Master Service Agreement

Braintrust Data, Inc. Terms of Service

PLEASE READ THESE ENTERPRISE TERMS ("TERMS") CAREFULLY BEFORE USING THE SERVICES OFFERED BY BRAINTRUST DATA, INC. ("BRAINTRUST"). BY SUBMITTING AN ONLINE ORDER VIA BRAINTRUST'S STANDARD ORDERING PROCESS THAT IS ACCEPTED BY BRAINTRUST (EACH, AN "ORDER"), YOU ("CUSTOMER") AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDERS, THE "AGREEMENT") TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

1. Orders; Access to the Service

Upon submission and acceptance of each Order, such Order shall be incorporated into and form a part of the Agreement. For each Order, subject to Customer's compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order) Braintrust grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right and license to internally access and use the Braintrust software platform as specified in such Order (collectively, the "Service," or "Services") during the applicable Order Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Braintrust's applicable official user documentation for such Service (the "Documentation").

2. Service Levels

Subject to Customer's payment of all applicable fees, Braintrust will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Braintrust reserves the right to suspend Customer's access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Braintrust.

3. Service Updates

From time to time, Braintrust may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge ("Updates"), and such Updates will become part of the Services and subject to this Agreement; provided that Braintrust shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Braintrust may make improvements and modifications to the Services at any time in its sole discretion. Braintrust shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes.

4. Ownership; Feedback

As between the parties, Braintrust retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Braintrust for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is made available to Customer hereunder (including without limitation any software identified on an Order) shall be deemed a part of the "Services" and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Braintrust with respect to the Service ("Feedback"). Braintrust acknowledges and agrees that all Feedback is provided "AS IS" and without warranty of any kind. Notwithstanding anything else, Customer shall, and hereby does, grant to Braintrust a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.

5. Fees; Payment

Customer shall pay Braintrust fees as set forth in each Order ("Fees"). Unless otherwise specified herein or in an Order, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with Service (excluding taxes based on Braintrust's net income). All Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any user or usage limitations set forth on an Order, then Braintrust shall invoice Customer for such additional users or usage at Braintrust's then-current standard overage rates for such usage for each month in which such excess usage occurs.

6. Restrictions

Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any Braintrust product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (viii) access or use all or any part of the Service in order to build a product or service which replicates, competes with or is substantially similar to the Service; (ix) attempt to undertake any security testing of the Service without the prior written consent of Braintrust; or (x) bypass any measures Braintrust may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Customer is responsible for all of Customer's activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service. Customer (a) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer's use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights.

7. Confidential Information

From time to time during the Term (as defined below), either party may disclose or make available to the other party nonpublic information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information (collectively, "Confidential Information"). For the avoidance of doubt, Braintrust's Confidential Information includes without limitation the Services and any product roadmap information. Confidential Information does not include information that, at the time of disclosure is: (a) generally available to the public; (b) known to the receiving party at the time of disclosure without restriction; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party without access to or use of the Confidential Information. As the receiving party, each party will (a) hold Confidential Information in confidence and not disclose it to any person or entity, except to the receiving party's employees, consultants, agents or representatives who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and (b) only use Confidential Information to fulfill its obligations and exercise its rights under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving party will promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party's Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party's obligations with regard to Confidential Information will expire five (5) years from the date such Confidential Information is first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations will survive for as long as such Confidential Information remains subject to trade secret protection under applicable law.

8. Customer Data

For purposes of this Agreement, "Customer Data" shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not Braintrust, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. If Customer requires a Data Processing Agreement, the parties agree to be bound by the applicable form found at DPA . In the event of any conflict between this Agreement and the applicable DPA with respect to personally identifiable information or personal health information, the DPA shall prevail with respect to use, processing and disclosure of such information . Customer represents and warrants that it has all rights necessary to provide the Customer Data to Braintrust as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). Braintrust shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data. Braintrust is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to Braintrust's gross negligence or willful misconduct. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer's account is ninety (90) days or more delinquent. Braintrust agrees that it will not use any Customer Data to train, develop, or improve artificial intelligence or machine learning models, algorithms, or systems.

9. Usage Data

Notwithstanding anything to the contrary, Customer acknowledges and agrees that Braintrust may collect certain metrics data and usage information related to the provision, use and performance of various aspects of the Service, where such data and information does not identify the Customer or any individual ("Usage Data"). Braintrust owns any Usage Data, which for clarity shall not be considered Customer's Confidential Information. Nothing in this Agreement will be construed as prohibiting Braintrust from utilizing the Usage Data to optimize and improve the Service, or otherwise in connection with Braintrust's business operations.

10. AI Features

Certain features of the Service (such as prompt engineering assistance) may involve the use of artificial intelligence or machine learning. Customer acknowledges and agrees that (i) artificial intelligence and machine learning are rapidly evolving fields of study, and given the probabilistic nature of machine learning, use of the Services may in some situations result in incorrect or inaccurate information, (ii) Customer must verify the accuracy and appropriateness of any outputs that are provided by the Services before relying on any such outputs, (iii) relying upon any outputs generated by the Services without first verifying their accuracy could cause harm, and (iv) Customer will not include any unnecessary, inaccurate or deceptive inputs in connection with its use of the Services (including in an attempt to steer the Services to generate inaccurate results). Braintrust will use commercially reasonable efforts to comply with industry standard artificial intelligence guidelines applicable to its features utilizing artificial intelligence or machine learning.

11. Third-Party Integrations

Customer acknowledges that the Services are intended to be used with third party artificial intelligence services and/or large language models that are not provided by Braintrust (each, a "Third-Party Service"). Braintrust is not a party to any agreement with respect to Customer's use or engagement with any such Third-Party Service. Accordingly, Customer acknowledges and agrees that it bears full responsibility for use of any Third-Party Service in accordance with (i) the terms and conditions of the applicable Third-Party Service provider, and (ii) any other legal or regulatory requirements. Braintrust will not be responsible or liable to Customer or Third-Party Service (as applicable) for any loss, damage, expense, liability, or costs Customer or Third-Party Service (as applicable) suffers or incurs arising from Customer's use of any Third-Party Service or failure of any Third-Party Service to operate correctly.

12. Term; Termination

This Agreement shall commence upon the date of the first Order, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Terms. For each Order, unless otherwise specified therein, the "Order Term" shall begin as of the effective date set forth on such Order and, unless earlier terminated as set forth herein, shall continue on a month-to-month basis unless and until either party provides at least thirty (30) day notice of termination (the "Order Term"). In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Braintrust may suspend or limit Customer's access to or use of the Service if (i) Customer's account is more than sixty (60) days past due, or (ii) Customer's use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Braintrust's ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) Braintrust shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Braintrust shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) Braintrust shall reinstate Customer's use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. For clarity, any services provided by Braintrust to Customer, including any assistance in exporting the Customer Data, shall be billable at Braintrust's standard rates then in effect.

13. Indemnification

Each party ("Indemnitor") shall defend, indemnify, and hold harmless the other party, its affiliates and each of their respective employees, contractors, directors, suppliers and representatives (collectively, the "Indemnitee") from all losses, liabilities, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys' fees) ("Losses"), that arise from or relate to any claim by such third party that (i) the Customer Data or Customer's use of any Third-Party Service (in the case of Customer as Indemnitor), or (ii) the Service (in the case of Braintrust as Indemnitor), infringes, violates, or misappropriates any intellectual property or proprietary right of such third party; provided that the Indemnitee providing the Indemnitor with: (x) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (y) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (z) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor's expense). The foregoing obligations of Braintrust do not apply (A) with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (1) not created or provided by Braintrust (including without limitation any Customer Data), (2) made in whole or in part in accordance to Customer specifications, (3) modified after delivery by Braintrust, (4) combined with other products, processes or materials not provided by Braintrust (where the alleged Losses arise from or relate to such combination), (B) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (C) to the extent Losses arise from Customer's breach of this Agreement.

14. Disclaimer

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE" AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

15. Limitation of Liability

EXCEPT FOR THE PARTIES' INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER'S BREACH OF THE SECTION ENTITLED "RESTRICTIONS", IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO BRAINTRUST HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.

16. Miscellaneous

This Agreement (including all Orders) represents the entire agreement between Customer and Braintrust with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Braintrust with respect thereto. In the event of any conflict between these Terms and an Order, the Order shall control. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party's reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party's consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party's business relating to this Agreement, and (ii) Braintrust may utilize subcontractors in the performance of its obligations hereunder. Customer agrees that Braintrust may use Customer's name and logo to refer to Customer as a customer of Braintrust on its website and in marketing materials. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys' fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party's rights with respect to such breach or any subsequent breaches.