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Master Services Agreement

Last updated September 12, 2024‍

This Platform Master Services Agreement (the, “Agreement”), is entered into as of the first date of Company’s access or use of the Services (the “Effective Date”) as between Talkmore, Inc. (dba Seam) (“Seam”) and the customer identified on the applicable Order Form or invoice (“Company”). Company acknowledges that upon purchase of the Services and access thereof, Company is agreeing to be bound by the terms of the Agreement.

WHEREAS, Company desires to engage Seam to provide access to certain services in connection with Seam’s propriety Platform (defined below); and

WHEREAS, Seam wishes to provide access and use of the Platform Services (defined below) to Company in accordance with the terms and conditions set forth in this Agreement;

NOW, THEREFORE, in consideration of the promises and mutual covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency which is hereby acknowledged, Company and Seam hereby agree as follows.

1. Definitions

‍“AUP” means the then-current version of the Acceptable Use Policy located at https://www.getseam.ai/legal, the terms of which are hereby incorporated by reference.

“Documentation” means the operator, user, and technical manuals and documentation.

“Order Form” means a (i) mutually executed order form or other mutually agreed upon ordering document; (ii) purchase order issued by Company and accepted by Seam in writing; (iii) online registration form made available by Seam and accepted by Company; or (iv) quote issued by Seam and accepted by Company in writing, in each case which references this Agreement and sets forth the applicable Platform Services and/or Professional Services to be provided by Seam.

“Platform” means Seam’s proprietary software application, as updated from time to time, used for delivering the Services, as more particularly described or identified in the applicable Order Form.

“Services” means access to the Platform, through which Company allows its End Users to view, summarize, extract, and otherwise access information within Company’s database along with other publicly available information.

“Seam IP” means the Platform Services, the underlying software, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Platform Services,  any Documentation, and all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all intellectual property rights in and to any of the foregoing.

2. Services
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Access to the Platform. Subject to the terms and conditions of this Agreement, Seam hereby grants to Company a limited, non-exclusive, non-transferable, non-sublicensable, revokable license during the Term (as set forth in the Order Form) to access and use the Platform solely in connection with Company’s use of the Services.  

Use of the Platform. Company shall at all times use the Platform Services in accordance with this Agreement, the AUP, and any Documentation.  Company may use the Platform to access the Services, and download or print any Outputs (defined below) solely for its internal business purposes and in accordance with applicable laws.  Company may allow certain employees to use the Platform Services on its behalf (“Authorized Users”), provided that, Company is fully responsible and will indemnify Seam for all acts or omissions by its Authorized Users in connection with their use of the Platform Services and their compliance with the terms and conditions of this Agreement, including, without limitation, with Company’s obligations and the restrictions set forth in Section 2(c).

Use Restrictions. Company will not and will not permit any person or entity (including, without limitation, Authorized Users) to, directly or indirectly: (i) copy, modify or create any derivative work of any portion of the Platform Services or the Documentation; (ii) reverse engineer, decompile, decode, disassemble, engage in model extraction or stealing attacks, prompt injection attacks or otherwise attempt to derive or gain improper access to any software components, models, algorithms or systems of the Platform Services, in whole or in part; (iii) frame, mirror, sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan any portion of the Platform Services to any other person or entity, or otherwise allow any person or entity to use the Platform Services for any purpose other than for the benefit of Company in accordance with this Agreement; (iv) use the Platform Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of any person or entity, or that violates any applicable law; (v) access or search the Platform Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Platform Services features provided by Seam for use expressly for such purposes; (vi) use the Platform Services in a manner that violates the AUP or TOS; or (vii) use the Platform Services, Documentation or any other Seam Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Platform Services.

Third-Party Services. Certain features and functionalities within the Platform Services may depend on, are integrated with, or allow Company and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Platform Services. Company acknowledges and agrees that Company’s use and access to the Third-Party Services shall be governed by the applicable third-party terms and conditions.

Evaluation Products. Any services, products or features provided to Company for free for evaluation, Proof of Concept (“POC”), beta testing, or equivalent purposes (“Evaluation Products”) are provided “AS IS” and without any warranties, indemnities, or performance obligations set forth in this Agreement. Company is not obligated to use any Evaluation Products. Evaluation Products may contain defects or errors. Seam makes no representations, warranties, or guarantees that such Evaluation Products will be made generally available or incorporated into the Platform Services. Seam may modify or discontinue Evaluation Products without notice and for any reason, with no liability to Company.

Data Processing Addendum. Each party will comply with its obligations in the then-current version of the Data Processing Addendum located at https://www.getseam.ai/legal (the “Data Processing Addendum”), the terms of which are incorporated herein by reference.

Service Levels. Seam will provide Company with reasonable technical support for the Platform Services in accordance with any specific terms or obligations set forth in the Order Form.  Subject to the terms and conditions of this Agreement,  Seam will use commercially reasonable efforts to make the Platform generally available during the Term, except for excused downtime, which, for purposes of this Agreement, means (i) planned downtime (with reasonable advance notice to Company) of the Platform; and (ii) any unavailability of the Platform caused by or related to circumstances beyond Seam’s reasonable control or foreseeability, including from unavailability caused by Third Party Services.

3. Fees

Company will pay Seam the fees set forth in the applicable Order Form (“Fees”) in accordance with the payment terms set forth therein and without offset or deduction. Except as otherwise provided in the relevant Order Form or agreed by the Parties, Seam will issue invoices to Company, and Company will pay all undisputed amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If Company fails to make any payment when due, upon 30 days prior written notice Seam may charge Company late charges that will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Seam may suspend the Platform Services and Professional Services until all payments are made in full

4. Ownership and Use

‍Rights Reserved. Seam reserves and, as between the Parties will solely own, the Seam IP and all rights, title and interest in and to the Seam IP. No rights are granted to Company hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.

Company Data.  As between Seam and Company, Company owns and retains all right, title and interest in and to all Company Data.  Additionally, Company has obtained all necessary rights, consents, licenses, and permissions required to provide Company Data to Seam.  For purposes of this Agreement, “Company Data” means all information, data, content and other materials, in any form or medium, that is provided, or otherwise uploaded, by or on behalf of Company through the Platform Services or to Seam in connection with Company’s use of the Platform Services.  Company hereby grants Seam a non-exclusive, limited license to use, process, store, analyze, and display Company Data within the Platform Services during the Term for the limited purpose of performing the Services and carrying out its obligations under this Agreement.  

Inputs and Outputs.  As part of the Platform, and Company’s use of the Services, Company will provide questions, prompts, or other forms of interactions into the Platform (“Inputs”).  In response to the Inputs provided by Company, the Platform will generate various SQL query responses, query responses in data tables, and other outputs analyzing Company’s Data with the Inputs (collectively, “Output”).  As between the Parties, and excluding all Company Data, Seam owns all right, title, and interest in the Inputs and Outputs.

Data Usage; Anonymized Data.  Seam may aggregate and de-identify Company Data provided through the Platform Services (“Anonymized Data”).  Seam may use Inputs, Outputs, and Anonymized Data, to improve and optimize the Platform Services, including any third-party artificial intelligence provider (“Third Party AI-provider”) that provides Seam with any artificial intelligence system; provided that, (i) Seam shall not identify, or attempt to re-identify any Company Data, and (ii) any such approved Third-Party AI Provider shall be subject to contractual requirements regarding Confidential Information, data privacy, and data security, at least as restrictive as this Agreement (including the Data Processing Addendum).

Feedback. From time to time Company or its employees, contractors, or representatives may provide Seam with suggestions, comments, feedback or the like with regard to the Platform Services (collectively, “Feedback”). Company hereby grants Seam a perpetual, irrevocable, royalty-free and fully-paid up license to use all Feedback in connection with Seam’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Platform Services.

5. Representations and Warranties

Company.  Company represents and warrants that: (i) it has full power and authority to enter into this Agreement; (ii) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary actions and do not violate its organizational documents; (iii) it will at all times access and use the Platform Services in compliance with applicable laws, including all applicable data privacy laws; and (iv) Seam’s access toCompany Data will not (a) violate any applicable laws or regulations,  (b) infringe or violate any intellectual property or other rights of any third party, or (c) cause a breach of any agreement or obligations between Company and any third-party.

Seam.  Seam represents and warrants that: (i) it has full power and authority to enter into this Agreement; (ii) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary actions and do not violate its organizational documents; and (iii) the Platform, the provision of Services, and performance of its obligations under this Agreement will not violate applicable law, including all applicable data privacy laws.

6. Term and Termination

Term.  The initial term of this Agreement begins on the Effective Date and expires at the end of the Initial Term specified in the relevant Order Form (the “Initial Term”). Except as otherwise set forth in the Order Form, with respect to the purchased Platform Services (and not  Evaluation Products) following the Initial Term, this Agreement will automatically renew for additional periods of one (1) year (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless Company gives notice to Seam of non-renewal at least thirty (30) days prior to the end of the current Term or Seam terminates this Agreement in accordance with Section 8 of this Agreement. Seam understands and agrees that Renewal Term(s) may have additional specifications and requirements requested by the Company.

Termination.  Either Party may terminate this Agreement, if the other Party materially breaches this Agreement, and, if able to be cured, such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. Seam may further terminate this Agreement or any Order Form immediately upon written notice to Company in the event that Company breaches Sections 2, or infringes or otherwise violates Seam’s intellectual property rights in and to the Platform Services.

Effect of Termination.  Upon expiration or termination of an Order Form (other than termination pursuant to Section 6(b)), each other Order Form that is then-in effect will remain in effect for the duration of the then-current Term of such Order Form.  Upon expiration or termination of each Order Form: (i) each Party will make no further use of any Confidential Information belonging to the other Party, and will promptly return to the other Party (or destroy) all Confidential Information of the other Party in its possession or control, except for any archived electronic communications which may be stored confidentially, (ii) Company’s and its Authorized Users’ right to Use the Platform Services pursuant to such Order Form will immediately terminate; and (iii) all Fees owed by Company to Seam pursuant to such Order Form will be immediately due; provided that, if Company terminates the Order Form for cause in accordance with Section 6(b), Seam will refund to Company a pro rata amount of any Fees paid up-front based on the remainder of the applicable Term.  The rights and obligations of Seam and Company contained in Sections 4, 5, 7, 8, 9, and 10 will survive any expiration or termination of this Agreement and any Order Form(s).  

7. Confidentiality and Security

Confidentiality. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure, including but not limited to, technical data, trade secrets, know-how, research, product plans, roadmaps, or other information regarding its products or services, customer lists and customers, software, developments, inventions, discoveries, ideas, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, and other business information. For clarity, the Platform, Services, Documentation, Evaluation Products, and Seam IP will be deemed Confidential Information of Seam; and Company Data shall be the Confidential Information of Company. The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party except as expressly permitted herein and as necessary to perform its obligations or exercise its rights under this Agreement. The Receiving Party may disclose Confidential Information of the Disclosing Party only: (i) to those of its employees, contractors, agents and advisors who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure. The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.

Exclusions. Confidential Information will not include any information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without access to or use of any Confidential Information of the Disclosing Party; (iv) is rightfully obtained by the Receiving Party from a third-party without restriction on use or disclosure; or (v) is Company Personal Data (which, to the extent applicable, shall be subject to the Data Processing Addendum).

Information Security.  Each Party shall, with respect to all systems, applications, networks or sites used by such Party in accessing, processing or storing Confidential Information, comply with commercially reasonable information security standards in compliance with applicable law.  Either party may reasonably request, and the Receiving Party shall make available, summaries of its relevant policies and procedures, such as penetration testing results, and incident response plans.

Security Breach.  Each Party shall notify the other Party promptly in writing of any unauthorized access to Confidential Information or any of the systems either Party uses to carry out its obligations under this Agreement that results in the disclosure of Confidential Information (“Security Breach”).  Upon the occurrence of any Security Breach, Company shall conduct a reasonable investigation to determine the likelihood that the information has been or will be misused and shall promptly deliver such notification to the injured Party.

8. Indemnification

Indemnification by Seam. Subject to Section 12(b), Seam will defend, indemnify and hold harmless Company against any damages and liabilities, to the extent arising from a claim, suit or proceeding brought by a third-party (“Claims”) arising out of or alleging that the Platform infringes or misappropriates such third party’s intellectual property rights. If Seam reasonably believes the Platform Services (or any component thereof) could infringe any third party’s intellectual property rights, Seam may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Platform Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Company to continue use of the Platform. If Seam determines that neither alternative is commercially practicable, Seam may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Company. In the event of any such termination, Seam will refund to Company a pro-rata portion of the Fees that have been paid for the unexpired portion of the then current Term. The rights and remedies set forth in this Section 12 will constitute Company’s sole and exclusive remedy for any infringement or misappropriation of intellectual property rights in connection with the Platform.

Exclusions. Seam’s obligations under Section 12(a) will not apply if the underlying Claim arises from or as a result of: (i) Company’s breach of this Agreement or Company’s or its Authorized Users’ negligence, willful misconduct or fraud; (ii) any Company Data; (iii) Company’s failure to use any enhancements, modifications, or updates to the Platform that have been provided by Seam; (iv) modifications to or configuration of the Platform by anyone other than Seam; (v) combinations of the Platform with software, data or materials not provided by Seam; (vi) misuse, abuse or unauthorized use of the Platform, including but not limited to use in a manner different from its intended purpose contemplated hereunder; or (vii) any prompt injections or malicious code injections into the Platform.

Indemnification by Company. Company will defend, indemnify and hold harmless Seam from and against any damages and liabilities, to the extent arising from a Claim against Seam that: (i) Company Data, or its use by Seam under this Agreement, infringes, misappropriates or violates a third-party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation; (ii) is based on Company’s or an Authorized User’s use of the Platform or Documentation to the extent such use was not in accordance with this Agreement or applicable law or regulation; (iii) is based on the manufacture, sale, distribution or marketing of any Company’s products or services; or (iv) is based on a breach of Section 2 by Company.

9. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
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A. THE PLATFORM, SERVICES, AND OTHER SEAM IP ARE PROVIDED ON AN “AS IS” BASIS, AND SEAM MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND TO CUSTOMER, ITS AUTHORIZED USERS, OR TO ANY OTHER PARTY REGARDING THE SEAM IP, THE PLATFORM, SERVICES, OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER.

B. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  EXCEPT FOR FRAUD, GROSS NEGLIGENCE, OR WILFULL MISCONDUCT, IN NO EVENT WILL SEAM’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SEAM IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION WILL APPLY WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

10. Miscellaneous 

Governing Law.  The Parties agree that this Agreement shall be governed by the laws of the State of Delaware without regard to conflict of law provisions. 

Assignment.  Neither Party may assign, transfer or sublicense this Agreement, by operation of law or otherwise, without the other Party’s prior written consent, except to a successor entity in the event of a merger, consolidation or sale of all or substantially all of the assets of such Party, and any attempt by either Party to do so, without such consent, will be void.

Use of Marks. Seam may display only those logos or other service marks authorized by Company on Seam’s website and other marketing materials related to the Platform Services. Neither Party may display or use the other Party's marks beyond what is allowed in this Agreement without the other Party's prior written consent.  Any use of a Party's marks will inure to the benefit of the Party holding Intellectual Property Rights in those marks. A Party may revoke the other Party's right to use its marks pursuant to this Agreement with written notice to the other and a reasonable period to stop the use.  Company agrees to Seam’s use of Company’s marks in connection with any written and oral presentations, advertising, and marketing.

Successors and Assigns.  Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.

Export Laws.  Company affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Platform Services, software, any Company Data, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. Company will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval.

Force Majeure.  Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement due to causes beyond its reasonable control (for example, war, acts of God, fire, etc.).

Severability.  If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.

Entire Agreement.  This Agreement, including its schedules, exhibits and any Order Form(s), is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.

Independent Contractor.  Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent.

Waiver.  Except as expressly set forth in this Agreement, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.

Notice.  All notices required to be sent hereunder will be in writing (email being sufficient) and will be deemed to have been given when mailed by certified mail, overnight express, or sent by email, with receipt confirmed.

Counterparts; Electronic Signatures. This Agreement, including all Order Forms, may be executed electronically in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.