between us and the Customer. For example, Customer agrees not to imply that we support, sponsor, or endorse Customer unless Customer has our prior written permission to do so.
5.10 Promotional Credit is valid for a limited time only and expires on the date indicated when Customer receives the applicable Promotional Credit code (or such other date designated by us or in these Terms). Failure to use Promotional Credit before its expiration date will result in its forfeiture. We reserve the right to cancel Promotional Credit at any time. No refunds will be granted for any expired or cancelled Promotional Credit.
5.11 Customer agrees to maintain in strict confidence any data or information relating to the Service Offerings that Customer discovers, derive, develop, or otherwise learn about through Customer use of the Service Offerings. This includes, but is not limited to, data or information relating to the Service Offering’s security and any suggested improvements to the Service Offerings.
5.12 We may modify these Terms at any time by posting a revised version on the Company Site or by sending Customer an email using the email address provided in Customer application for Promotional Credit. The modified Terms will become effective upon posting or, if we notify the Customer by email, as stated in the email message. By receiving or using Promotional Credit after the effective date of any modification to these Terms, Customer agrees to be bound by the modified Terms. We last modified these Terms on the date listed at the top of this page.
- TERM AND TERMINATION
6.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
6.2 In addition to any other remedies it may have, either party may also terminate this 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 this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
- 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. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND 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.
Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply 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, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. 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 Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
- LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO 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; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This 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 this Agreement, and that 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 this 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 this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this 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 facsimile or 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. This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.