Master Services Agreement

THIS MASTER SERVICES AGREEMENT (“MSA“) entered into between Engin8, Inc. (“Engin8“) and the individual or entity identified as the “Customer” in the applicable Order (“Customer“). This Agreement is effective when Customer signs the applicable Order, or otherwise agrees to it (“Effective Date“). If you are accepting on behalf of Customer, you represent and warrant that you: (i) have full legal authority to bind Customer; and (ii) have read and understand the Agreement and agree to it on behalf of Customer.

Each Customer must read, agree with and accept all of the terms and conditions contained in this MSA, including the URL Terms, before using the Services. The URL Terms are incorporated into this MSA by reference and, together with this MSA and any applicable Orders and Change Orders, form the “Agreement.”

1. Incorporation of Terms and Relationship to This MSA
   1. Incorporation by Reference. Engin8’s Terms and Conditions posted at https://Engin8.io/terms-and-conditions/ (or any successor URL) (the “Terms“), as of the Effective Date of the applicable Order, are hereby incorporated into this MSA in their entirety by this reference. In the event of any conflict or inconsistency between the Terms and this MSA, the following order of precedence applies: (1) the most recent applicable Change Order; (2) the applicable Order; (3) any applicable Addendum; (4) this MSA; and (5) the Terms.
   2. Full Application of Terms. All representations, warranties, covenants, disclaimers, limitations of liability, indemnification obligations, acceptable use restrictions, intellectual property provisions, confidentiality obligations, data protection provisions, and dispute resolution procedures set out in the Terms apply in full force and effect to this MSA and to all Services provided hereunder, as if set out in full in this MSA. For the avoidance of doubt, references to “User,” “you,” or “your” in the Terms mean and refer to Customer under this MSA.
   3. Additional URL Terms. Without limiting Section 1.2, the URL Terms (as defined in Section 11) are incorporated into this MSA by reference and apply in full to all Services provided hereunder.
2. Term and Services
   1. Services; Orders. Subject to the Agreement, Engin8 will, during the Term, use commercially reasonable efforts to provide the Services specified in the applicable Order(s). Each order (as approved by Engin8 (each an “Order“)) is governed by and forms part of the Agreement.
   2. Addendums. The following addendums apply to the corresponding Services and are incorporated herein by reference:

      1. Amazon. The Amazon Full Service Addendum available here.
      2. Walmart Full Service. The Walmart Full Service Addendum available here.
      3. TikTok Services. The TikTok Services Addendum available here.
      4. Creative Services. The Creative Services Addendum available here.
      5. White-Labelled Services. The White Label Addendum available here.
      6. Staffing Facilitation Services. The Staffing Facilitation Addendum available here.
   3. Term of Agreement and Orders. This Agreement will commence on the Effective Date and remains in effect for so long as one or more Orders or Change Orders are active, unless earlier terminated (the “Term“). The term of each Order commences on the date specified in the Order and expires on the expiration date specified therein. Each Order will automatically renew for successive periods equal to the initial term unless either party provides written notice of non-renewal at least 60 days before the end of the then-current term. Any Customer request for changes to the quantity of Services must be submitted at least thirty (30) days before the end of the then-current Order term and documented via Change Order.
   4. Updates.

      1. Change Orders. Customer may request, and Engin8 may in its discretion provide, changes in the level of Services via written change order (a “Change Order“). Change Orders may require changes in applicable Fees, which will be specified therein.
      2. Changes to Agreement. The version of this MSA, the Terms, and any applicable Addendum in effect on the Effective Date of an Order will govern that Order for the duration of its then-current term. Engin8 may update its standard MSA, Terms, Addendums, and pricing from time to time, but no material update will apply to an existing Order during its then-current term without Customer’s written consent, except for changes required by applicable law, a third-party Marketplace, or reasonably necessary to address a material security risk. Updated terms may apply upon renewal of an Order.
   5. Account Access & Other Dependencies. Engin8’s performance of certain Services depends on Customer timely providing Engin8 with access to relevant input, data, feedback, and configuration assistance as well as promptly (and in any event, within forty-eight (48) hours of the Effective Date) providing and maintaining Engin8’s access to any applicable Customer account(s) (including any Marketplace account(s) or Branded Account(s), individually and collectively, the “Account“) as required by Engin8 in its sole and absolute discretion. Any dates or time periods relevant to Engin8’s performance of its obligations hereunder will be extended appropriately and equitably to reflect any delays caused by Customer’s failure to timely deliver any such input, data, feedback, materials or access (collectively, “Customer Input“). Engin8 may use Subcontractors and distribute certain Third-Party Services with Services. Engin8 will not be liable for delays or disruptions or any issues caused by Third Party Service unavailability or restrictions.
3. Fees and Payment Terms
   1. Fees. The details of all invoicing, billing cycles, payment timing, minimum commitments, and applicable fees for the Services (the “Fees“) will be specified in the applicable Order or Change Order or any other payment instructions provided by Engin8 from time to time. Fees are: (i) non-refundable and non-cancellable unless required by law; and (ii) exclusive of any and all taxes, withholdings and other levies and imposts applicable thereon (“Taxes“), and such Taxes will be invoiced together with the Fees, unless Customer is exempt from such Taxes. Unless otherwise specified in an Order, invoices are due and payable upon receipt. Payments made via wire transfer must include the bank information provided by Engin8. If Customer pays by credit card, debit card, or other non-invoiced form of payment, Customer will pay all Fees immediately at the end of the applicable fee accrual period or when otherwise charged by Engin8. Notwithstanding anything herein or otherwise, Customer is required to pay all applicable Fees without any requirement for Engin8 to provide a purchase order number on Engin8’s invoice.
   2. Payment Method. Acceptable payment methods and related terms will be specified in the applicable Order or Change Order. Customer agrees to comply with all payment method requirements, and authorizes Engin8 to charge Fees in accordance with such terms, including designated third-party payment processors.
   3. Failure of Payment & Suspension. Interest will accrue on overdue amounts at a rate of eighteen percent (18%) per annum, calculated daily. In the event of overdue payment or if Engin8 reasonably believes suspension is needed to protect the Services or Engin8, Engin8 may, in its discretion: (a) terminate the Agreement immediately upon notice; and/or (b) suspend its obligations until such time as all amounts due are paid in full.
4. Use of Services
   1. Restrictions. Customer may only use the Services in accordance with the Agreement and any Documentation. Without limiting the Terms’ acceptable use restrictions, Customer will not, directly or indirectly:

      1. copy, modify or create derivative works or improvements of the Services;
      2. rent, lease, lend, sell, re-sell, White Label, sublicense, assign, distribute, publish, transfer or otherwise make available the Services to any person (subject to the White Label Addendum);
      3. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or any part thereof;
      4. bypass or breach any security measures used by the Services;
      5. input, upload, transmit or otherwise provide to or through the Services any information or materials that are unlawful or injurious, or contain, transmit or activate any virus, trojan horse, worm, backdoor, malware or other malicious content;
      6. transmit, or otherwise export the Services or underlying information or technology;
      7. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services;
      8. remove, delete, alter or obscure any Intellectual Property Rights notice from the Services or register or attempt to register any Intellectual Property rights in any Engin8 Intellectual Property;
      9. provide any usernames, passwords or other information which would permit access to the Services to any person who does not have authorized access from Engin8;
      10. use the Services other than in compliance with all applicable laws and regulations (including, but not limited to, any export restrictions or spam compliance laws, or any Marketplace policies, regulations, or other applicable requirements);
      11. interfere with or disrupt the integrity or performance of the Services or the data contained therein; or
      12. otherwise access or use the Services beyond the scope of the authorization expressly granted in the Agreement.
   2. Customer Systems. Customer is responsible for obtaining and maintaining Customer Systems and any other equipment and other services needed to use the Services including ensuring compatibility, security of such equipment, Accounts, passwords and files, and for all uses of Account(s) with or without Customer’s knowledge or consent.
   3. Support. Subject to payment of applicable Fees, Engin8 may provide technical support in accordance with Engin8’s then-current technical support services guidelines.
5. Proprietary Rights
   1. Rights Reserved. Without limiting any intellectual property provisions in the Terms, Engin8 is and will remain the sole and exclusive owner of, and retains all Intellectual Property Rights in, the Services and the Engin8 Marks, including without limitation any updates, modifications, customizations or derivative works. Except for the rights expressly granted in the Agreement, neither party grants to the other any Intellectual Property Rights, and all such rights are reserved.
   2. Feedback. Customer hereby grants (and will cause to be granted) to Engin8 a worldwide, royalty-free, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by or through Customer relating to the Services. Engin8 has no obligation to implement any such feedback.
6. Customer Data
   1. Ownership. As between Engin8 and Customer, Customer is and will remain the sole and exclusive owner of all Customer Data.
   2. Consent and License of Customer Data. Customer authorizes and consents to Engin8’s access, processing, and use of Customer Data, and hereby grants to Engin8 a non-exclusive, royalty free, world-wide right and license during the Term to access, copy, process and otherwise use Customer Data as may be required to provide and improve the Services, perform Engin8’s obligations under the Agreement or to create Anonymized Data. Engin8 will be the sole and exclusive owner of all Anonymized Data. For certainty, Engin8 has no responsibility for any Third-Party Service’s collection, use, storage, or disclosure of Customer Data.
7. Obligations
   1. Customer. Without limiting the obligations, representations, and warranties of Customer set out in the Terms (which apply in full pursuant to Section 1.2), Customer additionally represents, warrants and covenants to Engin8 that now and at all times during the Term: (a) Customer has the right, power, capacity and authority to enter into and perform its obligations under the Agreement and to grant the licenses, authorizations and permissions set forth in the Agreement, including in respect of the Account; (b) Customer has obtained all necessary consents relating to Customer Data prior to making any such data available under the Agreement; (c) Customer has obtained all necessary rights and licences and all necessary consents and notices to permit Customer’s use and receipt of the Services, including in respect of any Customer Inputs, Licensed Marketing Materials, or third party content and that Engin8’s use of any Customer Data for the purposes described in the Agreement does not and will not violate or infringe the rights of any person; and (d) all information provided by Customer to Engin8, and any product claim or marketing statement, is true, accurate, current, complete, and, where applicable, substantiated and complies with all applicable laws, as well as policies of any applicable Third-Party Service.
   2. Engin8. Engin8 represents, warrants and covenants to Customer that now and at all times during the Term Engin8 has the corporate power, capacity and authority to enter into the Agreement and will endeavour to perform the Services in material compliance with the Agreement and the applicable Order(s). Engin8 may provide Documentation for Customer’s use of the Services.
8. Termination and Suspension
   1. Termination for Cause. Either party may terminate the Agreement, in whole or in part (including any Order or Change Order) immediately upon written notice if the other party fails to cure a material breach within thirty (30) days (ten (10) days, in the case of non-payment) after written notice of such breach. This Agreement (or the applicable Order or part of the Services) will automatically and immediately terminate if Customer’s use of the Services is prohibited by any applicable Third-Party Service. Fraudulent or other unacceptable behaviour by Customer as determined by Engin8 in its sole discretion, may result in termination immediately upon notice.
   2. Effect of Termination. Upon termination or expiry of the Agreement: (a) all Orders and Change Orders will immediately terminate (except any Order or portion relating to an active reimbursement or account recovery claim, which survives solely to the extent necessary for Engin8 to complete such claim and collect all applicable Fees in connection therewith, and Customer will ensure that Engin8’s access to the applicable Account will be maintained for such purpose notwithstanding such termination or expiry); and (b) any provision that imposes an obligation after termination or expiry survives, including without limitation, the following Sections of this MSA: 3 – 6 (inclusive), 7.1, and 8 – 11 (inclusive). Engin8 will deliver to Customer a final statement of account and/or invoice for Fees accrued up to and including the date of termination or expiry, which Customer will promptly pay.
9. Disclaimers, Liability & Indemnity

   The Terms’ disclaimers, limitations of liability, and indemnification provisions apply in full pursuant to Section 1.2. Without limiting the foregoing:

   1. Customer. Customer will defend, indemnify, and save and hold harmless Engin8 and its directors, officers, and personnel from and against all third-party claims, demands, actions, causes of action, damage, loss, suits, proceedings, costs, liabilities, expenses and charges arising from, connected with, or relating to: (a) any Customer Inputs, or any other content or materials provided by or through Customer; (b) Customer’s use of the Services; and (c) any actual or alleged negligence, willful misconduct or breach of the Agreement (including, without limitation, under or in respect of Section 7.1 of the MSA), by Customer or any other person for whom Customer is under the Agreement or in law responsible. Customer will assist and co-operate as fully as reasonably required by Engin8 in the defence of all third-party claims and third-party proceedings.
10. General
    1. Entire Agreement. This Agreement, which includes each Order and Change Order, constitutes the final, complete and exclusive agreement between the parties with respect to its subject matter, and supersedes all prior or contemporaneous agreements. Interpretation. Headings are for convenience only. Any rules of construction relating to interpretation against the drafter of an agreement will not apply to the Agreement. The word “including” (or includes) and words to the same or similar effect will be interpreted to mean “including without limitation.” Words importing the singular number only include the plural and vice versa. Words importing either gender include both genders. Except as expressly set forth in the Agreement, the parties’ respective rights and remedies under the Agreement are cumulative and not exclusive of any other rights or remedies to which the parties may be lawfully entitled.
    2. Assignment and Enurement. Customer may not assign the Agreement without Engin8’s prior written consent, in its sole discretion. Engin8 may assign all or any portion of its rights and interests under the Agreement in its discretion without consent of Customer. The provisions of the Agreement will enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
    3. Publicity. Subject to Customer’s express prior written consent, Engin8 may reference Customer in its advertising and promotional activities and materials and may list Customer in any listing or directory of Engin8 customers. Upon request by Engin8, Customer may, but will have no obligation to, provide Engin8 with Customer’s trademark or logos for use in such promotional materials, lists and directories.
    4. Waiver and Amendment. Except as expressly provided herein, no modification, amendment or waiver of any provision of the Agreement will be effective unless in writing and signed by the parties hereto. No failure or delay by a party in exercising any right, power, or remedy under the Agreement will operate as a waiver of any such right, power or remedy.
    5. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of law principles. Any disputes arising under the Agreement will be resolved through binding arbitration administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules, with the seat of arbitration in New York, New York.
    6. Force Majeure. Notwithstanding any other provision of the Agreement, Engin8 will not be liable to Customer for any delay in performing or failure to perform any of its obligations under the Agreement to the extent performance is delayed or prevented due to any cause or causes that are beyond Engin8’s reasonable control. Any delay or failure of this kind will not be deemed to be a breach of the Agreement by Engin8, and the time for Engin8’s performance of the affected obligation will be extended by a period that is reasonable in the circumstances.
    7. Notices. Engin8 may deliver Orders, invoices and other notices to Customer by email, facsimile, or delivery to the addresses on record in Engin8’s Customer file. Customer will give all notices to Engin8 under the Agreement in writing delivered by email, to legal@engin8.io as may be updated from time to time with notice.
    8. Currency. All monetary amounts under the Agreement are in the currency of the United States, except where expressly provided otherwise.
    9. Independent Contractors. The parties are independent contractors. Neither party will be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose and neither party will have any right, power or authority to create any obligation or responsibility on behalf of the other.
    10. Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
    11. Counterparts. This Agreement may be executed electronically and in two or more counterparts, all of which, taken together, will be regarded as one and the same instrument.
11. Definitions

    Unless otherwise defined herein, capitalized terms have the meanings set out below. Terms defined in the Terms and not defined below have the same meaning in this MSA.

    1. “Addendum Effective Date” means, with respect to any Addendum, the effective date specified in the applicable Order or Change Order referencing such Addendum, or if no such date is specified, the date on which Engin8 first provides the Services covered by such Addendum.
    2. “Anonymized Data” means information, data and other content that is derived by or through the Services including, inter alia, from processing Customer Data and is sufficiently different from such Customer Data that it cannot be reverse-engineered or otherwise used to identify the Customer or identify an individual. Anonymized Data includes, inter alia, analytics, insights, reports, benchmarks, and derivative works created by or through Engin8 or the Services from Customer Data.
    3. “Business Days” means any day other than Saturday, Sunday, or a day that is a federal statutory holiday in the State of New York.
    4. “Confidential Information” means information that is not generally known to the public or that otherwise constitutes a trade secret under applicable law, including without limitation, technical information, know-how, technology, software applications and code, prototypes, ideas, inventions, methods, improvements, data, files, information relating to customer identities and other customer information; provided that, Confidential Information does not include any of the foregoing information that Receiving Party can demonstrate: (i) has entered into the public domain through no wrongful act or breach of any obligation of confidentiality by the Receiving Party; (ii) was in the lawful knowledge and possession of, or was independently developed by, the Receiving Party prior to the time it was disclosed to, or learned by, the Receiving Party hereunder as evidenced by written records; (iii) was rightfully received by Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (iv) was approved in writing for release by the Disclosing Party. Confidential Information includes such information that was disclosed by the Disclosing Party to the Receiving Party prior to the Effective Date.
    5. “Customer Data” means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly, from Customer by or through the Services, including without limitation any Personal Information, as applicable.
    6. “Customer Systems” means Customer’s Account together with Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), networks and internet connectivity.
    7. “Disclosing Party” means the party who discloses or otherwise divulges Confidential Information to the other party.
    8. “Documentation” means the Engin8 documentation (as may be updated from time to time) in the form generally made available by Engin8 to Customers for use with the Services.
    9. “Engin8 Marks” means Engin8, Engin8 Inc., and related logos and marks of Engin8.
    10. “Engin8 Systems” means the information technology infrastructure used by or on behalf of Engin8 in performing the Services, including all computers, software, hardware, databases, electronic systems and networks.
    11. “Intellectual Property Rights” means any and all right, title and interest in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, trade names, rights in trade dress and packaging, moral rights, rights of publicity and similar rights of any type, continuations, or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory, or judicial authority.
    12. “Marketplace” means any third party e-commerce or other applicable social media provider’s platform or related programs and services and such Marketplace’s related application programming interfaces, websites, or other associated products, programs, or services.
    13. “Personal Information” means information about an identifiable individual within the meaning of applicable law.
    14. “Receiving Party” means the party who receives or otherwise obtains Confidential Information from the Disclosing Party or from the Disclosing Party’s employees, agents, representatives, consultants, customers, contractors or suppliers.
    15. “Services” means all services provided by Engin8 to or for the benefit of any Customer under or pursuant to the Agreement or any Order, including any services provided under or pursuant to an Addendum, and any part thereof.
    16. “Subcontractor” means any third party, such as independent contractors, affiliates, service providers, licensees and agents, that Engin8 engages to perform any part of the Services.
    17. “Third Party Services” means third party products or services, which may include, without limitation, the services of any independent contractor that is provided to a Customer, open-source components, third-party payment processors, or any other third party product or service including without limitation any platforms, products, or services provided or made available by or through any Marketplace.
    18. “URL Terms” means, collectively, the Terms, any data processing agreement, any Documentation (as applicable), and any technical support service guidelines, each as made available to Customer by Engin8 from time to time, together with each of the Amazon Full Service Addendum, Walmart Full Service Addendum, TikTok Services Addendum, Creative Services Addendum, White Label Addendum, and the Staffing Services Addendum (collectively, the “Addendums” and each, an “Addendum“), in each case, as then in effect for, or applicable to, the Services.
    19. “White Label” means the presentation, marketing, distribution, or resale of Permitted WL Services by Customer under Customer’s own brand, trade name, trademarks, logos, or other identifying indicia, such that the underlying origin of the Permitted WL Services from Engin8 is not disclosed to End Users, in accordance with the terms and conditions of the White Label Addendum.