This Master Services Agreement (“Agreement”) is made between Bonside, Inc. (“Bonside”), a Delaware corporation and [insert customer name] (“Customer”) (each, a “Party” and collectively, the “Parties”).  The provisions of this Agreement will apply to the Services (as defined herein) provided to Customer under this Agreement and shall govern all Order Forms entered into between Bonside and the Customer. 

RECITALS

(A) WHEREAS, Bonside is the owner and provider of a software-as-a-service platform (the “Bonside Solution”) that facilitates access to and analysis of data that is made available by Customer’s tenants of its commercial properties (such tenants, the “Tenants,” and the data, the “Tenant Information”) and is the provider of certain other associated services, as more fully described on an Order Form executed between the Parties (collectively, with the Bonside Solution, the “Services”); and

(B) WHEREAS, access to the Tenant Information is facilitated by Bonside’s application programming interfaces (“APIs”), which are deemed a part of the Bonside Solution; and

(C) WHEREAS, Customer wishes to use the Services, and Bonside wishes to supply to the Services to Customer, in accordance with the terms and conditions of this Agreement.

NOW, THEREFORE, for good and valuable consideration of the mutual covenants and promises herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:

1. DEFINITIONS. Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.

   1. “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Bonside Solution.

   2. “Authorized User” means each of Customer’s employees, agents, customers and independent contractors who are authorized to access the Bonside Solution pursuant to Customer’s rights under this Agreement.

   3. “Customer Information” means any data and information provided or submitted directly by Customer or its Authorized Users for use in connection with the Services (but excludes Tenant Information).

   4. “Documentation” means any material shared with the Customer as a reference for how to use the Bonside Solution or in support thereof.

   5. “Fees” means the fees for Services as set forth on an Order Form.

   6. “Order Form” means an order form executed by the Parties and referring to this Agreement, which specifies the Services to be provided and applicable Fees.

   7. “Professional Services” means any professional services provided by Bonside to Customer, as further described in an Order Form.

   
   

2. PROVISION OF SERVICES.

   1. Access. Subject to the terms and conditions of this Agreement, Bonside will provide the Services set forth in an Order Form.  On or as soon as reasonably practicable after the Effective Date, Bonside will provide to Customer the necessary Access Protocols to allow Customer and its Authorized Users to access the Bonside Solution in connection with the Services. Customer will prevent unauthorized access to, or use of, the Bonside Solution, and notify Bonside promptly of any such unauthorized use known to Customer.  Customer bears sole responsibility for notifying Bonside immediately of any change in authorized users’ permissions or if the status of an Authorized User changes or if Bonside must revoke access privileges to any Authorized User.  

   2. License Grant. Subject to the terms and conditions of this Agreement, Bonside grants to Customer a non-exclusive, non-transferable (except as permitted under Section 10.6) license during the Term (as defined below) to access and use the Bonside Solution (and any reports provided in connection therewith) during the term in connection with the Services, in all instances solely for Customer’s internal business purposes. Customer may only permit Authorized Users to access and use the features and functions of the Bonside Solution under this Agreement.  All rights not expressly granted to Customer in this Agreement are reserved by Bonside. 

   3. AI Services. The Services may utilize certain publicly available artificial intelligence and deep learning platforms, algorithms, tools and models (“AI Services”) to provide the Platform. Bonside may share Customer Information and/or Tenant Information with the AI Services for this purpose. Bonside will have no liability for the unavailability of any AI Services, or any third party’s decision to discontinue, suspend or terminate any AI Services.  

   4. Customer Obligations. The Bonside Solution, together with any related software, technology, algorithms, processes, designs, hierarchies, user interfaces and any intellectual property rights related thereto or embodied therein, together with any improvements or modifications to the following, are the exclusive property and Confidential Information of Bonside.  Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Bonside Solution, except as expressly allowed in an Order Form; (b) modify, adapt, alter or translate the Bonside Solution; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Bonside Solution for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Bonside Solution, except as permitted by law; (e) interfere in any manner with the operation of the Bonside Solution or the hardware and network used to operate the Bonside Solution; (f) modify, copy or make derivative works based on any part of the Bonside Solution or Documentation; (g) access or use the Bonside Solution to build a similar or competitive product or service; (h) attempt to access the Bonside Solution through any unapproved interface; or (i) otherwise use the Bonside Solution in any manner inconsistent with applicable law.  Customer bears responsibility to obtain any computer hardware or software required to access the Bonside Solution.

   
   

3. CUSTOMER INFORMATION; TENANT INFORMATION.

   1. Customer Information. The Customer Information is the exclusive property of Customer.  Customer is solely responsible for the accuracy, quality and legality of Customer Information.  Customer will obtain all consents and permissions needed for Bonside to use the Customer Information to provide the Services. Customer and its Authorized Users will have access to the Customer Information and will be responsible for all changes to or deletions of the Customer Information and the security of all passwords and other Access Protocols required in order to access the Bonside Solution. Customer hereby grants Bonside a license to use the Customer Information in connection with the provision of the Services.

   2. Tenant Information. The Bonside Solution facilitates Customer’s access to Tenant Information. Customer may only use the Tenant Information for its lawful business purposes, and Customer shall not share Tenant Information with third parties (except to the extent such Tenant Information has been aggregated and/or de-identified in a way that could not reasonably be used to re-identify Tenant). Tenants may elect to withhold certain information from Customer. Bonside shall have no liability in connection with a Tenant’s refusal to provide Customer with certain information. Bonside makes no representations or warranties in connection with the Tenant Information. The Bonside Solution facilitates access to information that a Tenant provides and is provided for informational purposes only. The Business Scorecard is business information; not a consumer report. 

   3. Bonside Responsibility. Bonside shall comply with all applicable laws in connection with the provision of the Services.  Bonside will maintain reasonable physical, administrative and technical security measures designed to ensure the availability, integrity and confidentiality of the Customer Information and the Tenant Information.  

      
      

4. PAYMENTS. 

   1. Fees.  In consideration for the access rights granted to Customer and the Services performed by Bonside under this Agreement, Bonside will be paid the Fees set forth in an Order Form.  Except as otherwise provided in an Order Form, payment obligations are non-cancelable and all amounts paid are nonrefundable except as otherwise agreed by Bonside.

   2. Payments. Except as otherwise provided in an Order Form, all Fees are billed at the beginning of the Term, and due and payable within thirty (30) days of the date of the invoice. Bonside reserves the right (in addition to any other rights or remedies Bonside may have) to discontinue the Bonside Solution and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full.  Any amounts not paid when due will bear interest at the rate of one- and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.

   3. Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Bonside’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Bonside Solution to Customer. Customer will make all payments of Fees to Bonside free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Bonside will be Customer’s sole responsibility, and Customer will provide Bonside with official receipts issued by the appropriate taxing authority, or such other evidence as the Bonside may reasonably request, to establish that such taxes have been paid. 

      
      

5. CONFIDENTIALITY.

   1. Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. For the avoidance of doubt, Customer Information will be considered Confidential Information of Customer.

   2. Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a reasonable need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Bonside). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. 

   3. Exceptions. The confidentiality obligations set forth in Section 5.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) was independently developed by employees and contractors of the Receiving Party without use or reference to the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

   4. Feedback & De-identified Data.  Both during and after the term, Bonside may (a) use any suggestions, enhancement requests, recommendations or other feedback obtained in the course of providing the Services or otherwise provided by Customer, including Authorized Users, and (b) collect, use, and analyze data provided to Bonside or otherwise arising during the use of the Services (including without limitation the Tenant Information), in order to provide, improve and enhance the Bonside Solution and the Services and for other development, diagnostic and corrective purposes for those or other offerings of Bonside, and to the extent such data is de-identified in a manner that does not specifically identify Customer, share and commercialize such data. 

      
      

6. TERM AND TERMINATION.

   1. Term. Notwithstanding anything to the contrary in an Order Form, this Agreement will begin on the Effective Date and continue in full force and effect for one (1) year, unless earlier terminated in accordance with the Agreement (the “Initial Term”).  Thereafter, this Agreement will automatically renew for additional successive terms of one (1) year each, unless a Party provides notice of non-renewal to the other Party at least sixty (60) days prior to the end of the then-current Term (each, a “Renewal Term” and together with the Initial Term, the “Term”).

   2. Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. 

   3. Effect of Termination. Upon termination or expiration of this Agreement for any reason, Customer’s use of and rights to the Services and Bonside Solution shall cease and any amounts owed to Bonside under this Agreement will become immediately due and payable. Sections 2.3, 4, 5, 6.3, 7, 8, 9, and 10 will survive expiration or termination of this Agreement.

      
      

7. WARRANTIES AND DISCLAIMERS.

   1. Mutual Warranties.  Each Party represents and warrants the following: (i) that it is duly incorporated, validly existing and in good standing under the laws of its state of incorporation; (ii) that it has the full power and authority to consent to and perform this Agreement; and (iii) this Agreement has been duly and validly executed and constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.  

   2. Bonside Warranties. Bonside represents and warrants that it will provide the Service under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards and in compliance with applicable laws, rules and regulations. 

   3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND BONSIDE SOLUTION ARE PROVIDED “AS IS,” AND BONSIDE MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. BONSIDE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES BONSIDE GUARANTEE ANY SPECIFIC RESULTS IN CONNECTION WITH USE OF THE SERVICE.  BONSIDE SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ACT OR OMISSION OF ANY THIRD PARTY OR ITS SERVICES. BONSIDE SHALL HAVE NO LIABILITY IN CONNECTION WITH THE AI SERVICES OR THE TENANT INFORMATION. CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION OR DATA PROVIDED BY BONSIDE IS FOR INFORMATIONAL PURPOSES ONLY. THE SERVICES ARE NOT A SUBSTITUTE FOR PROFESSIONAL ADVICE. CUSTOMER AGREES THAT BONSIDE IS NOT RESPONSIBLE FOR ANY FINANCIAL, BUSINESS, OR LEGAL DECISIONS OF CUSTOMER.

      
      

8. LIMITATION OF LIABILITY.

   1. Types of Damages.  TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY OR PROCUREMENT OF SUBSTITUTE SERVICES, ANY BUSINESS INTERRUPTION, IMPACT OF LOST OR DAMAGED DATA OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.  

   2. Amount of Damages. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID TO BONSIDE BY CUSTOMER IN CONNECTION WITH THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL BONSIDE HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO THE ACTS OR OMISSIONS OF ANY THIRD PARTY.  NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY.

   3. Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 8 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.

      
      

9. INDEMNIFICATION.

   1. By Bonside. Bonside will defend at its expense any claim, action or suit brought against Customer (including reimbursement of Customer’s reasonable legal or expert fees or related litigation costs), and will pay any settlement Bonside makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit by any third party that the Bonside Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws within the United States of America. Notwithstanding the foregoing, Bonside will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Service not in accordance with this Agreement or (ii) any use of the Service in combination with other products, services, software or data not supplied by Bonside. This Section 9.1 states Bonside’s entire liability to Customer, and Customer’s sole remedy, with respect to any claim of infringement by a third-party.

   2. By Customer. Customer will defend at its expense any claim, action or suit brought against Bonside (including reimbursement of Bonside’s reasonable legal or expert fees or related litigation costs), and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit arising out of or relating to any Customer Information, Tenant Information, or any improper or unauthorized use of the Service.

   3. Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.

      
      

10. MISCELLANEOUS.

    1. Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The Parties hereby expressly consent to the exclusive personal jurisdiction and venue in the state and federal courts for New York, New York for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. 

    2. Export & Foreign Use. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Bonside, or any products utilizing such data, in violation of the United States export laws or regulations. Bonside make no representation that the Service is appropriate or available for use in locations other than the United States and, if Customer uses the Service from outside the United States, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.

    3. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

    4. Publicity.  Subject to Customer’s prior approval, not to be unreasonably withheld, Bonside may identify Customer (together with its trademark or logo) as a customer on Bonside’s website and other marketing materials. If Customer does not grant such approval within five (5) business days after Bonside’s request, it will be deemed granted; provided that Customer may subsequently withdraw such approval upon written notice.

    5. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

    6. No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns. 

    7. Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services.

    8. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, telecommunication or internet delays or failures, fire, earthquake, flood, pandemic or epidemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

    9. Independent Contractors. Customer’s relationship to Bonside is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Bonside.

    10. Notices. All notices required or permitted under this agreement must be delivered in writing, if to Bonside, by emailing each Party’s e-mail address set forth on the applicable Order Form, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the applicable Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice to the other party.

    11. Third-Party Beneficiaries. The Parties hereby acknowledge and agree that there are no third-party beneficiaries to this Agreement, and nothing set forth in this Agreement provides any third parties with any right, remedy, and cause of cause of action or privilege hereunder.

    12. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. Counterparts may be delivered via Docusign, Adobe Sign, electronic mail (including pdf or any electronic signature), or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

    13. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and Bonside.