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Lilt GSA Federal Government Customer MSA

Lilt GSA Federal Government Customer MSA

THIS MASTER SERVICES AGREEMENT COLLECTIVELY WITH ANY SCHEDULES AND RELATED ORDER FORMS(the “Agreement”) GOVERNS CUSTOMER’S RECEIPT AND USE OF LILT, INC.’S (“Lilt”) SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.

BY (A) CLICKING A BOX INDICATING ACCEPTANCE OR TAKING SOME OTHER, SIMILAR ACTION TO INDICATE ACCEPTANCE, (B) EXECUTING AN ORDERING DOCUMENT THAT REFERENCES THIS AGREEMENT, OR (C) RECEIVING THE SERVICES, THE ENTITY AUTHORIZED TO ORDER UNDER GSA SCHEDULE CONTRACTS AS DEFINED IN GSA ORDER OGP 4800.21, AS MAY BE REVISED FROM TIME TO TIME (“Customer”) AGREES TO THE TERMS OF THIS AGREEMENT.

THE INDIVIDUAL ACCEPTING THIS AGREEMENT REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR THE APPLICABLY ENTITY DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE OR RECEIVE THE SERVICES.

In consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. SERVICES.

1.1 Services. Lilt will provide Customer the access to Lilt’s web-based software (“Software”) and certain translation services (“Translation Services”) in accordance with the terms and conditions of this Agreement and as the described in more detail in one or more order forms (“Order Form(s)”) agreed to by both Lilt and Customer. The agreed form of Order Form is attached as Exhibit A to this Agreement. With respect to Customer, each Order Form is a separate obligation of the Customer entities or entity that execute(s) such Order Form and no other Customer entity has any obligation under such Order Form. Any conflict between the terms of this Agreement and an Order Form will be resolved in favor of the Agreement unless the Order Form explicitly states that it is intended to modify or supersede the conflicting terms of this Agreement. This Agreement does not obligate Customer to engage Lilt to perform any Translation Services, or Lilt to perform any Translation Services, until both parties have signed an Order Form and then only for the Translation Services specified in the Order Form. Both parties must sign an Order Form for it to be effective. If Lilt commences Translation Services for Customer in the absence of an Order Form and Customer accepts such Translation Services, this Agreement will nevertheless apply, unless the parties otherwise mutually agree in writing.

2. FEES & EXPENSES

2.1 Fees. All fees to be paid by Customer (“Fees”) in connection with the Software and/or Translation Services during the Term shall be specified in the applicable Order Form. Unless otherwise provided in an Order Form, Hosted Services are purchased as subscriptions for the term specified in the Order Form.

2.2 Payments. Unless otherwise specified in an Order Form, Customer agrees to pay all amounts due in U.S. Dollars upon receipt of invoice. Payments shall be governed by the Prompt Payment Act.

2.3 Taxes. Unless otherwise agreed upon by the parties, Fees shall include all Federal, state and local taxes and duties applicable to Lilt.

2.4 Expenses. RESERVED

3. PROPRIETARY RIGHTS & LICENSES.

3.1 Deliverables and Work Product. Customer is and shall be, the sole and exclusive owner of all right, title, and interest throughout the world in and to all the results and proceeds of the Translation Services performed under this Agreement, including but not limited to any deliverables specifically set out in an Order Form (collectively, the "Deliverables"), including all patents, copyrights, trademarks, trade secrets, and other intellectual property rights (collectively "Intellectual Property Rights") therein. Lilt agrees that the Deliverables are hereby deemed a "work made for hire" as defined in 17 U.S.C. § 101 for Customer. If, for any reason, any of the Deliverables do not constitute a "work made for hire," Lilt hereby irrevocably assign to Customer, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein.

3.2 Customer Data. All customer data is owned by the customer. Customer retains all ownership, right, title and interest in and to Customer Data, including all Intellectual Property Rights therein. Customer grants Lilt a limited term license to copy, transmit and display such Customer Data, software and technology as necessary for Lilt to provide the Translation Services according to this Agreement. "Customer Data" means data in electronic form input or collected through the Software by or from Customer, including, without limitation, by Customer’s Users. Customer Data will secured and maintained on Customer-hosted infrastructure. All output from the Translation Services based on Customer Data and any and all resultant works and Deliverables thereof or based on or even derived from Customer Data are deemed the sole property of Customer, excluding for the avoidance of doubt any improvements to Lilt’s Software and/or Lilt IP, including but not limited to its AI model used to provide the Translation Services.

3.3 Lilt IP. Lilt shall be the sole and exclusive owner of all right, title and interest in Lilt IP. “Lilt IP” shall mean (i) the Software and any applications, databases, computer programs (including source code and object code for any such software, applications, databases, and programs), computers, communications networks, digital storage capacity, back up services, and other hardware, tools, methods, know-how, processes or procedures owned by Lilt prior to this Agreement or created by Lilt outside the scope of this Agreement but not including Deliverables to the ordering activity, and (ii) all proprietary or confidential data owned by Lilt and used with the Translation Services including all electronic data or information submitted by Lilt to Customer (“Lilt Data”) (including, without limitation, all modifications, changes upgrades or updates made to Lilt’s IP and/or owned processes, procedures and systems, even if incorporated into the Deliverables).

3.4 License to Lilt IP. To the extent Lilt IP is embodied in any Deliverables, Lilt hereby grants Customer a non-exclusive, worldwide, perpetual, irrevocable, fully paid up license to (a) use, make, have made, sell, offer to sell, reproduce, perform, display, distribute, and import such Lilt IP solely as necessary for Customer to use the Deliverables and (b) adapt, modify, and create derivative works of such Lilt IP solely as incorporated into the Deliverables.

3.5 Hosted Services. If Customer has purchased any hosted services (“Hosted Services”) from Lilt, Lilt grants to Customer a mutually agreed upon limited term, restrictive, nonexclusive, nontransferable, right to access and use the Hosted Services and Software solely for Customer's internal business purposes.

4. DATA & SECURITY

4.1 System Maintenance, Upgrades and Availability. With respect to the Software, Lilt’s support, response times and availability are specified in the Service Level Agreement, which is attached hereto as Schedule 1 and incorporated herein by reference. Lilt will provide such standard support to Customer without additional charge, and any additional support with price that is not awarded under the Master GSA Schedule shall be negotiated mutually agreed upon between the ordering activity and Licensor. Lilt, at its sole discretion, may provide and install any maintenance or updates or upgrades to the Hosted Services and Software that it deems necessary to facilitate its performance under this Agreement. Software and Hosted Services provided to Customer will include all such updates and upgrades that Lilt makes generally available to its Customers who subscribe to the same Software and Hosted Services during the term of this Agreement. Lilt may take the Software and/or Hosted Services offline immediately in the event Lilt reasonably perceives there is a security threat. Lilt will assign a key contact person for Customer to facilitate communication with Customer. This individual will have the authority to resolve Customer open issues quickly and will also coordinate the deployment of Customer resources to support the project as needed. Lilt will respond in a timely manner to requests by Customer regarding information requests and reviews of documents for feedback or sign-off.

4.2 Data Usage. Lilt may compile aggregated de-identified results or metrics from all or part of Customer's use of the Software and/or Translated Services, provided that such aggregated results will not contain information that could be used to individually identify Customer or any individuals authorized by Customer to use the Software who are issued a user id and password by Customer or Lilt (“Users”). Lilt shall use such aggregated data in non-personally identifiable form for the purposes of improving the Lilt service, for evaluating global trends for product development and marketing, for optimizing its performance or metrics, and as may be required for accounting or audit requirements, or by law. Such aggregated de-identified results shall be considered Lilt internal working Data only and may not be shareable outside of the Lilt company.

4.3 Customer Restrictions. The Customer may not, except as otherwise specified in this Agreement, (a) copy any of the Software or Hosted Services; (b) distribute, sell, rent, timeshare, license, sublicense or otherwise transfer or disclose, or transmit or allow the use of any of the Software or Hosted Services to any person or entity; (c) create any link to the Software or Hosted Services or frame or mirror any content contained in or accessible from the Software or Hosted Services; (d) willfully tamper with the security of any Customer account; (e) access any Software or Hosted Services in order to build a competitive product, or to compete with Lilt; (f) make the Software or Hosted Services available to, or use any Software or Hosted Services for the benefit of anyone other than Customer or its Users; (g) willfully render any part of the Software or Hosted Services unusable; or (h) use any of the Software, Hosted Services, or Translation Services for purposes not specified in this Agreement. The Customer shall not permit any other third-party access to the Software or Hosted Services nor permit any other third party to access or receive data or information from the Software or Hosted Services without express written permission from Lilt. Customer shall not violate any applicable local, state, federal or foreign law, treaty, regulation or convention in connection with its use of the Software, Hosted Services, or Translation Services.

4.4 Customer Obligations. Customer shall ensure its Users’ compliance with this Agreement and the Lilt Terms of Service and also for the accuracy, quality and legality of Customer Data, including reasonably safeguarding its network from threat of malicious malware and safe document downloads or accessing the Software. If any third-party hosting company or access provider that offers IT services such as a fully outsourced network management arrangements and storage to Lilt (Service Provider) notifies Lilt of a Customer activity that violates the Service Provider's acceptable use policy and which may result in immediate suspension of services to Lilt, Lilt may promptly notify Customer and may temporarily suspend Customer's access to the Software and Translation Services pending resolution of the issue. Customer is also responsible for its use of non-Lilt provided software and acknowledges that Lilt does not support or warrant such software, unless so specified in an Order Form. Customer will assign a Customer project lead that will be the key contact person to facilitate communication with Lilt. This individual will have the authority to resolve Customer open issues quickly and will also coordinate the deployment of Customer resources to support the project as needed. Customer will respond in a timely manner to requests by Lilt regarding information requests and reviews of documents for feedback or sign-off. Delays related to project tasks that are Customer's responsibility or Lilt's responsibility may impact timely completion of deliverables.

4.5 Compliance. If Lilt discovers a violation of Customer's obligations as set forth in this Section 4 or any of Customer’s Representations or Warranties set forth in Section 6.2, Lilt will provide Customer with written or emailed notification of the alleged violation which shall include sufficient details to allow Customer to understand the nature of the violation and, if reasonably possible, the identity of the Users alleged to have committed the violation. As soon as reasonably possible, but in any event within 72 hours after receipt of such notice, the parties will work in good faith to confirm whether or not a violation has occurred. If a violation has occurred and Customer agrees to cure the conduct giving rise to the violation, it shall do so expeditiously; otherwise, Lilt may suspend the Users committing the violation until the conduct giving rise to the violation is cured. Notwithstanding the foregoing, Lilt shall have the right to immediately suspend Customer's access to the Software and Translation Services in the event that Lilt, or its service provider, reasonably perceives a security threat related to Customer's account or activity that may cause harm to the Software.

5. CONFIDENTIALITY. Both Parties will maintain in confidence and safeguard all confidential information, as defined in this paragraph, of the other party and its affiliates for a period of five (5) years from the expiration or termination of this Agreement. “Confidential Information” means any information that is marked or otherwise identified as confidential or proprietary at the time of disclosure and includes, but is not limited to, trade secrets, know-how, inventions, techniques, data, customer lists, personal information, financial information, sales and marketing plans of the other party, its affiliates, or its customers. Both Parties recognize and acknowledge the confidential and proprietary nature of any Confidential Information and acknowledge the irreparable harm that could result if such Confidential Information is disclosed to a third party or used for unauthorized purposes. Each Party agrees to use any Confidential Information only for the purpose of conducting business with each other and their clients in the manner contemplated by this Agreement. Both Parties will restrict disclosures of any Confidential Information to only those personnel who have a need to know and will bind such personnel to obligations of confidentiality to the same extent that each Party is bound by this Agreement. Upon request of the owner of Confidential Information, the other party will promptly return all materials incorporating any Confidential Information and any copies. The obligations under this paragraph do not apply to information that: (i) is or becomes generally known or in the public domain through no act or omission of the other party; (ii) was lawfully in a Party’s possession without restriction as to use or disclosure before its receipt from the other party; (iii) is received from, or was made available to, a third party without any obligation of confidentiality; (iv) was independently developed; (v) is otherwise permitted to be disclosed under this Agreement; (vi) is disclosed with the prior written consent of the disclosing party; or (vii) is required to be disclosed in any civil or criminal legal proceeding, regulatory proceeding or any similar process, however, the party required to make the disclosure under the law shall give prompt notice of this to the other party prior to such disclosure so that the other party may seek an appropriate protective order or give its written consent to such disclosure.When the enduser is the Federal Government, neither this Agreement nor the pricing terms are confidential information notwithstanding any such markings.Lilt recognizes that Federal agencies are subject to the Freedom of Information Act, 5 U.S.C. 552, which requires that certain information be released, despite being characterized as “confidential” by the vendor.

6. TERM & TERMINATION

6.1 Term. The term of this Agreement begins on the Effective Date and continues until the expiration or termination of the latter of this Agreement or the expiration or termination of all Order Forms entered into under the Agreement, provided, however, that the term and any renewal of an Order Form will be as stated in the Order Form.

6.2 Termination. The parties’ respective termination rights shall be governed by applicable federal law, including the Federal Acquisition Regulation.

6.3 Effect of Termination. Upon termination or expiration, any and all subscriptions, usage rights, licenses and services granted under this Agreement shall immediately terminate. Upon termination, all undisputed fees earned but unpaid under any Order Form become due and payable in accordance with the parties’ awarded contract terms and conditions. If Customer has purchased Hosted Services, Customer will have 30 days after termination to (i) request Lilt to promptly return, at no cost to Customer, all or any part of Customer Data; (ii) request Lilt to erase or destroy any part of the Customer Data in its possession. Notwithstanding the foregoing, Lilt shall have the right to retain a copy of Customer Data for three years or, as long as required by government authorities, for purposes of complying with audit, reporting, or similar examination of Lilt records by such government authorities. Lilt shall destroy the Customer Data after it is no longer needed for these purposes and Lilt shall send Customer proof that such data was indeed destroyed.

7. REPRESENTATIONS & WARRANTIES

7.1 By Lilt. Lilt represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement, (b) no pending or threatened claim or litigation known to Lilt would have a material adverse impact on its ability to perform as required by this Agreement; and (c) any Translation Services provided under this Agreement shall be performed in a professional manner in accordance with the level of professional care customarily observed by highly skilled professionals rendering similar services and in accordance with the Service Level Agreement attached at Schedule 1 to this Agreement, (d) it shall maintain reasonable administrative, physical, organizational and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, and (e) it shall comply with all applicable laws, ordinances, statutes and regulations, regarding the privacy and security of Customer’s personal identifiable information. For any breach of these representations and warranties, Customer’s sole and exclusive remedy, and Lilt’s entire liability shall be the replacement of the Software and/or re-performance of the non-conforming Translation Services. Lilt shall only have liability for such breaches of warranty if Customer provides written notice of the breach to Lilt within ninety (90) days of the performance of the non-conforming Translation Services. THE WARRANTIES AND REMEDIES IN THIS SECTION ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT (OR OTHERWISE REQUIRED BY APPLICABLE LAW WITHOUT POSSIBILITY OF CONTRACTUAL WAIVER), LILT SOFTWARE AND TRANSLATION SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE,” AND LILT MAKES NO, AND DISCLAIMS ALL, WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE OR TRANSLATION SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, WHETHER SUCH WARRANTIES AND REPRESENTATIONS ARE EXPRESS OR IMPLIED IN FACT OR BY OPERATION OF LAW, OR OTHERWISE; INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON­INFRINGEMENT, UNINTERRUPTED USE, ACCURACY, SECURITY, AND LILT DISCLAIMS LIABILITY THEREFORE. LILT DOES NOT WARRANT ANY CONNECTION TO, OR TRANSMISSION FROM, THE INTERNET.

7.2 By Customer. Customer acknowledges that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that it is not a party to any contractual agreements that would have a material adverse impact on its ability to perform as required by this Agreement, (b) all content, information and materials provided by Customer to Lilt, including but not limited to written materials, images, video or audio, are owned by Customer or Customer has received explicit permission to use them and will not, when used in accordance with this Agreement infringe third party rights or fail to comply with any applicable laws, (c) it shall comply with all applicable laws, regulations, statutes and ordinances governing the collection and/or use of personally identifiable information collected and used through the Software and/or Translation Services, including all privacy and identity security laws and regulations in all applicable jurisdictions. If the law of any country, or state, prohibits Customer from using the Software or Translation Services, in whole or part, (e.g. because the Software or Translation Services are not allowed in the country or state where Customer or its customers is located), then Customer agrees not to use, or allow the use of, the Software or Translation Services in such countries or states to the extent so prohibited. Software and Translation Services are for Customer's internal business purposes only. Customer will not export any Software provided by Lilt or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer will not permit any third party to access or use the Software or Translation Services in, or export such Software to, a country subject to a United States embargo.

8. INDEMNIFICATION. RESERVED

9. LIMITATION OF LIABILITY. EXCEPT FOR CLAIMS ARISING FROM BREACHES OF THE CONFIDENTIALITY, NEITHER PARTY, INCLUDING THEIR AFFILIATED COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, INVESTORS, LICENSORS, OR ITS SERVICE PROVIDERS, SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONTINGENT, CONSEQUENTIAL, RELIANCE, PUNITIVE, EXEMPLARY, SPECIAL OR SIMILAR DAMAGES; INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR SAVINGS, LOSS OF USE, OR LOSS OR CORRUPTION OF DATA OR RECORDS, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BOTH PARTIES' AGGREGATE LIABILITY FOR DAMAGES INCURRED IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR STRICT LIABILITY OR ANY FAILURE OF ANY REMEDY TO ACCOMPLISH ITS ESSENTIAL PURPOSE OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO LILT UNDER THE ORDER FORM WITH RESPECT TO WHICH THE CLAIM IS MADE. CUSTOMER AGREES THAT THE LIMITATIONS IN THIS SECTION ARE ESSENTIAL ELEMENTS OF THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH LIMITATIONS, THE PRICING AND TERMS WOULD BE SUBSTANTIALLY DIFFERENT. EACH PARTY SHALL USE REASONABLE EFFORTS TO MITIGATE ITS DAMAGES OR LOSSES UNDER THIS AGREEMENT SUBJECT TO THE LIMITATIONS SET FORTH HEREIN.The foregoing limitation of liability shall not apply to (1) personal injury or death resulting from Licensor’s negligence; (2) for fraud; or (3) for any other matter for which liability cannot be excluded by law.

10. INSURANCE. RESERVED.

11. PUBLICITY. Lilt and Customer trademarks, trade names, service marks, and logos, whether or not registered (“Marks”), are the sole and exclusive property of the respective owning party, which owns all right, title and interest therein. . Lilt shall comply with Customer’s marketing/publicity terms to the extent permitted by the General Services Acquisition Regulation (GSAR) 552.203-71.

12. RELATIONSHIP OF THE PARTIES. The parties to this Agreement are independent parties, and there is no relationship of agency, partnership, joint venture, employment or franchise between the parties. Except to the extent specifically provided in an Order, neither party will have, and will not represent that it has, any power, right or authority to bind the other party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party or in the other party's name.

13. FORCE MAJEURE. Force Majeure shall be handled in accordance with 552.212-4 (f).

14. GENERAL.

14.1 Assignment. Assignment by Lilt shall be governed by the Anti-Assignment Act, FAR Subpart 42.12, and applicable case law.

14.2 Governing Law/Venue. This Agreement is governed by and construed under applicable federal law, and either party may seek equitable and injunctive relief as permitted by law.

14.3 Notices. Any notice under this Agreement shall be sufficiently given if delivered in person or, by overnight courier of national reputation or by registered or certified mail, postage prepaid, and addressed to the recipient party at the address stated in this Agreement. Such notice shall, if properly addressed, be deemed to have been given as of the date delivered in person or sent, one day after deposition with an overnight courier or four (4) business days after deposition into the US mail.

14.4 Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, the provision will be changed by the court or by the arbitrator and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect, unless the modification or severance of any provision has a material adverse effect on a party, in which case such party may immediately terminate this Agreement by notice to the other party.

14.5 No Waiver. No change, waiver or discharge of this Agreement will be valid unless in writing and executed by the party against whom such change, waiver or discharge is to be enforced. This Agreement may not be amended orally; but may only be amended in writing signed by both parties.

14.6 No Third Party Beneficiaries. This Agreement is for the benefit of the parties hereto and is not intended to confer any rights or benefits on any third party, including any employee, shareholder or customer of either party.

14.7 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all such counterparts together shall constitute one and the same instrument and may be sufficiently evidenced by one counterpart. Execution of this Agreement at different times and places by the parties hereto shall not affect the validity hereof.

14.8 Survival. The following sections shall survive termination of this Agreement and remain in effect: 2 (as to any amounts outstanding), 3, 4, 5, 8, 9, 14.

14.10 Entire Agreement. This Agreement, related Orders, the prime contract and any purchase or task orders under which this Agreement is entered, and any other attached schedules or exhibits constitute the final, entire, and exclusive agreement between the parties and supersede all prior agreements, Licensor’s website terms of services, and understandings between the parties, written or oral or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement. Except for those rights expressly granted by Lilt to Customer, all other rights are reserved to Lilt.