Services Agreement
This Services Agreement (this “Agreement”) is between MidLyr, Inc. (“MidLyr”) and you, and governs your use of MidLyr’s website (the “Website”) as well as MidLyr’s risk-aware execution platform for financial service providers (the “Platform”, and collectively with the Website, the “Services”). By accessing or using the Services in any manner, you agree to be bound by this Agreement. All references to “you” and “your” in this Agreement mean the legal entity that is a customer of MidLyr (each, a “Customer”), the individual using the Platform on behalf of a Customer (each, a “User”), or the individual visiting the Website but not using the Platform.
If you are entering into this Agreement on behalf of a Customer, you represent and warrant that you are a duly authorized representative with the authorization to act on behalf of the Customer and bind the Customer to this Agreement.
In consideration of the mutual promises set forth in this Agreement, the parties, intending to be legally bound, agree as follows:
1. Use of Platform
Platform Tiers
Customer can use a request-capped version of the Platform without paying a fee (the “Free Tier”). However, Customer can use a version of the Platform without any cap on requests (the “Professional Tier”) by purchasing usage credits (each, a “Credit”).
Responsibility for Users
Customer shall ensure that each of its Users uses the Platform in accordance with this Agreement. Any action by a User that is a breach of this Agreement will be deemed a breach of this Agreement by Customer.
2. Payment
Professional Tier
In consideration for Customer’s use of the Professional Tier, Customer shall pay MidLyr the fees identified at the time Customer purchases Credits (the “Fees”). Customer is not required to pay any Fees to use the Free Tier.
Automatic Payment
By providing a credit card or other payment method for the payment of Fees, Customer authorizes MidLyr (or MidLyr’s third-party payment processor) to charge Customer’s payment method for the total amount of Fees.
Invoices
To the extent MidLyr sends an invoice to Customer for Fees, all such Fees are due within 30 days of Customer’s receipt of the applicable invoice. Payments not received on time are subject to a 1.5% late fee per month.
3. Restrictions
You shall not:
- modify, disclose, alter, translate or create derivative works of the Services;
- sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Services;
- reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any source code, object code, or underlying structure, ideas, or algorithms of the Services, in whole or in part;
- use the Services to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions;
- use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right, privacy right, or other right of any person, or that violates any applicable laws;
- interfere with or disable any features, functionality, or security controls of the Services or otherwise circumvent any protection mechanisms for the Services;
- copy, frame or mirror any part or content of the Services;
- build a competitive product or service, or copy any features or functions of the Services;
- interfere with or disrupt the integrity or performance of the Services; or
- attempt to gain unauthorized access to the Services or related systems or networks.
MidLyr may temporarily suspend your access to the Services if MidLyr determines or reasonably suspects that you have or intend to violate, or have assisted others in violating or preparing to violate, any provision of this Section 3 (any such temporary suspension, a “Service Suspension”). MidLyr shall have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you or any third party may incur as a result of a Service Suspension, and you shall not be entitled to any refunds of any Fees on account of any Service Suspension.
4. Modifications to Services
MidLyr may modify and/or update the Services from time to time. MidLyr shall have no liability for any damage, liabilities, losses, or any other consequences that you or any other third party may incur as a result of modifications to the Services.
5. Term; Termination
Term
This Agreement commences upon your acceptance of this Agreement and will continue in effect until either party terminates this Agreement in accordance with this Section 5 (the “Term”).
Termination without Cause
Either party may terminate this Agreement without cause by providing written notice to the other party.
Termination for Cause
Either party may immediately terminate this Agreement by providing written notice to the other party if the other party (i) materially breaches this Agreement and such breach is not cured within 30 days after the breaching party receives notice of the breach from the other party, or (ii) ceases to do business in the normal course, becomes or is declared insolvent or bankrupt, is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) that is not dismissed within 90 days, or makes an assignment for the benefit of creditors.
Termination of Customer Agreement
If you are a User, this Agreement automatically terminates upon the termination of the agreement between MidLyr and the Customer.
Effect of Expiration or Termination
Upon expiration or termination of this Agreement, (a) your right to access the Services will terminate; and (b) Customer shall pay all unpaid Fees owed as of the date of expiration or termination of this Agreement. If MidLyr terminates this Agreement pursuant to Section 5(b) or Customer terminates this Agreement pursuant to Section 5(c), and Customer has unused Credits at the time of termination, MidLyr will refund to Customer the Fees paid for the unused Credits.
6. Intellectual Property and Data
MidLyr Ownership
As between the parties, MidLyr owns all right, title and interest (including intellectual property rights) in and to the Services and any content and data made available via the Services (collectively, the “MidLyr Property”).
Feedback
Customer and its Users are encouraged to provide feedback, comments, and suggestions for improvements to the Platform (“Feedback”). Any modifications to the Platform that MidLyr makes based on the Feedback are deemed to be MidLyr Property. MidLyr has the right, but not the obligation, to use such Feedback without any obligation to provide Customer credit, royalty payment, ownership interest, or any other type of compensation.
Customer Data
As between Customer and MidLyr, Customer owns all data that it or its Users provide to MidLyr pursuant to this Agreement (the “Customer Data”). Customer hereby grants MidLyr the right to use the Customer Data as necessary during the Term to provide the Platform to Customer.
De-Identified Data
Customer acknowledges and agrees that MidLyr may de-identify Customer Data in a manner that it can no longer reasonably be used to identify Customer or individuals (“De-Identified Data”). Customer acknowledges that the De-Identified Data does not constitute Customer Data, and MidLyr may use the De-Identified Data in MidLyr’s discretion.
7. Confidentiality
Confidential Information
For purposes of this Agreement: “Recipient” means either MidLyr or Customer, to the extent that party receives Confidential Information (defined below) from the other party; “Discloser” means either MidLyr or Customer, to the extent that party provides Confidential Information to the other party; and “Confidential Information” means any information whether written or oral that (i) is identified by the Discloser as being confidential, or (ii) should reasonably be expected by the Recipient to be confidential. For the avoidance of doubt, Customer Data is Customer’s Confidential Information, but De-Identified Data is not. Notwithstanding the foregoing, Confidential Information does not include information that (a) becomes generally available to the public through no fault of Recipient, (b) was rightfully in possession of Recipient without obligation of confidentiality prior to receipt from Discloser, (c) is independently developed by Recipient without benefit of any Confidential Information, or (d) is rightfully received by Recipient from another source on a non-confidential basis.
Use and Disclosure
Recipient shall not use or disclose any Confidential Information of Discloser except to the extent necessary to perform its obligations or exercise its rights hereunder, including by disclosing Confidential Information to its employees, independent contractors, and advisors who have a need to know such information to enable Recipient to perform its obligations or exercise its rights hereunder, and who are bound to keep such information confidential (collectively, the “Representatives”). Recipient is responsible for its Representatives’ compliance with this Section 7. Recipient shall give Discloser’s Confidential Information at least the same level of protection as it gives its own Confidential Information of similar nature, but not less than a reasonable level of protection. All confidentiality obligations will survive termination of this Agreement. Upon written request from Discloser and subject to any legal obligation to preserve Confidential Information, Recipient shall promptly return or destroy all Confidential Information, except that neither party is obligated to purge information archived pursuant to their normal document retention procedures if the provisions of this section otherwise continue to be observed. The Recipient may disclose Confidential Information as required by law if the Recipient (a) gives the Discloser reasonable written notice to allow the Discloser to seek a protective order or other appropriate remedy, but only if such notice is legally permitted, (b) discloses only such information as is required by law, and (c) uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.
Injunctive Relief
As money damages may not be a sufficient remedy for any breach of confidentiality obligations herein, the Discloser will be entitled to seek specific injunctive relief as a non-exclusive remedy for any such breach.
8. Representations and Warranties
Mutual Representations and Warranties
Each party represents and warrants that (a) it has the full right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; and (b) the execution of this Agreement and the performance of its obligations hereunder do not and will not violate any agreement to which it is a party or by which it is bound.
Customer Representations and Warranties
Customer represents and warrants that it has all rights necessary to provide the Customer Data to MidLyr and to grant MidLyr the rights set forth in Section 6.
9. Disclaimers
General Disclaimer
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS-IS” AND MIDLYR DISCLAIMS ALL EXPRESS AND IMPLIED REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICES (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NONINFRINGEMENT, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE).
Use of AI Agents; No Legal Guidance
YOU ACKNOWLEDGE THAT THE PLATFORM IS NOT INTENDED TO REPLACE ANY HUMAN DECISIONS OR PROVIDE LEGAL GUIDANCE, AND IS SOLELY INTENDED TO ASSIST HUMAN DECISION MAKERS. ACCORDINGLY, YOU ARE SOLELY RESPONSIBLE FOR ANY DECISIONS YOU MAKE OR ACTIONS YOU TAKE WITH RESPECT TO YOUR CUSTOMERS, CUSTOMER DATA, OR YOUR PERSONNEL. YOU ASSUME ALL RISKS ASSOCIATED WITH YOUR USE OF THE PLATFORM.
Third Party Platforms
YOU ACKNOWLEDGE THAT MIDLYR DOES NOT CONTROL THE THIRD PARTY PLATFORMS THAT YOU MAY INTEGRATE THE PLATFORM WITH (E.G., LARGE LANGUAGE MODELS). BECAUSE MIDLYR HAS NO CONTROL OVER THE THIRD PARTY PLATFORMS, MIDLYR DISCLAIMS ANY GUARANTEES ABOUT ITS ABILITY TO COLLECT CUSTOMER DATA FROM THE THIRD PARTY PLATFORMS, THE ACCURACY OF CUSTOMER DATA, OR THE ACCURACY OF INFORMATION THAT THE THIRD PARTY PLATFORMS PROVIDE TO YOU.
10. Indemnification
Customer Indemnification
Customer shall defend and indemnify MidLyr and its officers, directors, employees, contractors, and agents (collectively, “Indemnitees”) from and against any and all liability, damage, loss, cost, or expense, including reasonable attorneys’ fees and expenses (collectively, “Costs”), arising out of or in connection with any actual claim, suit, action, or proceeding against MidLyr or its Indemnitees by a third party as a result of (a) a breach of this Agreement by Customer or its Users, (b) the gross negligence or willful misconduct of Customer or its Users related to this Agreement, or (c) MidLyr’s authorized use of the Customer Data.
MidLyr Indemnification
MidLyr shall defend and indemnify Customer and its Indemnitees from and against any and all Costs arising out of or relating to any actual claim, suit, action, or proceeding against Customer or its Indemnitees by a third party as a result of the infringement or misappropriation of third-party intellectual property rights by the Platform. In the event of a claim pursuant to this Section 10(b), MidLyr may, at its option and expense (i) obtain for Customer the right to continue to exercise the rights granted to Customer under this Agreement; (ii) substitute the allegedly infringing component for an equivalent non-infringing component; or (iii) modify the Platform to make it non-infringing. If none of subparts (i), (ii), or (iii) in the foregoing sentence are obtainable on commercially reasonable terms (as determined by MidLyr), MidLyr may terminate this Agreement, effective immediately, by written notice to Customer and refund to Customer any unused, prepaid Fees. MidLyr’s indemnification obligations do not extend to claims arising from or relating to: (i) any negligent or willful misconduct of Customer or its Indemnitees; or (ii) the use of the Platform by Customer or its indemnitees in a manner contrary to the terms of this Agreement where the infringement would not have occurred but for such use.
Procedure
A party seeking indemnification (“Indemnified Party”) shall promptly notify the party against which indemnification is sought (“Indemnifying Party”) upon becoming aware of any claim for which indemnification is sought and will: (a) provide reasonable cooperation to the Indemnifying Party, at the Indemnifying Party’s expense, in connection with the defense or settlement of any such claim and (b) be entitled to participate at its own expense in the defense of any such claim. The Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third-party claim, except that the Indemnifying Party shall not, without the Indemnified Party’s written consent, submit to any judgment or enter into any settlement that adversely affects the Indemnified Party’s rights or interests.
11. Limitation of Liability
EXCEPT FOR LIABILITIES RELATING TO INDEMNIFICATION OBLIGATIONS, FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, AND VIOLATIONS OF SECTION 7 (CONFIDENTIALITY), (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, BUSINESS OR PROFITS, OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, AND (B) EACH PARTY’S CUMULATIVE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE FEES PAID BY YOU TO MIDLYR DURING THE 12-MONTH PERIOD PRECEDING THE CLAIM.
12. General
No Agency
Nothing in this Agreement creates an agency, franchise, joint venture, employment relationship, or partnership between the parties. The parties are and will remain independent contractors. Neither party has the authority to bind the other or to incur any liability or otherwise act on behalf of the other. Each party shall ensure the timely disposition of all of its employee matters in connection with its organization, including employee benefits, insurance, withholdings, taxes, and similar employee-related matters.
Severability
If any provision of this Agreement is held invalid, illegal, or unenforceable, such invalid, illegal, or unenforceable provision will be modified, if possible, to the minimum extent necessary to make it valid and enforceable, or if it cannot be so modified, then severed, and the remaining provisions contained herein will not in any way be affected or impaired.
Waiver
Neither party’s failure to enforce strict performance of any provision of this Agreement will constitute a waiver of a right to subsequently enforce such provision, and no waiver of one obligation or condition will constitute a waiver of another obligation or condition. No waiver of this Agreement will be valid unless made in writing and signed by an authorized representative of the party providing the waiver.
Remedies
Except as otherwise stated herein, the remedies under this Agreement are intended to be cumulative and not exclusive.
Assignment
Customer or MidLyr may assign this Agreement, by operation of law or otherwise, without consent, to its successor in a merger or acquisition of all or substantially all of its assets, equity, or business to which this Agreement relates. Otherwise, assignment of this Agreement is prohibited without the consent of the other party.
Survival
The provisions of Sections 2, 5(d), 6 (except for the term-limited license granted in Section 6(c)), 7, 9, 10, 11, and 12 will survive any termination or expiration of this Agreement.
Entire Agreement; Amendment
This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto. This Agreement may not be amended except in a writing signed by authorized representatives of both parties.
Notice
MidLyr may give notice to you by (i) electronic mail to your email address on record in your account information, (ii) written communication sent by letter delivered by a nationally recognized overnight delivery service, or (iii) first-class postage prepaid mail to your address on record in your account information. You may give notice to MidLyr by emailing MidLyr at support@midlyr.ai.
Force Majeure
Neither party will be liable for any delays or failures of performance hereunder, except for payments, to the extent that performance of such party’s obligations or attempts to cure any breach under this Agreement are delayed or prevented as a result of acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, fires, floods, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts of terrorism or war, acts of government, civil unrest, or any other similar event or circumstance beyond its reasonable control (“Force Majeure Event”), except that the other party may terminate this Agreement upon written notice if the Force Majeure Event continues for more than 30 days.
Dispute Resolution
If you are a User, any dispute between you and MidLyr shall be deemed to be a dispute between MidLyr and the Customer. MidLyr and the Customer agree to resolve any dispute, claim or controversy arising out of or relating to this Agreement according to the terms of this section. First, the parties agree to attempt in good faith to resolve the dispute through informal resolution. Second, if the dispute is not resolved through informal resolution, the dispute will be adjudicated exclusively in any state or federal court in Los Angeles County, California. Each party consents to exclusive jurisdiction and venue in those courts.
Governing Law
The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law.