Master Services Agreement

for LUCID Marketplace Services

THESE MARKETPLACE SERVICES TERMS (“AGREEMENT”) GOVERN LUCID’S PERFORMANCE OF MARKETPLACE SERVICES, UNLESS YOU AND LUCID ARE PARTIES TO A SEPARATE WRITTEN AGREEMENT FOR PERFORMANCE OF MARKETPLACE SERVICES. YOU MAY NOT ENTER INTO THIS AGREEMENT UNLESS YOU ACCEPT THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION, AND YOU ARE AUTHORIZED TO ACT ON BEHALF OF YOUR ORGANIZATION. YOU ACCEPT THIS AGREEMENT WITH LUCID AS DESCRIBED IN SECTION 1.2 BELOW, AND THE DATE OF SUCH ACCEPTANCE SHALL BE THE “EFFECTIVE DATE” OF THIS AGREEMENT. This Agreement is between the customer named in the Order Agreement (“You” or “Your” or “Customer”) and Lucid (each, a “Party,” collectively, the “Parties”) and constitutes the entire understanding related to the subject matter. LUCID WILL NOT BE BOUND BY ADDITIONAL OR ALTERNATIVE TERMS OR CONDITIONS ADDED OR DELETED BY CUSTOMER, PRINTED OR OTHERWISE, ON ANY PURCHASE ORDER, ORDER FORM, STATEMENT OF WORK, INSTRUCTIONS OR SIMILAR DOCUMENT.

“Lucid” means (i) Lucid Holdings, LLC, a Delaware LLC with its principal place of business at 365 Canal St. Ste. 3100, New Orleans, LA 70130 U.S.A. with respect to Marketplace Services inside and outside of the United States and all other countries, exclusive of offerings in the following subsections (ii) or (iii); or (ii) with respect to all Marketplace Services that are shipped to, deployed or rendered within the European Union or South America, Lucid Holdings UK LTD, a company incorporated under the laws of the United; or (iii) with respect to all Lucid Services that are shipped to, deployed or rendered within India, the Middle East, Asia, or Pacific countries, Lucid Holdings India Pvt Ltd, a company incorporated under the laws of India.

1. MARKETPLACE SERVICES.

1.1 Description of Marketplace Services. Lucid will provide certain services to Customer in accordance with this Agreement, including directing potential survey Respondents to surveys programmed and hosted by Customer or hosting such surveys for and on behalf of Customer, and assist with other projects as requested by Customer (“Marketplace Services”). Lucid will provide to Customer the Marketplace Services in accordance with the purchase order, order confirmation, quote, managed service plan, statement of work or other related documents issued by Lucid and accepted by both Parties (collectively referred to as “Order Confirmation”). Customer is responsible to Lucid for all credit risks regarding, and collecting payment for, all Services resold by Customer to third parties, whether or not the third parties have made full payment to Customer. The inability of Customer to collect the purchase price for any Services does not affect Customer’s obligations to pay Lucid for any Services.

1.2 Acceptance of Order Confirmation. An Order Confirmation is deemed to have been accepted and is binding on both Parties on the earlier of when Customer: (a) executes and returns an Order Confirmation to Lucid, (b) acknowledges acceptance of the Order Confirmation by e‑mail or any other commercially reasonable electronic means, by a person duly authorized by Customer to execute the Order Confirmation, © work has been started by Lucid at the direction of Customer, or (d) Customer has directed Lucid to place orders with its subcontractors in order to satisfy the Order Confirmation.

2. PAYMENT AND PERFORMANCE. Customer shall pay Lucid for the Marketplace Services in accordance with the pricing and other specifications stated in the Order Confirmation. All amounts due under the Order Confirmation will be invoiced upon completion of the project or as otherwise agreed in the Order Confirmation. In the case of studies tracking ads, brands, or markets over time, Lucid will invoice Customer on a monthly basis or as mutually agreed in the Order Confirmation.

3. OWNERSHIP. You will own and receive a copy of all tangible materials created, conceived, developed or reduced to practice by Lucid, specifically for Customer in connection with the Marketplace Services pursuant to this Agreement, subject to Lucid’s ownership of all its rights in patents, copyrights, trade secrets, trademarks, and other worldwide proprietary rights.

4. WARRANTIES AND DISCLAIMER. Lucid warrants to Customer that it shall perform the Marketplace Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. Each Party warrants to the other Party that is shall comply with all applicable laws, rules, statutes, decrees, decisions, orders, regulations, requirements of any government authority (federal, state, local, or international) having jurisdiction over a Party’s obligations under this Agreement. Each Party shall indemnify the other Party for third party claims arising out of breaches of the warranties in this Section 4, provided the cause of action for such is not proximately caused by the non-breaching Party. Lucid’s sole obligation, and Customer’s sole and exclusive remedy for any breach of the foregoing warranty, is for Lucid to use reasonable efforts to re-perform the affected Marketplace Services. EXCEPT FOR THE ABOVE WARRANTIES, NEITHER PARTY MAKES ANY WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES OR THIS AGREEMENT, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.

5. LIMITATION OF LIABILITY.

5.1 EXCEPT FOR BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER THIRD PARTY FOR ANY LOSS OF USE, LOST REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

5.2 EXCEPT FOR BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO LUCID PURSUANT TO THE APPLICABLE ORDER CONFIRMATION IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

6. CONFIDENTIAL INFORMATION. “Confidential Information” means information disclosed by a Party (“Discloser”) to the other Party (“Recipient”) in connection with the use or provision of the Marketplace Services that is either marked as confidential or would reasonably be considered as confidential under the circumstances. During the term of this Agreement, the Parties may disclose certain Confidential Information to each other solely to permit the Parties to perform its obligations under this Agreement. Each Party shall refrain from using or exploiting any and all Confidential Information of the other Party for any purposes or activities other than those specifically authorized in this Agreement, and each Party shall not disclose any Confidential Information of the other Party to any person, firm or corporation, except to its employees, agents, or contractors with a need to know in connection with the Marketplace Services and have who executed a nondisclosure agreement at least as protective of confidential information as the terms of this Agreement. Both Parties shall implement effective security procedures in order to avoid disclosure or misappropriation of the other Party’s Confidential Information. The provisions of this Section 6 shall not apply to data and information disclosed by a Party to the other Party that (a) was already rightfully known by the Party prior to disclosure, (b) is or becomes public through no fault of the Party, © was rightfully given to the Party by a third party without restriction on disclosure, (d) was independently developed by the Party without reference to the Confidential Information, or (e) is required to be disclosed pursuant to any statutory or regulatory provision, relevant governing body or government, or court order.

7. RESPONDENT AND PERSONAL DATA.

7.1 Role of Parties. Customer acknowledges and agrees that with regard to the control and processing of personal data, Customer is the Controller and Lucid is the Processor.

7.2 Customer’s Control of Personal Data. Customer shall control and use personal data in accordance with the requirements of Data Protection Laws and Regulations. Customer’s instructions for the processing of personal data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, appropriateness and legality of any personal data and the means by which the Customer acquires such personal data for use in connection with the Marketplace Services. Data Protection Laws and Regulations means all laws and regulations, including laws and regulations of the United States, European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of personal data under the Agreement; personal data means the definition as defined under the Data Protection Laws and Regulations.

7.3 Use and Processing of Personal Data. The Parties shall only use and process personal data under this Agreement in accordance with the data processing terms and conditions in the Order Confirmation. Customer hereby authorizes and agrees to Lucid’s use of sub-processors to fulfill its obligations under this Agreement. Lucid publishes a list of its sub-processors of personal data at https://luc.id/sub-processors/, which may be amended from time to time by Lucid. By following the instructions at this site, Customer may subscribe to receive notification of changes to the sub-processors used by Lucid. 

8. TERMINATION.

8.1 Term. This Agreement is effective for a 1 year period (“Term”) starting on the Effective Date. The Term automatically renews for successive 1 year periods upon acceptance of each Order Confirmation unless a Party provides notice of termination before the expiration of the Term; any renewal shall be subject to Lucid’s then current terms and conditions for Marketplace Services.

8.2 Termination. Either Party may unilaterally suspend or terminate this Agreement by giving notice if the other Party: (a) materially breaches any other provisions of this Agreement and fails to fully cure within 30 days after receiving written notice of the breach, or (b) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

8.3 Survival. Provisions of this Agreement, which by their nature should apply beyond the Term, will remain in force after termination or expiration of this Agreement. In addition, the terms of this Agreement will survive and apply to any Order Confirmations outstanding as of the effective date of termination or expiration.

9. ADDITIONAL PROVISIONS.

9.1 Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the State of New York (without reference to its principles of conflicts of law). Any legal suit, action or proceeding arising out of or relating to this Agreement shall be in in the federal courts of the United States of America or the courts of the New York in each case located in New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts.

9.2 Notices. All notices, requests, consents, claims, demands, waivers and communications hereunder (“Notice”) shall be in writing to the Parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving Party in writing. All Notices shall be delivered to legal@luc.id. Notice is effective only upon receipt by the receiving Party.

9.3 Entire Agreement. This Agreement, including the Order Confirmations, constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements between the Parties, whether written or oral, relating to the same subject matter. No modification, amendments or supplements to this Agreement shall be effective unless in writing and signed by each Party.

9.4 Assignment. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Either Party may assign its rights and obligations under this Agreement; provided, however, in the event that Customer assigns its rights under this Agreement in connection with a merger, acquisition or sale of a majority of its assets, Customer will provide written notice to Lucid (directed to legal@luc.id) ; provided, further, however, Customer may not assign this Agreement and the rights hereunder to a competitor of Lucid without its prior written approval.  Without limiting the foregoing, Customer acknowledges that Lucid may assign and convey their rights of payment and collection to any third party without prior notice or consent from Customer.

9.5 Electronic Signature Consent.  Customer’s execution of this Agreement (by electronic or hard signature) or Customer’s use of the Marketplace Services constitutes Customer’s acceptance of all of the terms and conditions set forth in this Agreement. Customer and Lucid agree and acknowledge that electronic signatures shall have the same force and effect as original or hand-written signatures with respect to this Agreement (or any statement of work or  Order Confirmation referencing  this Agreement) and all electronic records or transactions entered into between Customer and Lucid with respect to the Marketplace Services. Customer affirms its intent to conduct transactions using electronic signatures and records. Customer may revoke approval of this electronic signature process at any time with prior written notice to Lucid; however this may result in Lucid’s suspension or termination of all transactions and/or access or use of the Marketplace Services absent Customer’s acknowledgment of agreement or consent by other valid legal means.

9.6 Attorneys’ Fees. In the event any action is brought to enforce against Customer any provision of this Agreement or to declare a breach of this Agreement, Lucid shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, court costs and cost of collection, incurred by Lucid.

 

Last Modified: August 27, 2020.

Copyright 2020, Lucid Holdings, LLC.

All Rights Reserved.