Software as a Service Agreement (SSA)
Effective Date: April 30, 2026
Software as a Service AGREEMENT (SSA) Version m2.0
This Software as a Service Agreement, together with its exhibits, schedules, attachments, and appendices (this “SSA” or “Agreement”), is entered into as of the Effective Date by and between Maestra.io LLC, a Delaware limited liability company (“Provider”), and the legal entity identified as the customer in the Engagement Letter (“Customer”). The “Effective Date” means the date on which the Engagement Letter has been executed by both Provider and Customer.
RECITALS
A. Provider provides access to its software-as-a-service offerings to its customers.
B. Customer desires to access certain software-as-a-service offerings described herein, and Provider desires to provide Customer access to such offerings, subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1: DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms have the meanings set forth below:
"Access Credentials" means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual's identity and authorization to access and use the Services.
"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Affiliate” means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise/ownership of more than 50% of the voting securities of a Person.
"Applicable Communications Law" means all Laws governing electronic communications, telemarketing, data privacy, and consumer protection applicable to Customer's use of the Services, including (a) the Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227) and all implementing regulations adopted by the Federal Communications Commission (collectively, the "TCPA"); (b) the CAN-SPAM Act of 2003 (15 U.S.C. §§ 7701-7713) and all implementing regulations (collectively, "CAN-SPAM"); (c) the Telemarketing Sales Rule (16 C.F.R. Part 310) (the "TSR"); (d) the Communications Act of 1934, as amended (47 U.S.C. § 151 et seq.); (e) the Federal Trade Commission Act (15 U.S.C. §§ 41-58); (f) all state "mini-TCPA" statutes and consumer protection laws; (g) the CTIA Messaging Principles and Best Practices; (h) all applicable data protection and privacy Laws, including the California Consumer Privacy Act ("CCPA"), as amended by the California Privacy Rights Act ("CPRA"), and any other applicable state privacy laws; and (i) all carrier, aggregator, and wireless industry standards and requirements applicable to SMS, MMS, email, and other electronic messaging.
“Anonymized Data” means Customer Data that has been processed, aggregated, or otherwise transformed by Provider such that: (a) it cannot reasonably be used to identify, relate to, or be linked to Customer, any Authorized User, any End Customer, or any other identifiable natural person; (b) the transformation is irreversible using any reasonably available means; and (c) it does not constitute "personal information," "personal data," or any equivalent term under applicable Law. Anonymized Data constitutes Resultant Data, is owned exclusively by Provider, is not Customer Data, and is not Confidential Information of Customer.
"Authorized Users" means Customer's employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement, and (b) for whom access to the Services has been purchased hereunder.
"Confidential Information" has the meaning set forth in Section 9.1.
"Consent Records" means documented evidence of Prior Express Consent or Prior Express Written Consent obtained by Customer from End Customers, including the date, time, manner, and content of the consent disclosure, the telephone number or email address for which consent was obtained, and the identity of the person providing consent.
"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 or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data, or content by or through the Services. For the avoidance of doubt, Customer Data includes End Customer Data but does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
"Customer Failure" has the meaning set forth in Section 4.2.
"Customer Systems" means Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
"Deposit" has the meaning set forth in Section 2.8.
"Disclosing Party" has the meaning set forth in Section 9.1.
"Documentation" means any manuals, instructions, or other documents or materials that Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
"End Customer" means any Person who is a recipient of Customer's electronic communications, including marketing communications, sent through the Services.
"End Customer Data" means information, data, and other content, in any form or medium, relating to an End Customer that is collected, transmitted, or otherwise processed by or on behalf of Customer through the Services. End Customer Data may include End Customer PII but excludes Resultant Data.
"Engagement Letter" means the engagement letter or order form executed between Provider and Customer setting forth the specific Services, Fees, and other commercial terms applicable to Customer's subscription.
"Fees" has the meaning set forth in Section 8.1.
"Force Majeure Event" has the meaning set forth in Section 16.9(a).
"Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network, or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement. Harmful Code does not include any Provider Disabling Device.
"Indemnitee" has the meaning set forth in Section 12.3.
"Indemnitor" has the meaning set forth in Section 12.3.
"Initial Term" has the meaning set forth in Section 15.1.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
"Losses" means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
"National Do-Not-Call Registry" or "NDNCR" means the national do-not-call registry maintained by the Federal Trade Commission pursuant to 47 C.F.R. § 64.1200.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
"PII" or "Personal Information" has the meaning set forth in Section 7.1.
"Prior Express Consent" means oral or written consent from a called party to receive non-telemarketing calls or text messages to their telephone number, obtained prior to initiating such communications, as required under the TCPA and FCC regulations.
"Prior Express Written Consent" means an agreement, in writing, bearing the signature of the person called, that clearly authorizes the caller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and includes the telephone number to which the signatory authorizes such messages to be delivered, as required under applicable laws and regulations (including but not limited to 47 C.F.R. § 64.1200(f)(9)).
"Process" or "Processing" means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy.
"Provider" has the meaning set forth in the preamble.
"Provider Disabling Device" means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Provider or its designee to disable Customer's or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.
"Provider Indemnitee" has the meaning set forth in Section 12.2.
"Provider Materials" means the Services, Documentation, and Provider Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the Services, but do not include Customer Data.
"Provider Personnel" means all individuals involved in the performance of Services as employees, agents, or independent contractors of Provider or any Subcontractor.
"Provider Systems" means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Provider or through the use of third-party services.
"Receiving Party" has the meaning set forth in Section 9.1.
"Renewal Term" has the meaning set forth in Section 15.2.
"Representatives" means, with respect to a party, that party's employees, officers, directors, agents, and legal advisors.
"Resultant Data" means data and information related to Customer's use of the Services that is used by Provider in an aggregate and anonymized manner, such that it does not identify Customer or any individual, including to: (a) compile statistical and performance information related to the provision, operation, and improvement of the Services; (b) train, develop, improve, and refine Provider's artificial intelligence, machine learning, and other algorithmic models, technologies, and products; (c) generate benchmarks, analytics, and industry insights; and (d) develop, enhance, and commercialize new and existing products, services, and features. For the avoidance of doubt, Resultant Data is not Customer Data and is not Confidential Information of Customer.
"Service Level Agreement" or "SLA" has the meaning set forth in Section 5.1.
"Services" means the software-as-a-service offering described in Exhibit A and any applicable Engagement Letter.
"SMS Services Deposit" has the meaning set forth in Section 2.9.
"Subcontractor" has the meaning set forth in Section 2.6.
"Term" has the meaning set forth in Section 15.2.
"Third-Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Provider.
"Trial Period" has the meaning set forth in Section 2.8.
ARTICLE 2: SERVICES
2.1 Access and Use. Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 16.8) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal business use. Provider shall provide to Customer the Access Credentials within a reasonable time following the Effective Date.
2.2 Documentation License. Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 16.8) license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services.
2.3 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
(a) Provider has and will retain sole control over the operation, provision, maintenance, and management of the Provider Materials; and
(b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any:
(i) information, instructions, or materials provided by any of them to the Services or Provider;
(ii) results obtained from any use of the Services or Provider Materials; and
(iii) conclusions, decisions, or actions based on such use.
2.4 Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to the Services, Provider Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All rights, title, and interest in and to the Services, the Provider Materials, and the Third-Party Materials are and will remain with Provider and the respective rights holders in the Third-Party Materials.
2.5 Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to:
(a) maintain or enhance:
(i) the quality or delivery of Provider's services to its customers;
(ii) the competitive strength of or market for Provider's services; or
(iii) the Services' cost efficiency or performance; or
(b) comply with applicable Law.
Provider shall use commercially reasonable efforts to provide Customer with advance notice of any material changes that would adversely affect Customer's use of the Services.
2.6 Subcontractors. Provider may from time to time, in its discretion, engage third parties to perform Services (each, a "Subcontractor").
2.7 Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer's, any Authorized User's, or any other Person's access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if:
(a) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so; or
(b) Provider believes, in its good faith and reasonable discretion, that:
(i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement;
(ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services;
(iii) Customer's use of the Services violates or is reasonably likely to violate any Applicable Communications Law;
(iv) Customer’s use of the Services violates the Acceptable Use Policy (Exhibit D to this Agreement); or
(v) this Agreement expires or is terminated;
This Section 2.7 does not limit any of Provider's other rights or remedies, whether at law, in equity, or under this Agreement.
2.8 Trial Period. Upon Provider's receipt of the Engagement Letter executed between Maestra and Customer (the “Engagement Letter“), Customer shall have a limited right to access and use the Services without the functionality to send out electronic messages for up to three (3) months from the Effective Date (the "Trial Period", also referred to in the Engagement Letter as the “Free Integration Period”). Customer may opt out from subscribing to the Services by providing written notice to Provider during the Trial Period, and Provider shall refund the Deposit within thirty (30) days from the date of Customer's written notice. The Trial Period shall automatically expire on the earlier of
(a) three months after the Effective Date, or
(b) the date on which Customer requests in writing for Provider to enable full functionality of the Services.
2.9 SMS Services Deposit. In addition to the Deposit referenced in Section 2.8, Provider may require a separate refundable deposit as a condition for activation or continued use of SMS, MMS, or other messaging services (the "SMS Services Deposit"). Provider may apply such deposit toward any unpaid messaging charges. Customer shall promptly replenish the SMS Services Deposit upon notice from Provider. The amount of the SMS Services Deposit may be adjusted if the cost of consumed messaging services differs significantly from the existing SMS Services Deposit amount required. Any unused balance shall be refunded or applied to the final invoice upon termination.
ARTICLE 3: USE RESTRICTIONS; COMPLIANCE OBLIGATIONS
3.1 Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. Without limiting the generality of the foregoing, Customer shall not, and shall not permit any Person to:
(a) copy, modify, or create derivative works or improvements of the Services or Provider Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, Software as a Service, cloud, or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then-valid Access Credentials;
(e) input, upload, transmit, or otherwise provide to or through the Services or Provider Systems any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Provider Systems, or Provider's provision of services to any third party, in whole or in part;
(g) remove, delete, alter, or obscure any trademarks, specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof;
(h) access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Provider customer), or that violates any applicable Law;
(i) access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision, or use of a competing software service or product, or any other purpose that is to Provider's detriment or commercial disadvantage; or
(j) otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under this Section 3.1.
3.2 Customer Compliance Obligations for Electronic Communications. Customer acknowledges and agrees that the Services may be used to send SMS text messages, MMS messages, emails, push notifications, and other electronic communications to End Customers. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT ALL SUCH COMMUNICATIONS COMPLY WITH ALL APPLICABLE COMMUNICATIONS LAWS, including the TCPA, CAN-SPAM, the TSR, all state laws, and all applicable industry standards and carrier requirements. Customer's compliance obligations are not diminished, delegated, or otherwise reduced by any advice, guidance, configuration, set-up, implementation, or other assistance provided by Provider, its Customer Success Manager, or any Provider Personnel. Without limiting the generality of the foregoing, Customer represents, warrants, covenants, and agrees as follows:
(a) Consent Requirements. Customer shall obtain and maintain, prior to sending any electronic communication through the Services:
(i) For telemarketing calls or text messages made using an automatic telephone dialing system or an artificial or prerecorded voice to cellular telephone numbers or residential telephone lines: Prior Express Written Consent from each End Customer, obtained in a manner that complies with 47 C.F.R. § 64.1200(f)(9), the E-SIGN Act (15 U.S.C. § 7001 et seq.), and applicable state laws governing electronic signatures and contracts;
(ii) For non-telemarketing calls or text messages: Prior Express Consent (oral or written) from each End Customer;
(iii) For commercial email messages: compliance with CAN-SPAM's opt-out requirements and all required disclosures;
(b) One-to-One Consent. In accordance with recent FCC rulings, Customer shall obtain Prior Express Written Consent from each End Customer on a one-to-one basis (i.e., consent authorizing communications from one identified seller at a time), and consent must be logically and topically associated with the interaction that prompted the consent.
(c) Consent Documentation. Customer shall create and maintain complete and accurate Consent Records for each End Customer for at least five (5) years following the last communication to such End Customer, or such longer period as required by applicable Law. Customer shall make such Consent Records available to Provider upon request within forty-eight (48) hours.
(d) Do-Not-Call Compliance. Customer shall:
(i) Maintain an internal do-not-call list of End Customers who have requested not to receive calls or messages from Customer, and honor such requests within twenty-four (24) hours of receipt (or such shorter period as required by applicable Law);
(ii) Scrub all calling and messaging lists against the National Do-Not-Call Registry at least every thirty-one (31) days prior to initiating telemarketing communications;
(iii) Establish and implement written procedures to comply with do-not-call requirements and train all personnel in such procedures;
(e) Revocation of Consent. Customer shall honor any End Customer's revocation of consent made by any reasonable method, including by replying "STOP," "QUIT," "END," "REVOKE," "OPT OUT," "CANCEL," "UNSUBSCRIBE," or similar language to a text message, by responding in the language in which the communication was sent, or by any other reasonable method (including email, voicemail, telephone, or website). Customer shall process such revocation within ten (10) business days of receipt, consistent with applicable FCC requirements (47 C.F.R. § 64.1200), with real-time processing being the preferred standard;
(f) Required Disclosures. Customer shall include all disclosures required by Applicable Communications Laws in each electronic communication, including:
(i) For text messages: clear identification of Customer as the sender and instructions on how to opt out (e.g., "Reply STOP to unsubscribe");
(ii) For commercial emails: a valid physical postal address, a clear and conspicuous identification that the message is an advertisement (where required), and a functioning opt-out mechanism that remains operational for at least thirty (30) days after the message is sent;
(g) Prohibited Content. Customer shall not use the Services to send any electronic communication that:
(i) Contains false or misleading header information or deceptive subject lines;
(ii) Spoofs or misrepresents the sender's identity or telephone number;
(iii) Promotes illegal activities or violates any Law;
(iv) Violates Provider's Acceptable Use Policy or SHAFT Policy; or
(v) Is sent to any telephone number or email address for which Customer does not have appropriate consent.
(h) Carrier Requirements. Customer shall comply with all requirements and policies of wireless carriers, aggregators, and other telecommunications providers applicable to SMS, MMS, and other messaging, including message throughput limits, 10DLC registration requirements, short code approval processes, and content restrictions. Customer is solely responsible for completing and maintaining all required carrier vetting, registration, brand verification, and approval processes, including those imposed by AT&T, Verizon, T-Mobile, and other wireless carriers in connection with A2P 10DLC, toll-free, and short code messaging. Provider may, but is not obligated to, facilitate the registration process, and any such facilitation does not relieve Customer of its responsibility to ensure ongoing compliance with carrier requirements.
(i) Testing. Customer is responsible for testing system output prior to initiating communications using Provider’s Services, and after any change to system configuration or processes, to ensure applicable compliance obligations are met. Customer acknowledges that Provider, its employees, and its technology solutions do not provide legal or compliance advice or testing and are not legal or compliance specialists. Customer remains responsible for ensuring that the output of system configurations is compliant with all applicable legal and regulatory requirements.
(j) AI-Generated Content and AI-Driven Communications. Customer acknowledges that the Services may include features that use artificial intelligence to assist with the generation, modification, optimization, or delivery of electronic communications, and that Customer may also use the Services in conjunction with third-party AI systems. Customer is solely responsible for: (i) reviewing all AI-generated or AI-modified content prior to dispatch and ensuring such content complies with all Applicable Communications Laws and any Laws specifically governing the disclosure, labeling, or use of AI-generated content (including, without limitation, applicable state laws governing AI-generated marketing content, deepfakes, synthetic media, and chatbot disclosures); (ii) providing all consumer-facing disclosures required by applicable Law when AI-generated content is included in communications sent through the Services; and (iii) ensuring that any use of the Services to transmit, route, integrate with, or otherwise enable third-party voice, AI-driven calling, or AI-driven messaging systems complies with all Applicable Communications Laws, including the TCPA’s heightened requirements for artificial or prerecorded voice messages and any FCC rules governing AI-generated voice content. Provider does not monitor or verify the content of communications generated, modified, or transmitted through the Services for AI-disclosure compliance, and Provider’s AI-assisted features are provided as configuration tools at Customer’s direction. Customer’s compliance obligations under this Section 3.2(j) are independent of, and not diminished by, Provider’s provision of any AI-related features or assistance.
3.3 Customer Acknowledgments Regarding Compliance. Customer acknowledges and agrees that:
(a) Provider Does Not Verify Consent. Provider does not verify that Customer has obtained appropriate consent from End Customers prior to sending communications through the Services, and Customer bears sole responsibility for obtaining and documenting such consent. This is true even when Customer uses Provider personnel or technology tools to assist in system configuration;
(b) Significant Penalties for Non-Compliance. Violations of the TCPA may result in statutory damages for each violation (i.e., per call or text message), and TCPA class actions regularly result in settlements and judgments of millions of dollars. Violations of CAN-SPAM may result in penalties for each violation. Customer assumes all risk and liability arising from Customer's failure to comply with Applicable Communications Laws;
(c) Third-Party Lists. The use of purchased, rented, or scraped contact lists for sending electronic communications through the Services is prohibited unless Customer can demonstrate that valid Prior Express Written Consent (where required) was obtained directly from each individual on such list specifically authorizing communications from Customer, and Customer has documentation satisfying the requirements of 47 C.F.R. § 64.1200(f)(9)
(d) Legal and Compliance Advice. Provider and its personnel may assist with campaign setup and configuration and provide substantial technical assistance to Customer. Notwithstanding such assistance:
(i) Provider and Provider Personnel do not provide legal, regulatory, or compliance advice;
(ii) any assistance, guidance, recommendations, configurations, or setup performed by Provider or Provider Personnel on Customer's behalf is performed at Customer's direction and does not relieve Customer of its compliance obligations; and
(iii) Customer is solely responsible for reviewing and approving all campaigns, automations, communications, and configurations for compliance with Applicable Communications Laws both before initial deployment and after any changes are made to existing campaigns, automations, communications, and configurations.
(iv) Customer acknowledges that Provider and Provider Personnel may assist with campaign setup and configuration that could result in non-compliant output. Legal and regulatory compliance remain Customer’s Sole Responsibility.
3.4 Subscriber List Certification & Messaging Compliance. Customer acknowledges and agrees that the Subscriber List Certification & Messaging Compliance terms set forth in Exhibit D (as may be updated by Provider from time to time in accordance with Section 16.11) are incorporated into and form a part of this Agreement. Customer shall comply with all obligations set forth in Exhibit D, including the certifications, representations, warranties, recordkeeping requirements, and indemnification obligations therein. In the event of any conflict between Exhibit D and this Agreement, Exhibit D shall control solely with respect to Subscriber Lists (as defined in Exhibit D) and messaging compliance matters.
3.5 Data Use as Condition of Service. Customer acknowledges and agrees that Provider's right to create and use Resultant Data and Anonymized Data as set forth in this Agreement, including for AI and machine learning model training, is a material consideration for Provider's willingness to enter into this Agreement and provide the Services at the Fees set forth herein. Customer shall not, during or after the Term, seek to restrict, limit, or condition Provider's rights with respect to Resultant Data or Anonymized Data.
3.6 Acceptable Use Policy. Customer’s use of the Services is also subject to Provider’s Acceptable Use Policy available at https://maestra.io/documents/acceptable-use-policy/, as may be updated by Provider from time to time, which is incorporated into this Agreement by reference. In the event of a conflict between the Acceptable Use Policy and this Agreement, this Agreement shall prevail.
ARTICLE 4: CUSTOMER RESPONSIBILITIES
4.1 Customer Systems and Cooperation. Customer shall at all times during the Term:
(a) set up, maintain, and operate in good repair all Customer Systems on or through which the Services are accessed or used;
(b) provide Provider Personnel with such access to Customer's premises and Customer Systems as is reasonably necessary for Provider to perform the Services in accordance with the SLA; and
(c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement.
4.2 Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement (each, a "Customer Failure").
4.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.1 or any violation of Applicable Communications Laws in connection with Customer's use of the Services, Customer shall, and shall cause its Authorized Users to, immediately:
(a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and
(b) notify Provider of any such actual or threatened activity.
ARTICLE 5: SERVICE LEVELS
5.1 Service Level Agreement. Provider will use commercially reasonable efforts, consistent with industry best practices, to maintain the quality and availability of the Services for Customer. This Agreement does not include any guaranteed uptime or strict service level commitments by default. If Customer requires specific service level guarantees (such as a defined uptime percentage or response time commitment), the parties may enter into a separate written Service Level Agreement (the "SLA") for an additional fee or under a separate order form. In the absence of such a separately signed SLA, Customer acknowledges that the Services are provided on an "as is" and "as available" basis, and while Provider strives to deliver a reliable and continuously accessible Service, no minimum uptime or uninterrupted availability is guaranteed.
ARTICLE 6: DATA BACKUP
6.1 No Data Backup Guarantee. Provider will use commercially reasonable efforts to store and backup Customer Data; provided, however, that Customer acknowledges and agrees that (a) this does not replace the need for Customer to maintain regular data backups or redundant data archives, and (b) Provider shall have no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Customer Data except as expressly set forth in any separately executed SLA.
ARTICLE 7: SECURITY; DATA PROTECTION
7.1 Data Protection. Provider acknowledges that it may have access to certain of Customer's computer and communications systems and networks for the purposes set forth in this Agreement. If any Customer Data is made available or accessible to Provider, its employees, agents, or contractors, pertaining to Customer's business or financial affairs, or to Customer's projects, transactions, clients, or customers, Provider will not store, copy, analyze, monitor, or otherwise use that Customer Data except (a) for the purposes set forth in this Agreement, including the creation, use, and retention of Resultant Data and Anonymized Data as provided in Section 10.3, and (b) as otherwise expressly permitted hereunder. To the extent Customer Data contains information that alone or combined with other information may be used to identify an individual, including any End Customer (collectively, "PII" or "Personal Information"), Provider shall comply with all applicable privacy and data protection Laws regarding such PII.
7.2 Provider Security Obligations. Provider shall implement and maintain an information security program that includes appropriate administrative, technical, and physical safeguards designed to: (a) ensure the security and confidentiality of Customer Data; (b) protect against any anticipated threats or hazards to the security or integrity of Customer Data; and (c) protect against unauthorized access to or use of Customer Data.
7.3 Customer Responsibilities. Customer has and will retain sole responsibility for:
(a) all Customer Data and PII, including its content and use;
(b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services;
(c) Customer Systems;
(d) the security and use of Customer and its Authorized Users' Access Credentials; and
(e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
7.4 Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures, and other safeguards necessary to:
(a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and
(b) control the content and use of Customer Data or End Customer Data, including the uploading or other provision of Customer Data or End Customer Data, as applicable, for Processing by the Services.
ARTICLE 8: FEES AND PAYMENT
8.1 Fees. Customer shall pay Provider the fees set forth in Exhibit A and/or the Engagement Letter (the "Fees") in accordance with this Article 8.
8.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income.
8.3 Payment. Customer shall pay all Fees within fourteen (14) days after the date of Provider's invoice. Customer shall make all payments hereunder in US dollars by wire transfer or credit card. Customer shall make payments to the address or account specified in the invoice.
8.4 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
(a) Provider may charge interest on the past due amount at the rate of one and one-half percent (1.5%) per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and
(c) if such failure continues for fourteen (14) days following written notice thereof, Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
8.5 No Deductions or Setoffs. All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
8.6 Fee Changes. Separately from any changes in Fees due to the amount of data and customer records stored in the platform, Provider may also update Fees no more than once annually by providing written notice to Customer at least thirty (30) calendar days prior to the commencement of such changes, and Exhibit A will be deemed amended accordingly.
8.7 Additional Modules and Services. Provider may, at any time during the Term, offer additional modules or services ("Additional Modules"). Such Additional Modules may be added to the Services upon mutual written agreement of the parties and shall become effective as of the date specified in such agreement. Subject to agreement with Customer, Provider may render additional services, the scope and cost of which shall be specified in a corresponding invoice or order form.
ARTICLE 9: CONFIDENTIALITY
9.1 Confidential Information. In connection with this Agreement, each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to Section 9.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as "confidential."
9.2 Exclusions. Confidential Information does not include information that: (a) was publicly available at the time of disclosure or becomes publicly available thereafter through no breach of this Agreement by the Receiving Party; (b) was rightfully known to the Receiving Party without restriction on use or disclosure prior to disclosure under this Agreement; (c) was received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not under any obligation of confidentiality with respect to such information; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information. Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include Resultant Data or Anonymized Data, and Provider may collect, use, and retain Resultant Data and Anonymized Data for any lawful business purpose, including to develop, improve, and train Provider's products, services, and machine learning models.
9.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to compliance with Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who:
(i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement;
(ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 9; and
(iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9;
(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
(d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to cooperate with Disclosing Party to prevent further unauthorized use or disclosure; and
(e) ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 9.
Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 9 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
9.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
ARTICLE 10: INTELLECTUAL PROPERTY RIGHTS
10.1 Provider Materials. All right, title, and interest in and to the Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Provider Materials except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 3.1. All other rights in and to the Provider Materials are expressly reserved by Provider. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
10.2 Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 10.3.
10.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Provider, its Subcontractors, and the Provider Personnel to enforce this Agreement and exercise Provider's, its Subcontractors', and the Provider Personnel's rights and perform Provider's, its Subcontractors', and the Provider Personnel's obligations hereunder. Customer further hereby grants Provider a non-exclusive, irrevocable, worldwide, royalty-free, sublicensable right and license to:
(i) process Customer Data to create Anonymized Data and Resultant Data; and
(ii) use, retain, and exploit Anonymized Data and Resultant Data for any lawful purpose, including the purposes described in the definition of Resultant Data, without restriction and without obligation of accounting, attribution, or compensation to Customer.
The rights granted in this Section 10.3 shall survive any expiration or termination of this Agreement.
ARTICLE 11: REPRESENTATIONS AND WARRANTIES
11.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties (including by electronic means consistent with the E-SIGN Act and applicable state law), this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
11.2 Additional Provider Representations, Warranties, and Covenants. Provider represents, warrants, and covenants to Customer that Provider will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
11.3 Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Provider that:
(a) Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law;
(b) Customer has obtained (or will obtain prior to providing Customer Data to Provider) all necessary consents, authorizations, and legal bases from End Customers and other data subjects to permit Provider to Process Customer Data for all purposes set forth in this Agreement, including the creation of Anonymized Data and Resultant Data and the use of such data for AI model training and improvement;
(c) Customer's privacy policies, terms of service, and other disclosures to End Customers do not restrict or prohibit Provider's use of Anonymized Data or Resultant Data as contemplated by this Agreement;
(d) Customer owns, controls, or has obtained all necessary rights, licenses, and permissions with respect to any and all intellectual property, trademarks, service marks, trade names, logos, copyrighted content, and other proprietary materials (collectively, “Customer IP”) that Customer or its Authorized Users reference, include, display, or transmit in any messages, communications, or content sent through the Services, and Customer’s use of such Customer IP in connection with the Services does not and will not infringe, misappropriate, or otherwise violate the Intellectual Property Rights or other rights of any third party.
(e) Customer shall comply with all Applicable Communications Laws in its use of the Services, including obtaining and documenting all required consents from End Customers;
(f) Customer has the authority to provide Customer Data and End Customer Data to Provider for Processing in accordance with this Agreement, and such provision does not violate any privacy policies, terms of service, or contractual obligations to which Customer is bound;
(g) Customer shall use the Services only for lawful purposes and in accordance with this Agreement, the Documentation, Provider's Acceptable Use Policy, and Provider's SHAFT Policy; and
(h) Customer has reviewed the compliance requirements set forth in Section 3.2 and the compliance acknowledgments set forth in Section 3.3, and understands Customer's obligations with respect to the TCPA, CAN-SPAM, and other Applicable Communications Laws;
(i) Customer has independently evaluated, and will continue to independently evaluate, the legal and regulatory requirements applicable to its use of the Services, and Customer has not relied and will not rely upon Provider or any Provider Personnel for legal, regulatory, or compliance advice; and
11.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 11.1 AND 11.2, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED "AS IS." PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. PROVIDER MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES PROVIDED OR PROVIDER PERSONNEL WILL ENSURE OR RESULT IN CUSTOMER'S COMPLIANCE WITH ANY APPLICABLE COMMUNICATIONS LAW, CARRIER REQUIREMENT, OR OTHER LEGAL OR REGULATORY REQUIREMENT.
ARTICLE 12: INDEMNIFICATION
12.1 Provider Indemnification. Provider shall indemnify, defend, and hold harmless Customer from and against any and all Losses incurred by Customer resulting from any Action by a third party (other than an Affiliate of Customer) that Customer's or an Authorized User's use of the Services (excluding Customer Data and Third-Party Materials) in accordance with this Agreement infringes or misappropriates such third party's US patents, copyrights, or trade secrets. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
(a) Third-Party Materials, Customer Data, or End Customer Data;
(b) access to or use of the Provider Materials in combination with any hardware, system, software, network, or other materials or service not provided by Provider or specified for Customer's use in the Documentation;
(c) modification of the Provider Materials other than:
(i) by or on behalf of Provider, or
(ii) with Provider's written approval in accordance with Provider's written specification;
(d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Provider; or
(e) any act, omission, or other matter described in Section 12.2.
12.2 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a "Provider Indemnitee") from and against any and all Losses incurred by such Provider Indemnitee resulting from any Action by a third party (other than an Affiliate of a Provider Indemnitee) to the extent that such Losses arise out of or result from, or are alleged to arise out of or result from:
(a) Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement;
(b) any electronic communication sent by Customer or on Customer's behalf through the Services, and any electronic communication processed by Provider on behalf of Customer, including any claim that such communication was sent without appropriate consent or in violation of Applicable Communications Laws;
(c) Customer's failure to comply with any Applicable Communications Law in connection with Customer's use of the Services, including any claim, Action, investigation, enforcement action, or fine arising under the TCPA, CAN-SPAM, the TSR, or any state law;
(d) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User;
(e) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under this Agreement;
(f) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement; or
(g) any actual or alleged infringement, misappropriation, or other violation of any third party’s Intellectual Property Rights arising out of or relating to Customer IP or any trademarks, service marks, logos, copyrighted content, or other proprietary materials that Customer or its Authorized Users reference, include, display, or transmit in any messages, communications, or content sent through the Services.
Customer's indemnification obligations apply regardless of whether Provider or Provider Personnel participated in, assisted with, or performed the configuration, setup, implementation, or operation of any messaging campaign, automation, integration, or other process that is the subject of the Action or that relates to the compliance issue giving rise to Losses.
12.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1 or 12.2, as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
12.4 Mitigation. If any of the Services or Provider Materials are, or in Provider's opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, Provider may, at its option and sole cost and expense: (a) obtain the right for Customer to continue to use the Services and Provider Materials materially as contemplated by this Agreement; or (b) modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality.
12.5 Sole Remedy. THIS ARTICLE 12 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND PROVIDER MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
ARTICLE 13: LIMITATIONS OF LIABILITY
13.1 EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 13.3, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
13.2 CAP ON LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 13.3, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13.3 Exceptions. The exclusions and limitations in Sections 13.1 and 13.2 do not apply to: (a) Provider's obligations under Section 12.1; (b) Customer's obligations under Section 12.2; (c) Customer's payment obligations under Article 8; (d) liability for either party's willful misconduct; or (e) Customer's breach of Article 3.
ARTICLE 14: INSURANCE COVERAGE
Provider shall bind and maintain, at its expense, with financially sound and reputable insurers, the below specified insurance covering the conduct of its business during the Term and for a period of one (1) year following termination of this Agreement:
14.1 Commercial General Liability: $1,000,000 per occurrence and $2,000,000 in the aggregate;
14.2 Umbrella / Excess Liability Insurance: $5,000,000 in the aggregate; and
14.3 Cyber Liability: $2,000,000 in the aggregate.
ARTICLE 15: TERM AND TERMINATION
15.1 Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement's express provisions, will continue in effect until 30 days from such date (the "Initial Term"), unless a different initial term is specified in the Engagement Letter.
15.2 Renewal Term. This Agreement will automatically renew for additional successive thirty (30) day terms unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a "Renewal Term" and, collectively, together with the Initial Term, the "Term").
15.3 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Provider may terminate this Agreement, effective on written notice to Customer, if Customer:
(i) fails to pay any amount when due hereunder, and such failure continues more than fourteen (14) days after Provider's delivery of written notice thereof; or
(ii) breaches any of its obligations under Article 3, Section 7.3, Section 7.4, or Article 9;
(b) Customer may terminate this Agreement for convenience by providing at least thirty (30) days' advance written notice to Provider;
(c) Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach:
(i) is incapable of cure; or
(ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and
(d) Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party:
(i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;
(ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law;
(iii) makes or seeks to make a general assignment for the benefit of its creditors; or
(iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
15.4 Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Provider shall immediately cease all use of any Customer Data or Customer's Confidential Information and
(i) within thirty (30) days return to Customer, or at Customer's written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer's Confidential Information; and
(ii) permanently erase all Customer Data and Customer's Confidential Information from all systems Provider directly or indirectly controls, provided that
(iii) Provider may, in its discretion, store the Customer Data as backup for the benefit of Customer or for any legitimate business need for up to six (6) months, and
(iv) Provider's obligations under this Section 15.4(b) do not apply to any Resultant Data. For the avoidance of doubt:
(A) Provider's rights in and to any Resultant Data and Anonymized Data, including any AI or machine learning models, algorithms, parameters, weights, or outputs derived therefrom, shall survive termination or expiration of this Agreement in perpetuity and shall not be subject to any return, deletion, or destruction obligations;
(B) Provider shall have no obligation to delete, purge, or modify any AI or machine learning model to the extent such model was trained on or incorporates Resultant Data; and
(C) Provider may, during the wind-down period prior to erasure of Customer Data, continue to Process Customer Data solely to create Resultant Data.
(c) Customer shall immediately cease all use of any Services or Provider Materials and
(i) within sixty (60) days return to Provider, or at Provider's written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Provider Materials or Provider's Confidential Information; and
(ii) permanently erase all Provider Materials and Provider's Confidential Information from all systems Customer directly or indirectly controls;
(d) Provider may disable all Customer and Authorized User access to the Provider Materials;
(e) if Customer terminates this Agreement pursuant to Section 15.3(c), Customer will be relieved of any obligation to pay any Fees attributable to the period after the Effective Date of such termination and Provider will refund to Customer any Fees paid in advance for Services that Provider has not performed as of the Effective Date of termination; and
(f) if Provider terminates this Agreement pursuant to Section 15.3(a) or 15.3(c), or if Customer terminates this Agreement pursuant to Section 15.3(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of Provider's invoice therefor.
15.5 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Article 1, Section 3.1, Section 3.2, Section 3.3, Section 3.4, Article 9, Article 10, Section 11.4, Article 12, Article 13, Section 15.4, this Section 15.5, Article 16, and Exhibit D.
ARTICLE 16: MISCELLANEOUS
16.1 Further Assurances. On a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
16.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
16.3 Consent to Publish. Provider may publish customer success stories featuring Customer and its use of the Services for marketing and promotional purposes. This may include Customer's name, logo, general business details, quotes, performance metrics, and employee names, titles, and photographs. Customer grants Provider a fully-paid and royalty-free license to use such materials and warrants that it has obtained all necessary consents from its employees. Customer may revoke this consent at any time upon thirty (30) days' written notice to Provider; provided that any such revocation shall apply only prospectively to new uses of the materials, and shall not affect or require Provider to remove or modify any materials already published, distributed, or in use as of the Effective Date of revocation.
16.4 Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 16.4):
If to Provider:
Maestra.io LLC
1167 Massachusetts Ave
Arlington, MA 02476
Email: notices@maestra.io
Attention: Legal Notices
To be effective, any notice to Provider under this Section 16.4 must be marked “URGENT LEGAL NOTICE” in the subject line of the email transmission and must be simultaneously delivered to Provider’s physical address set forth above by reputable overnight courier or first-class certified mail.
If to Customer:
As indicated in the Engagement Letter
Notices sent in accordance with this Section 16.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email (with confirmation of transmission), if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the third (3rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
16.5 Interpretation. For purposes of this Agreement: (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
16.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
16.7 Entire Agreement. The Engagement Letter and this Agreement, including its exhibits, schedules, attachments, and appendices constitute the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments, and appendices and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, the Engagement Letter; (b) second, this Agreement, excluding its exhibits, schedules, attachments, and appendices; (c) third, the exhibits, schedules, attachments, and appendices to this Agreement as of the Effective Date; and (d) last, any other documents incorporated herein by reference.
16.8 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Provider's prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Provider's prior written consent is required. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 16.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
16.9 Force Majeure.
(a) No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition, or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.
(b) Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
16.10 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
16.11 Amendment and Modification; Waiver. Provider may amend, modify, or update this Agreement (including its exhibits) by providing Customer with at least thirty (30) days’ prior written notice (which may be delivered by email to the address on file, through the Services, or by posting the updated terms at https://maestra.io/msa/), unless prohibited by applicable law. Customer’s continued use of the Services after the Effective Date of any such amendment shall constitute Customer’s acceptance of the amended terms. If Customer does not agree to any such amendment, Customer’s sole remedy is to terminate this Agreement by providing written notice to Provider prior to the Effective Date of such amendment, in which case the prior version of the Agreement shall govern through the end of the then-current term. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
16.12 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
16.13 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
16.14 Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
16.15 Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Article 3, Section 4.3, Section 7.3, Section 7.4, or Article 9 would cause Provider irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Provider will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
16.16 Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.
16.17 Messaging Compliance Requirements. Should Customer engage in any outbound messaging campaigns, including Short Message Service (SMS), Multimedia Messaging Service (MMS), and email communications through the Services, Customer shall comply with all Applicable Communications Laws, including those established under the TCPA, CAN-SPAM, the TSR, CTIA guidelines, the Communications Act of 1934, as amended, the Federal Trade Commission Act, and all implementing regulations and decisions adopted by the FCC and FTC. Customer's compliance obligations are more fully set forth in Section 3.2 and 3.3 of this Agreement. Provider's assistance in setting up messaging campaigns (including any assistance from Provider Personnel) does not relieve Customer of its obligations under Section 3.2, Section 3.3 or any Applicable Communications Law.
16.18 Electronic Transactions. The parties agree that this Agreement and any related documents may be executed and delivered by electronic means, and that any electronic signatures affixed hereto shall have the same legal effect as original signatures. The parties further agree that this Agreement shall be deemed to be a "writing" and any electronic signatures shall be deemed to be "in writing" for purposes of any applicable Law, including the E-SIGN Act (15 U.S.C. § 7001 et seq.) and the Uniform Electronic Transactions Act ("UETA") as adopted in any applicable jurisdiction.
16.19 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email (including PDF), or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
ATTACHMENTS
Exhibit C — Information Security Policy (SOC2 Type 2 Compliance)
Exhibit D — Subscriber List Certification & Messaging Compliance (SMS/MMS)