Master Service Agreement

Last Updated September 29, 2022

Profound Platform Inc. (dba Finch)

SAAS SERVICES AGREEMENT

This SaaS Services Agreement (the “ Agreement ”) is entered into and effective as of the later of the signature dates set forth below (the “Effective Date”) between Profound Platform Inc. (dba Finch), a Delaware corporation (“ Finch”), and the Customer listed below (“ Customer ”). Finch has developed a proprietary technology platform enabling various services related to systems integration  (the “ Services”), and Customer desires to receive access to the Services as set forth below. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. ORDER FORMS; SERVICES; SUPPORT / PROFESSIONAL SERVICES

1.1 The Services will be provided by Finch to Customer as set forth in a separate order form agreed to by the parties (an “ Order Form”). All Order Forms will incorporate and be subject to the terms and conditions of this Agreement. From time to time the parties may enter into additional Order Forms in connection with Customer’s use of the Services hereunder.

1.2 Subject to the terms of this Agreement, Finch will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative username and password for Customer’s Finch account. Finch reserves the right to refuse registration of or cancel passwords it deems inappropriate.{' '}

1.3 Subject to the terms hereof, Finch will provide Customer with reasonable technical support services in accordance with Finch’s standard practice (which will be available Monday-Friday, 9am-5pm PT).

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Customer will not, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”), (ii) modify, translate or create derivative works based on the Services or any Software (except to the extent expressly permitted by Finch or authorized within the Services), (iii) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party,  (iv) remove any proprietary notices or labels, (v) clone or otherwise use the Services to build an application programming interface, application or product that is competitive with any Finch product or service, (vi) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services, or (vii) bypass any measures Finch may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services).

2.2 Further, Customer may not remove or export, or allow the export or re-export of, the Services, Software or anything related thereto, or any direct product thereof, in violation of any applicable restrictions, laws or regulations.  

2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Finch’s standard published policies then in effect and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Finch against any third-party damages, losses, liabilities, settlements and expenses (including, without limitation, costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Finch has no obligation to monitor Customer’s use of the Services, Finch may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer’s account, passwords (including, without limitation, administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3. CONFIDENTIALITY; PROPRIETARY RIGHTS; FEEDBACK

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Finch includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to Finch to enable the provision of the Services (“Customer Data”). The Receiving Party agrees (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. Except with respect to Personal Data, the Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of or access to any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law.

3.2 Customer shall own all right, title and interest in and to the Customer Data. Finch shall own and retain all right, title and interest in and to (i) the Services and Software, and all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (iii) all intellectual property rights related to any of the foregoing.  

3.3 Notwithstanding anything to the contrary, Finch shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Finch will be free (during and after the Term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Finch products and services, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business, products and services. No rights or licenses are granted except as expressly set forth herein.

3.4 In the event Customer provides suggestions, comments, bug reports, feature request or other feedback (collectively, “ Feedback”), Customer hereby grants to Finch a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use such Feedback for any purpose without payment or attribution.

4. DATA PROCESSING

To the extent that Finch processes any data which is defined as “personal data,” “personal information,” or “sensitive data” in the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”) or the California Consumer Privacy Act of 2018, as amended (“ CCPA”) (“Personal Data”), Finch shall do so in compliance with its privacy policy at{' '} https://tryfinch.com/privacy , which is incorporated herein by reference. If the Personal Data that Finch processes relates to individuals who are data subjects entitled to the rights granted under GDPR, Customer agrees that Finch does so as a data processor as defined in GDPR. If the Personal Data that Finch processes relates to individuals who are California residents, and Customer is subject to CCPA, Customer agrees that Finch does so as a service provider as defined in CCPA. The parties agree to comply with the provisions of any Data Processing Addendum (“ DPA”) between them. In the event of any conflict between Finch’s privacy policy and the DPA, the DPA shall govern.

5. PAYMENT OF FEES

5.1 Customer will pay Finch the then-applicable fees described in the applicable Order Form in accordance with the terms therein, as well as any fees for Professional Services pursuant to Exhibit B  (collectively, the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth in the applicable Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner set forth in the applicable Order Form. Finch reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the then-current Term (as defined below), upon sixty (60) days’ prior notice to Customer (which may be sent by email), provided that any such increase will at maximum be the greater of (a) five percent (5%) based on the Fees for the prior Term or (b) an amount equal to the percentage increase in the Consumer Price Index (CPI). If Customer believes that Finch has billed Customer incorrectly, Customer must contact Finch no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Finch’s customer support department at{' '} support@tryfinch.com.

5.2 Finch may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Finch thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Services. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Finch’s net income.  

6. TERM AND TERMINATION

6.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the applicable Order Form, and shall be automatically renewed at then-current pricing for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless Customer provides Finch with written notice of its intent to terminate at least sixty (60) days prior to the end of the then-current Term. Notwithstanding the foregoing, if any of Customer’s usage limits as set forth in the applicable Order Form have been exceeded during  the most recent Term, any renewal of this Agreement (automatic or otherwise) is subject to good faith negotiation between the parties to reflect Customer’s then-current and anticipated usage of the Services. In the event no such agreement is reached, this Agreement shall terminate at the end of the then-current Term.

6.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ written notice (or without notice in the case of nonpayment by Customer), if the other party materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within such thirty (30) day time period. The following sections shall survive expiration or earlier termination of the Agreement:{' '} Sections 2, 3, 5, this 6.2, 7, 8, 9 and 11.

7. WARRANTY AND DISCLAIMER

Finch shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Finch or by third-party providers, or because of other causes beyond Finch’s reasonable control, but Finch shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, FINCH DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND Finch DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

8. INDEMNITY

Finch shall hold Customer harmless from liability to third parties resulting from infringement by the Services of any United States patent or any copyright or misappropriation of any trade secret, provided Finch is promptly notified in writing of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Finch will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Finch, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Finch, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Finch to be infringing, Finch may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Services.

9. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR FINCH’S GROSS NEGLIGENCE AND INTENTIONAL MISCONDUCT, ITS INDEMNIFICATION OBLIGATIONS, AND BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, FINCH AND ITS DIRECTORS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, EMPLOYEES AND AGENTS SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (I) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS, (II) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, (III) FOR ANY MATTER BEYOND FINCH’S REASONABLE CONTROL, OR (IV) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO FINCH FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT FINCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FINCH’S TOTAL LIABILITY WITH RESPECT TO BREACH OF ITS CONFIDENTIALITY AND DATA PROTECTION OBLIGATIONS WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO FINCH FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT FINCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. PUBLICITY

The parties shall work together in good faith to issue at least one mutually agreed-upon press release within thirty (30) days after the Effective Date. Finch shall be permitted to include Customer’s name and logo in its customer list, marketing and pitch materials.

11. THIRD PARTY CONTENT & SERVICES

Finch is not responsible for content provided by others, including mentions and content from third party services. Customer and anyone else who accesses the Services may access content that might be unlawful, offensive, harmful, inaccurate or otherwise inappropriate. Finch will not be liable to Customer or any third party for any such content. Additionally, if Customer accesses or purchases a third party service, it does so at its own risk. Customer’s relationship with any such third party service provider is an agreement between Customer and such third party.

12. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Finch’s prior written consent. Finch may freely transfer or assign any of its rights and obligations under this Agreement to an affiliate or in the event of a sale of all or substantially all of its stock, assets or business to which this Agreement relates. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Finch in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail, the day after it is sent; if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.