MSA

THIS MAIN SERVICES AGREEMENT (hereinafter referred to as the “MSA”) governs Customer’s use of and access to the Services (as defined below) of Ujwal, Inc., a Delaware corporation doing business as Level AI, having its principal place of business located at 444 Castro Street, Suite 305, Mountain View, CA 94041 (hereinafter referred to as “Level AI”). By signing or electronically accepting an Order Form that references this MSA, Customer accepts this MSA and agrees to its terms and conditions. “Customer” means the entity or individual identified on the applicable Order Form. Level AI and Customer may be referred to individually as a “Party” and collectively as the “Parties.” This MSA is effective upon the Parties’ execution of an Order Form that references this MSA (“MSA Effective Date”).

Each Order Form (“Order Form”) and Statement of Work (“SOW”) that is entered into by the Parties subject to this MSA, is incorporated herein by reference. The MSA, the Order Form(s), and the SOW(s) are referred to herein collectively as the “Agreement.”

1. Services.
   1. Subject to the terms of this Agreement, Level AI will provide to Customer the SaaS Services, Professional Services, and Support Services, each as defined in the applicable Order Form(s) (collectively, the “Services”).
   2. Capitalized terms not defined in this Agreement will have the meaning given to them in the applicable Order Form and/or the SOW.
2. Restrictions and Responsibilities.
   1. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble the Services or any software, documentation or data related to the Services (collectively, “Software”); modify or create derivative works based on the Services or any Software (except to the extent expressly permitted by Level AI); use the Services or any Software for timesharing or subscription services for the benefit of a third party; remove any proprietary notices or labels; or access the Services for competitive purposes. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Level AI hereby grants Customer and its authorized users a non-exclusive, non-transferable, non-sublicensable license to use such Software during the applicable Order Term only in connection with the Services.
   2. Customer will: (i) be responsible for its authorized users’ compliance with the Agreement; (ii) be responsible for the accuracy, quality, legality, and means by which Customer acquired Customer Data, except to the extent that such Customer Data was first collected by or generated by Level AI; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services; (iv) be responsible for maintaining the security of its equipment and account credentials (including but not limited to administrative and user passwords); and (v) use the Services only in compliance with all applicable laws, regulations, and Level AI’s standard published policies then in effect. Level AI may monitor Customer’s use of the Services and prohibit any use of the Services it reasonably believes to be in violation of the foregoing.
3. Confidentiality.
   1. A Party that receives Confidential Information (the “Receiving Party”) of the other Party (the “Disclosing Party”) under this Agreement agrees to take reasonable precautions to protect such Confidential Information and to not disclose such Confidential Information to any third party or use any of the Confidential Information, except for the purpose of performing the Receiving Party’s obligations hereunder or exercising the Receiving Party’s rights hereunder, provided that such third party is bound by confidentiality provisions at least as restrictive as the provisions in this Agreement. “Confidential Information” means information about the Disclosing Party’s business affairs, products, services, trade secrets, pricing, third-party confidential information and other sensitive or proprietary information. Upon termination of the Agreement, the Receiving Party shall, upon the Disclosing Party’s request, destroy or return, all Confidential Information in its possession.
   2. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by law, regulation, court order, or other legal process, provided that: (i) the Receiving Party gives the Disclosing Party prompt written notice of such requirement prior to disclosure, to the extent permitted by law; (ii) the Receiving Party cooperates with the Disclosing Party’s reasonable efforts to limit such disclosure or to obtain a protective order; and (iii) any disclosure is limited to only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
   3. Confidential Information does not include information that: (i) was rightfully in the Receiving Party’s possession or known to it prior to receipt of the information under this Agreement; (ii) is or has become generally available to the public through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the Receiving Party.
4. Data; Proprietary Rights.
   1. Customer owns and retains all right, title, and interest in data and information provided by Customer to Level AI or otherwise collected or received by Level AI on behalf of Customer to enable the provision of the Services (“Customer Data”). Customer hereby grants to Level AI a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and use and display the Customer Data solely to the extent necessary for Level AI to provide the Services to Customer. Level AI shall own and retain all right, title and interest in and to (i) the Services and Software, all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with Professional Services or Support Services, and (iii) all intellectual property rights related to any of the foregoing.
   2. Notwithstanding anything to the contrary in this Agreement, Level AI may monitor Customer’s and third parties’ use of the Services and collect and compile Aggregated Statistics. “Aggregated Statistics” means data and information related to such use, that is used by Level AI in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services. For the avoidance of doubt, Aggregated Statistics do not include any information subject to individual privacy rights such as personal information, personal data, and personal health information or any information that could be used to identify Customer, Customer’s customers, or Customer’s authorized users. As between Level AI and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Level AI and Level AI may use and disclose Aggregated Statistics to the extent permitted under applicable law.
   3. To the extent Level AI creates any Customer-specific instances of its artificial intelligence models, Level AI shall delete such models upon expiration or termination of the Agreement. Level AI represents that it has used commercially reasonable efforts to ensure that its artificial intelligence models are not subject to inappropriate bias.
   4. Level AI shall implement and maintain appropriate technical and organizational measures to protect Customer Data from unauthorized or unlawful processing, accidental loss, destruction, or damage (the “Data Safeguarding Requirement”).
5. Payment of Fees.
   1. Customer will pay Level AI the fees described in the applicable Order Form(s) for the Services (the “Fees”).
   2. Fees will be invoiced and due according to the applicable Order Form. Unless otherwise provided in the applicable Order Form, full payment for invoices must be received by Level AI within thirty (30) days after the mailing date of the invoice. Customer shall be responsible for all taxes associated with the Services other than U.S. taxes based on Level AI’s net income.
   3. The “service capacity” or “quantity” set forth in the applicable Order Form (“Service Capacity”), with respect to the features of the Services subject to license fees (e.g. Quality Management System, Conversation Intelligence) is the number of Customer agents authorized to access the applicable feature(s) of the Service.
   4. If Customer exceeds the Service Capacity for any feature of the Services (a “Service Capacity Overage”), Level AI shall invoice Customer for such Service Capacity Overages, in arrears, at the end of each quarter of the applicable contract year (“Quarter”), in the amount of: (A) the monthly Base Unit Cost for the applicable Service (excluding any discounts set forth on the Order Form), multiplied by (B) the sum of monthly Service Capacity Overages during such Quarter (“Service Capacity Overage Fees”).
   5. On or about the end of each Quarter, Level AI shall provide notice to Customer, by email or during a business review meeting, of Customer’s usage of Services and any overages or credits resulting therefrom. In the event of Service Capacity Overage Fees arising from such Quarter, Customer shall have the option to purchase additional Service Capacity at the Discounted Unit Cost set forth in the Order Form (“Strategic Add-On”) in lieu of paying such Service Capacity Overage Fees. A Strategic Add-On purchase, shall be invoiced in advance and shall increase the applicable Service Capacity for the then-ending Quarter and for the remainder of the Order Term.
   6. In the event of any overages with respect to the capacity for Transcription or Translation (“Consumption Capacity Overages”) beyond the capacities set forth in the Order Form, Level AI shall invoice Customer for such Consumption Capacity Overages, in arrears, at the end of each Quarter at the Unit Cost listed on the Order Form.
6. Term and Termination.
   1. Subject to earlier termination as provided below, this MSA commences on the MSA Effective Date and continues until the expiration or termination of all Order Forms, unless terminated sooner in accordance with the provisions herein.
   2. Each Order Form shall commence on the Order Form Effective Date (as defined therein) and shall continue until expiration of such Order Form’s Initial Subscription Term (as defined therein) and any Renewal Terms, unless terminated sooner in accordance with the provisions of the Agreement (the “Order Term”). Unless otherwise set forth in the Order Form, each Order Form shall renew automatically for additional one (1) year periods (each a “Renewal Term”), unless either Party gives the other Party written notice of termination at least thirty (30) days prior to the end of the then-current term. For any Renewal Term, Customer shall pay to Level AI the Fees associated with the preceding term excluding discounts identified as “one-time,” “special,” “promotional,” “trial periods,” “evaluation periods,” or “free periods” and excluding one-time Professional Services Fees, provided that Level AI may increase the Fees for such Renewal Term in an amount up to five percent (5%) for each year of the then current Order Term by providing Customer written notice of such increase at least forty-five (45) days prior to the end of the then current Order Term.
   3. In addition to any other remedies it may have, either Party may also terminate this MSA or any Order Form upon thirty (30) days’ notice, if the other Party materially breaches any of the terms or conditions of this Agreement and: (i) such breach is incapable of cure; or (ii) if such breach is capable of cure, the breaching Party fails to cure such breach within thirty (30) days’ notice thereof. Termination of this MSA will automatically terminate all Order Forms. Upon termination of this MSA, Level AI will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Level AI will delete stored Customer Data. All sections of this Agreement that, in order to give proper effect to their intent, should survive expiration or termination, will survive the expiration or earlier termination of this Agreement.
7. Warranty and Disclaimer.
   1. Level AI warrants that: (i) it shall perform the Professional Services in a professional and workmanlike manner; (ii) it shall perform the Support Services in material conformance with the Service Level Agreement set forth in Exhibit A (the “SLA”); (iii) that the SaaS Services shall conform in all material respects to the then current Documentation (as defined in the Order Form) and the SLA; and (iv) Level AI will not materially decrease the overall security or functionality of the Services. Customer’s sole and exclusive remedy, and Level AI’s entire liability, for any breach of the warranties set forth in this Section 7 shall be, at Level AI’s option, for Level AI to: (i) repair or replace the defective Services within a reasonable period of time, or (ii) terminate the Order Form and refund to Customer any pre-paid fees for the defective Services covering the remainder of the Order Term after the date of termination. Level AI further warrants that, the Services do not infringe upon or violate any intellectual property rights of any third party, provided, Customer’s sole and exclusive remedy for this warranty shall be as set forth in Section 8 of this Agreement (Indemnity). LEVEL AI DOES NOT WARRANT THAT THE SERVICES WILL INTEROPERATE WITH ANY THIRD-PARTY SERVICES OR WILL BE UNINTERRUPTED OR ERROR FREE (EXCEPT AS SET FORTH IN THE SLA). LEVEL AI DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, LEVEL AI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Indemnity.
   1. Level AI shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”): (i) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights (an “IP Claim”); (ii) arising out of Level AI’s breach of its confidentiality obligations under this Agreement; (iii) arising out of Level AI’s breach of the Data Safeguarding Requirement; (iv) arising out of Level AI’s violation of applicable laws or regulations in connection with the performance of the Services; and (v) arising out of Level AI’s gross negligence or willful misconduct. The foregoing obligations do not apply to an IP Claim to the extent that the alleged infringement arises from: (A) Customer’s use of the Services in combination with data, software, hardware, equipment, or technology not provided by Level AI or authorized by Level AI in writing; (B) modifications to the Services made or authorized by Customer; or (C) Customer Data (collectively, the “IP Exclusions”). If, due to an IP Claim, the Services are held by a court of competent jurisdiction to be or are believed by Level AI to be infringing, Level AI 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 Service, or (c) if neither of the foregoing is commercially reasonable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for Services not yet rendered.
   2. Customer shall indemnify, defend, and hold harmless Level AI from and against any and all Losses incurred by Level AI resulting from any Third-Party Claim: (i) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, violates a third party’s privacy rights; (ii) arising out of Customer’s breach of Section 2 (Restrictions and Responsibilities); and (iii) of infringement arising from the IP Exclusions.
   3. The indemnitee shall promptly notify the indemnitor in writing of any claim, action, or proceeding for which indemnification is sought under this Agreement and allow the indemnitor to control the defense and settlement of the claim, provided that no settlement that imposes any liability or obligation on the indemnitee shall be made without the indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. Failure to give prompt notice shall not relieve the indemnitor of its indemnification obligations except to the extent that the indemnitor is materially prejudiced by such failure.
9. Limitation of Liability.
   1. EXCEPT FOR THE EXCLUSIONS (AS DEFINED BELOW), NEITHER PARTY NOR ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS OR EMPLOYEES SHALL 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: (A) 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; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO LEVEL AI FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. “EXCLUSIONS” MEANS, EACH PARTY’S INDEMNIFICATION OBLIGATIONS, A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER, CUSTOMER’S BREACH OF SECTION 2 (RESTRICTIONS AND RESPONSIBILITIES); AND LEVEL AI’S BREACH OF THE DATA SAFEGUARDING REQUIREMENT. WITH RESPECT TO THE EXCLUSIONS, NEITHER PARTY NOR ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS OR EMPLOYEES SHALL BE RESPONSIBLE OR LIABILE FOR AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THREE-TIMES (3X) THE FEES PAID BY CUSTOMER TO LEVEL AI FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
   2. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF LIABILITY WILL APPLY TO A PARTY’S GROSS NEGLIGENCE, A PARTY’S WILLFUL MISCONDUCT, CUSTOMER’S OBLIGATION TO PAY FEES, OR LEVEL AI’S INDEMNIFICATION OBLIGATIONS FOR IP CLAIMS.
10. Marketing.
    1. Subject to Customer’s prior written consent, not to be unreasonably withheld, Level AI may identify Customer as a customer of Level AI, including by displaying Customer’s logo in Level AI’s marketing materials.
11. Miscellaneous.
    1. Level AI reserves the right to make modifications to the Services, provided that such modifications do not materially decrease the overall security or functionality of the Services. 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 be enforceable. This Agreement is not assignable, transferable or sublicensable, except with the other Party’s prior written consent, provided that either Party may assign this Agreement without consent to any successor entity resulting from a change of control, merger, consolidation, or sale of all or substantially all of its assets. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All amendments, waivers, and modifications must be in 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 neither Party has authority to bind the other Party in any respect whatsoever. Neither Party shall be liable for any failure or delay in performing its obligations under this Agreement due to causes beyond its reasonable control, including but not limited to acts of God, war, terrorism, pandemic, natural disasters, governmental actions, or failure of third-party suppliers, provided that the affected Party uses reasonable efforts to mitigate the effects of such force majeure event. 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 must be in writing, delivered to the notice addresses set forth in the Order Form, and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by 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 provision. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Santa Clara County, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

EXHIBIT A

Service Level Agreement

1. Uptime commitment. Level AI provides a commitment that the services will be available for either 99.9%, for those purchasing the Standard Platform, or 99.95%, for those purchasing the Enterprise Platform (“Uptime Commitment”).

1.1 For the purpose of this Uptime Commitment, “unavailability” means that the Services are not accessible or usable by Customer for a period of at least three (3) minutes. Notwithstanding the foregoing, the following circumstances shall not be considered unavailability for purposes of the Uptime Commitment: (A) planned downtime, which shall be any period for which Level AI gives at least seven (7) days’ notice that the SaaS Services will be unavailable (“Planned Downtime”); provided, that any such Planned Downtime shall be scheduled not more than once a month, not longer than 3 hours, and at a time after 5:00pm PT and before 3:00am PT; (B) any unavailability caused by circumstances beyond Level AI’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those specifically related to Level AI employees), or the unavailability of internet service providers; and (C) any unavailability caused by Customer’s systems. For the avoidance of doubt, this Uptime Commitment does not cover data import services delivered by third-party providers.

2. Service Credits. In the event Level AI fails to meet the Uptime Commitment, Level AI shall provide to Customer service credits according to the table below (as a % of the license fees payable to Level AI for the affected month):

3. Service Availability Report. Within thirty (30) days after the end of each calendar month in which Level AI fails the Uptime Commitment, Level AI shall provide to Customer a report describing the availability during that calendar month.

4. Support Service Level Requirements. Level AI will provide Customer with ongoing support (“Support Services”), including (i) email support via [email protected] and (ii) real-time Slack support over a dedicated channel. Level AI support will be available twenty-four (24) hours a day, seven (7) days a week for P1 support and twenty-four (24) hours a day, five (5) days a week (excluding holidays) for P2, P3, and P4 (the “Support Hours” or “Support Days” as applicable). Customer shall classify its requests for Service Error (as defined below) corrections in accordance with the descriptions set forth in the chart below (each a “Support Request”), provided that Level AI may re-classify Support Requests in its reasonable discretion, upon notice to Customer. Level AI shall respond to and resolve all Support Requests in accordance with the required times set forth in subsection 4.2 below (Response and Resolution Service Levels). “Service Error” means any failure of the SaaS Services to be available or otherwise perform in accordance with this Agreement.

4.1 Support Requests. Customer shall notify Level AI of Support Requests by email, telephone, or such other means as the Parties may hereafter agree to in writing.

4.2 Response and Resolution Service Levels. Response times will be measured from the time Level AI receives a Support Request until the time Level AI responds as provided in the table below. Resolution times will be measured from the time Level AI receives a Support Request until the time Level AI resolves the Support Request as provided in the table below.

5. Escalation Procedures. In the event that a P1, P2, or P3 Support Request is not being handled within the required times, then Customer may escalate the Support Request to Sumeet Khullar (email: [email protected]).

6. Termination. Customer may terminate the Agreement for material breach if: (i) Level AI fails to meet its Uptime Commitments in three (3) consecutive months or five (5) months in a rolling twelve (12) month period; or (ii) Level AI fails to resolve a P1 Service Error within the required Resolution Time, three (3) times in a rolling five (5) month period.

7. Disaster Recovery. Level AI shall, in accordance with the provisions of this section, maintain or cause to be maintained disaster avoidance procedures designed to safeguard the Customer Data and Customer’s other Confidential Information, Level AI’s processing capability, and the availability of the SaaS Services, throughout the applicable Order Term. The force majeure provisions of the MSA shall not limit Level AI’s obligations under this section.

8. Service Credits. The Service Level Credits and termination rights set forth herein are Customer’s exclusive remedies for Level AI’s failure to meet the Uptime Commitment and Response and Resolution Service Levels set forth in this Service Level Agreement.