Effective date: April 6, 2022

Master Services Agreement

    These Cortico Terms of Service (“Terms”) are incorporated into and made part of the Agreement and Work Order Forms (each, a “Work Order”). These Terms and the Work Orders govern your use and access to our websites, application, and services. In the event of any conflict between the Terms and a Work Order, the applicable Work Order shall govern to the extent of such conflict.  All capitalized terms not defined herein will have the meanings ascribed to them in the Work Order. 

1 – Services.

a. General. Subject to the Partner’s compliance with the terms and conditions of this Agreement, the applicable Work Order and the Terms, Cortico grants Partner a nonexclusive, limited, personal, nonsublicensable, nontransferable right and license to access and use the Cortico platform, products services and applications (collectively, the “Services”) during the term as set forth in Section 2.  Cortico reserves the right, in its sole discretion, to make any change to the Services that it deems necessary or desirable to: (i) maintain or enhance (A) the quality or delivery of its Services to its customers, (B) the competitive strength of or market for its Services or (C) the its cost efficiency or performance; provided that such changes do not have a material adverse impact on the performance of the Services or (ii) to comply with applicable laws and regulations.  There are no implied licenses under these Terms and Cortico and its licensors reserve all rights, title and interest in and to the Services not expressly granted to Partner in these Terms or applicable Work Order.

b. Authorized Users.  Subject to the terms and conditions of this Agreement, Partner shall have the right to authorize its authorized users to access and use the Services.  All such access and use of the Services are restricted to the terms of this Agreement. Partner shall use commercially reasonable efforts to ensure that each authorized user complies with all applicable obligations and restrictions imposed on Partner under this Agreement.  Any breach of any obligations and restrictions imposed on Partner under this Agreement by any authorized user shall be deemed a breach by Partner of this Agreement, and Partner shall be responsible and liable for any such breach by any authorized user.

2 – Term and Termination. 

a. Term/Termination.  The term of this Agreement shall commence on the Effective Date specified in the Work Order and, unless otherwise specified in the Work Order, shall continue for an initial term of [one year] (the “Initial Term”). The Work Order shall automatically renew for additional successive terms of one (1) year (each, a “Renewal Term”) unless either party provides the other with written notice of its intent not to renew at least ninety (90) days prior to the end of the then-current Term.  The Initial Term and all Renewal Terms are collectively referred to herein as the “Term”.  Either party may terminate this Agreement if the other party fails to perform its obligations hereunder and such failure to perform is not cured within thirty (30) days following written notice from the complaining party of such failure to perform.  Each party shall also have the right to terminate this Agreement or a Work Order for any reason or no reason, at any time, upon at least sixty (60) days written notice delivered to the other party.  Without limiting the foregoing, Cortico may suspend or limit Partner’s access to or use of the Services if (i) Partner’s account is more than sixty (60) days past due, or (ii) Partner’s use of the Services results in (or is reasonably likely to result in) damage to or material degradation of the Services which interferes with Cortico’s ability to provide access to the Services to other customers

b. Effects of Termination. Upon expiration or termination for any reason of this Agreement or an Work Order, Partner shall immediately cease all use of the Services, and at the request of Cortico, promptly return to Cortico or destroy all documents and materials containing Cortico Confidential Information.  Upon expiration or termination for any reason of this Agreement or an Work Order, Partner will continue to be responsible for payment of any unpaid amounts due under this Agreement and any Work Orders, and Cortico will deliver to Partner all Partner data that has not yet been previously delivered.  All remedies for breaches of this Agreement, and all sections of this Agreement which by their nature should survive termination, will survive termination, including without limitation Sections 3, 6, 7, 8, 10, 11, 12, 13 and this Section 2.

3 – Fees/Payment. Partner shall pay Cortico fees for the Services as set forth in each Work Order (“Fees”).  Unless otherwise specified in the applicable Work 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.  Partner shall be responsible for all taxes associated with Services (excluding taxes based on Cortico’s net income).  All Fees paid are non-refundable and are not subject to set-off. If Partner exceeds any user or usage limitations set forth on an Work Order, then (a) Cortico shall invoice Partner for such additional users or usage at the overage rates set forth on the Work Order (or if no overage rates are set forth on the Work Order, at Cortico’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Work Order Initial Term or then-current Work Order Renewal Term (as applicable), and (b) if such Work Order is renewed, such renewal shall include the additional fees for such excess users and usage. 

4 – Representations and Warranties.  

If Deliverables are specified in a Work Order, Cortico agrees to use reasonable commercial efforts to complete the Cortico Deliverables as described in each Work Order in a professional and workmanlike manner. Partner represents and warrants that (i) it has the full right to provide Cortico with the assignments and rights provided for herein and (ii) it will fully comply with applicable laws, regulations, and government orders, including without limitation, privacy laws and regulations (such as, the General Data Protection Regulation, California Consumer Privacy Act and the Children’s Online Privacy Protection Act) in connection with its collection, retention and use of all recordings, transcript or data that it may upload to the Cortico Fora platform (collectively, “Partner Consents”). Partner agrees that in providing the Services and performing services under this Agreement, Cortico (a) will use and rely primarily on the Partner Consents and (b) does not assume any responsibility for the accuracy or completeness of any Partner Consents, and will not undertake to verify its accuracy or completeness.  

Partner will not and will not allow a third party to:  (i) decompile, reverse engineer, disassemble or otherwise attempt to derive, analyze or use any source code or underlying ideas or algorithms related to the Services or Deliverables by any means whatsoever (except to the extent that such restrictions are prohibited by applicable statutory law); (ii) remove or alter any copyright or other notices; (iii) use or allow the use of the Services or Deliverables by or for the benefit of third parties, including without limitation by renting, leasing, lending, timesharing, or using for service bureau purposes; (iv) except as specified in documentation provided by Cortico, incorporate into or with other software any part of the Services or Deliverables; or (v) sell, distribute, translate or market the Services or Deliverables.  Partner agrees to ensure that there is no breach, compromise or violation, by Partner employees, consultants, or independent contractors, of such obligations.  Partner shall be responsible for any breach, compromise or violation of this Agreement by any employees, consultants or independent contractors of Partner.

5 – Publicity; Video and Photo Release.  Any public announcements through press releases, media advisories, media alerts or other similar, press-related means regarding this Agreement or the work of the Parties hereunder shall require the prior written approval of the Parties hereto prior to such announcements.  Named intentions to share publicity related to conversations associated with this Agreement shall be considered prior written approval. Partner agrees to grant and hereby grants Cortico the right to use, reproduce, display, modify, manipulate or otherwise exploit Partner’s company name and logo as a reference for marketing or promotional purposes on Cortico’s website, in public announcements (such as press releases, media advisories, media alerts or other similar, press-related channels) and in other public or private communication with existing or potential Cortico Partners. Partner agrees to grant and hereby grants Cortico the irrevocable right to use, reproduce, display, modify, manipulate or otherwise exploit from each Statement of Work: (i) photograph(s) of individuals (“Photos”); (ii) images and voices portrayed or recorded on videos  (“Videos”), including without limitation, the video segments and testimonials recorded by Cortico; and/or (iii) names, portraits, likenesses and the transcripts of any statements, quotes, endorsements and testimonials made in Videos in all forms and in all media and in all manners now known or hereafter created, including any composite or distorted representations of the same for any lawful purpose in connection with the Services

6 – Support and Implementation; Other Efforts. Upon payment of all applicable Fees, Cortico agrees to use reasonable commercial efforts to provide standard implementation assistance only if and to the extent such assistance is expressly set forth on the applicable Work Order.  Such additional efforts shall be separately agreed upon, in writing and mutually executed, by the Parties and will be made a part of this Agreement. If Cortico provides any implementation assistance in excess of any agreed-upon hours estimate or otherwise provides additional services beyond those agreed in a Work Order, Partner shall pay Cortico at its then-current hourly rates for consultation.

7 – Intellectual Property. 

a. The Parties acknowledge each other’s ownership of their respective names and logos, the names and logos of their programs and initiatives (collectively, the “Marks”).  This Agreement shall not be construed to grant any license to use the Marks without the prior written consent of the other party.  Any and all requests for use of a party’s Marks shall be submitted to the other party and will require its written approval prior to any such use.

b. Cortico Data.  During the course of this Agreement, Cortico may provide Partner with access to certain data, including but not limited to recordings and transcripts from Cortico’s Fora platform, data collected by Cortico in connection therewith, and data analysis of the conversation data on the Fora platform for the purposes set forth in this Agreement (“Cortico Data”). For the avoidance of doubt, Cortico Data does not include Partner Data (as defined below). The Parties agree that any such Cortico Data is owned by Cortico and that Cortico retains all rights, title and interests therein, and that (i) access to any recordings and transcripts provided to Partner from Cortico’s Fora platform is being provided to Partner under a Creative Commons Attribution (CC-BY 4.0) license and should be attributed to “Fora”, and (ii) any other Cortico Data is being provided under a revocable, non-transferable license and that Partner, including its employees, agents, and contractors, will not store, copy, analyze, monitor, or otherwise use the Cortico Data except for purposes set forth in this Agreement and applicable Work Orders. Partner will fully comply with applicable laws, regulations, and government orders relating to personally identifiable information and data privacy in connection with its use of the Cortico Data. 

c. Partner Data.  Cortico acknowledges that as between Cortico and Partner, Partner retains all rights in any recordings, transcripts or data that are processed, captured or analyzed by Cortico’s Fora platform solely in connection with the attached Work Order(s) (“Partner Data”). Partner agrees to grant, and hereby grants, a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to Cortico to use the Partner Data for the purposes of providing implementation and support, improving the Services and conducting Cortico mission-aligned internal research. 

8 – Confidentiality.  

a. During the course of this Agreement, each party (“Discloser”) may disclose sensitive information to the other (“Recipient”), or one party may otherwise learn of Confidential Information belonging to the other party.  “Confidential Information” means any and all confidential or proprietary information disclosed to or otherwise received by the Recipient pursuant to this Agreement that is marked or otherwise identified as proprietary or confidential at the time of disclosure, or that by its nature would be understood by a reasonable person to be proprietary or confidential, and includes, without limitation, all products, patents, trademarks, copyrights, trade secrets, processes, techniques, scientific information, computer programs, databases, software, services, research, development, inventions, financial, purchasing, accounting, marketing, fundraising and other information and all copies, and derivatives thereof, whenever conceived, originated, discovered or developed, concerning any aspect of its business, whether or not in written or tangible form; provided, however, that the term “Confidential Information” shall not include information (i) which is or becomes generally available to the public without violation of this Agreement by Recipient, (ii) is rightfully disclosed to Recipient without restriction by a third party with respect to such information, (iii) which was independently developed without use of or reference to the Confidential Information or (iv) which was rightfully known to a party prior to entering into this Agreement without restriction before receipt from Discloser. Discloser represents and warrants to Recipient that it is authorized to disclose any and all Confidential Information made available to Recipient under this Agreement.

b. Except as otherwise provided herein: (i) the Parties shall hold in strictest confidence any of the other party’s Confidential Information; (ii) the Parties shall restrict access to the Confidential Information to those of their personnel with a need to know and engaged in a permitted use of the Confidential Information, and are bound by confidentiality obligations at least as restrictive as those set forth in this Agreement; (iii) the Parties shall not distribute, disclose or convey Confidential Information to any third party; (iv) the Parties shall not copy or reproduce any Confidential Information except as reasonably necessary to perform any obligations hereunder; and (v) the Parties shall not make use of any Confidential Information for its own benefit or for the benefit of any third party.  The foregoing to the contrary notwithstanding, the Parties shall not be in violation of this subsection in the event that a party is legally compelled to disclose any of the Confidential Information, provided that in any such event the disclosing party will provide the other party with reasonably prompt written notice prior to any such disclosure so that the non-disclosing party may obtain a protective order or other confidential treatment for the Confidential Information, and in the event that a protective order or other remedy is not obtained by the non-disclosing party, the disclosing party will furnish only that portion of the Confidential Information which is legally required to be furnished.

9 – Warranties and Disclaimer. Except as otherwise expressly set forth herein, Cortico does not make any express or implied warranty, including without limitation, any warranty of merchantability, fitness for a particular purpose, noninfringement, integration, freedom from errors or warranties arising out of the course of dealing, course of performance, or usage in trade, in connection with any services or deliverables provided under this agreement or otherwise in connection with this agreement.

10 – Limited Liability. Except for bodily injury and breaches of confidentiality, Cortico will not be liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for (I) Any amounts in excess in the aggregate of the amounts paid to Cortico for the applicable service or deliverable at issue, (II) Any incidental, indirect, punitive, exemplary, reliance or consequential damages, (III) Matters beyond its reasonable control, or (IV) Cost of procurement of substitute goods, technology, or services even if Cortico has been advised of the possibility of such damages. These limitations shall apply notwithstanding the failure of the essential purpose of any remedy. 

11 – Waiver. Any waiver granted by a party hereto shall be without prejudice to any other rights such party may have, will be subject to such party’s continuing review and may be revoked, in such party’s sole discretion, at any time and for any reason.  No party shall be deemed to have waived any right, power or option reserved by this Agreement by virtue of: any custom or practice of the Parties at variance with the terms hereof; any failure, refusal or neglect of the Parties to exercise any right under this Agreement or to insist upon exact compliance by the other with its obligations hereunder.

12 – Notice.  All notices and requests in connection with this Agreement shall be given to the parties via certified mail, return receipt requested, by recognized overnight delivery service, by facsimile, or by hand, at the addresses set forth in the Work Order Form.  All notices and requests shall be deemed given the earlier of seven (7) days after duly deposited in the mails properly addressed with postage prepaid, or when actually received.

13 – Force Majeure.  Neither party shall be liable to the other party nor be deemed to have breached this Agreement for any delay in or failure of performance if such delay or failure arises from any event beyond the reasonable control of the affected party, including but not limited to fire, floods, embargoes, war, acts of war (whether war be declared or not), acts of terrorism, insurrections, riots, civil commotions, strikes, lockouts or other labor disturbances, acts of God, pandemics or epidemics, (“Force Majeure Event”), provided that when a Force Majeure Event occurs, the affected party shall promptly give written notice thereof to the other party.

14 – Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

15 – General. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties concerning the subject matter hereof.  Any modification of the terms and conditions within a Work Order is effective only is signed in writing by both parties and will apply only to the Work Order in which the modification is set forth.  Partner shall not assign or transfer, or purport to assign or transfer, any of its rights or obligations under this Agreement without the prior written consent of Cortico.  This Agreement is for the sole benefit of the parties hereto and their successors and permitted assigns and nothing herein, express or implied, is intended to or shall create any third party beneficiaries, unless otherwise expressly provided in this Agreement.  This Agreement shall be governed by the substantive laws of the State of Massachusetts, which shall prevail in the event of any conflict of law.  If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable.  This Agreement may be executed in counterparts, each of which shall be deemed an original but which together shall constitute one and the same instrument. Signatures on an electronic image (such as .PDF), and electronic signatures will be deemed to be original signatures.