Listen Labs Master Service Agreement
Last Updated: February 6, 2026
Master Services Agreement
This Master Services Agreement (“Agreement”) sets forth the terms and conditions that apply to the use of the Listen Labs Services by Customer (as defined in Section 1(g)) who has executed an Order Form with Merlin AI, Inc., dba Listen Labs, a Delaware corporation (“Listen Labs”). This Agreement is incorporated by reference into the terms of each Order Form and is effective as of the date the Order Form is signed by all Parties (“Effective Date”). Listen Labs and Customer shall individually be referred to as a “Party” and collectively as the “Parties.”
In consideration of the mutual representations, warranties, and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
Definitions. The following terms shall be capitalized throughout this Agreement and shall be defined as follows:
“Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a party, where “control” means the possession, whether direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract, or otherwise.
“API” means Listen Labs’ application programming interface(s) and any accompanying documentation or materials provided by Listen Labs that allow for programmatic access to the Services, including but not limited to processing models, data transformation capabilities, and integration endpoints.
“Applicable Law(s)” means all international, federal, state, provincial, and local laws, rules, regulations, binding regulatory guidance, directives, and governmental requirements applicable to the Services, or performance of a Party’s obligations under this Agreement.
“Artificial Intelligence,” “AI Technology,” or “AI” means any artificial intelligence, machine learning, deep learning, neural networks, natural language processing, computer vision, generative AI, or other reinforcement learning or similar learning application or functionality offered as part of the Services, including, but not limited to, large language models, foundation models, systems, or engines, whether provided directly by Listen Labs or through third party providers as part of the Services.
“Authorized Users” means Customer’s designated administrator(s), employees and other personnel authorized to access the Services.
“Credits” means the credits purchased to pay for fees pursuant to the terms of each Order Form.
“Customer” means the entity identified as the Customer in the Order Form.
“Customer Data” means any and all data, content, materials, or other information provided by Customer to Listen Labs or otherwise processed by Listen Labs on behalf of Customer in connection with the Services, including without limitation any and all Personal Data, data, images, video recordings, voice recordings, information, text, graphics, or other materials.
“Documentation” means any documentation, whether in electronic or printed format, provided by Listen Labs to Customer that are identified as, or intended to be, user manuals or videos and describe the features, functions and operation of the Services.
“Input” means the original, unprocessed Customer Data provided by Customer to the Services for processing by Artificial Intelligence.
“Order Form” means the pricing proposal, quote or other order form setting forth the commercial terms of the Services which forms a part of this Agreement.
“Order Form Term” means the subscription term specified in each applicable Order Form.
“Output” means any output generated by Artificial Intelligence after processing Input(s).
“Participant” means any individual who is recruited, sourced, or otherwise engaged to provide responses, opinions, feedback, or other information in connection with a Project.
“Personal Data” means any information relating to an identified or identifiable natural person. For the avoidance of doubt, Personal Data includes personally identifiable information and personal information as defined by applicable data privacy and protection laws, including, but not limited to: (a) the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 (collectively, the “CCPA”); (b) the Virginia Consumer Data Protection Act of 2021, as amended, VA Code Title 59.1, Chapter 52, 59.1-571 through 59.1-581 (“VCDPA”); (c) the Colorado Privacy Act and its implementing regulations (“CPA”); (d) the Utah Consumer Privacy Act (“UCPA”); (e) Connecticut SB6, An Act Concerning Personal Information Privacy and Online Monitoring (“CTDPA”); (f) any other applicable laws, rules, orders, or regulations related to the protection of Personal Data in the United States that are in force or that come into force during the Term of this Agreement; (g) the General Data Protection Regulation (EU) 2016/679 ("GDPR"); (h) with respect to the United Kingdom, the GDPR as saved into United Kingdom law by virtue of section 3 of the United Kingdom’s European Union (Withdrawal) Act 2018 (“UK GDPR”) and the Data Protection Act 2018 (together, “UK Data Protection Laws”); and (i) the Swiss Federal Data Protection Act and its implementing regulations (“Swiss DPA”); in each case, as may be amended, superseded, or replaced.
“Platform” means the secure, web-based customer account management, dashboard, and other Services-related functionality made available to Customer and its Authorized Users through authenticated access at http://listenlabs.ai/dashboard.
“Professional Services” means, in each instance, the Project implementation, integration, configuration, Project consultation, and other professional services provided by Listen Labs pursuant to a mutually executed Statement of Work.
“Project” means each Customer-tailored research project, including, but not limited to, the project’s stated goals, measurement criteria and parameters, Participant scope, questionnaires, and moderated interview format.
“Services” means Listen Labs’ proprietary API and AI-driven research software as a service that are made available to Customer and its Authorized Users through the Listen Labs Platform on a subscription and/or usage basis as specified in each applicable Order Form.
“Statement of Work” or "SOW" means each statement of work or other similar ordering document mutually executed by the Parties that describes the specific Professional Services to be performed under this Agreement and expressly references this Agreement.
“Third Party Products” means certain third party applications, integrations, systems, or services used by Customer, but not supplied by Listen Labs, that are designed to interoperate with the Services.
“Updates” means any and all bug fixes, patches, and maintenance releases that Listen Labs generally makes available to its customers.
Access and Use of the Services.
Listen Labs grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable (except as otherwise permitted pursuant to Section 23(f)), worldwide right to access and use the Services during the applicable Order Form Term.
Notwithstanding any language in this Agreement that may suggest otherwise, it is expressly understood and agreed that any reference to the terms “purchase,” “sold,” or any similar terms shall not imply or confer any transfer of ownership rights in any Services or API provided under this Agreement.
Customer Licenses.
Customer Data. Customer grants to Listen Labs a limited, worldwide, non-exclusive, royalty-free, sublicensable (solely as to Listen Labs’ subcontractors and service providers necessary to provide the Services, subject to the confidentiality obligations and disclosure requirements set forth in Section 12 herein) license to host, copy, transmit, display, and otherwise process and use Customer Data, solely as necessary for Listen Labs to carry out its obligations and exercise its rights under this Agreement. Except for the limited license granted herein, Customer retains all right, title, and interest, including, without limitation, all intellectual property rights, in and to Customer Data. For the avoidance of doubt, Listen Labs will not use the Customer Data for any other purpose, including for training any Artificial Intelligence models. If for any reason any Output generated by the Services is not automatically considered Customer’s intellectual property, then Listen Labs hereby irrevocably assigns, conveys, and transfers, and shall be deemed to have assigned, all rights, title, and interest in and to the Output to Customer, including any and all copyright, trademark, trade secret, patent, or other intellectual property and proprietary rights under the laws of the United States and of any other jurisdiction, and the rights to sublicense or transfer any and all rights assigned hereunder to third parties in perpetuity. Customer will be solely responsible for the accuracy, quality and legality of all Customer Data.
Customer Feedback. Customer grants to Listen Labs a limited, non-exclusive, royalty-free, perpetual, irrevocable, sublicensable, and transferable worldwide license to collect, process, store, use, display, distribute, modify, create derivative works from, and disseminate any suggestions, comments, or ideas, whether solicited or unsolicited (collectively, “Feedback”), submitted to Listen Labs; provided, however, that any public disclosure of Feedback shall not include any Customer Personal Data or Customer Confidential Information.
Third Party Products. Customer or its Authorized Users may choose to use the Services with certain Third Party Products. Use of Third Party Products is subject to Customer’s agreement with the relevant provider of such Third Party Products and are neither provided by Listen Labs nor governed by, or subject to, this Agreement. To the fullest extent permitted under Applicable Law(s), Listen Labs will have no liability for Customer’s or its Authorized Users’ use of Third Party Products, including their security, functionality, operation, availability, or interoperability or how the Third Party Products or their providers use Customer Data. By enabling or otherwise using a Third Party Product with the Services, Customer hereby authorizes Listen Labs to access and exchange Customer Data with the Third Party Product on Customer’s behalf.
Reservations of Rights; Use Restrictions.
Listen Labs has and will retain all right, title and interest, including, without limitation, all intellectual property rights, in and to (a) the Platform, Listen Labs Confidential Information, Documentation, Services, Usage Data, and all source code and object code related thereto, (b) all templates, programs, methodologies, and processes utilized in connection with the Services, and (c) all copies, modifications and derivative works thereof (collectively, the “Listen Labs IP”). Any and all rights not expressly granted herein by Listen Labs are reserved by Listen Labs.
Customer will not use the Listen Labs IP to develop, directly or indirectly, any product or application that is similar to or competitive with any Listen Labs product or service. Customer will not use the Listen Labs IP for evaluation, benchmarking or other comparative analysis without Listen Labs’ prior written consent. Customer will not distribute, redistribute, disseminate, resell, or sublicense the Listen Labs IP, or use the Listen Labs IP on behalf of any third party, including as part of a time-sharing, outsourcing or service bureau environment. Customer will not, directly or indirectly, alter or modify the Listen Labs IP or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how, algorithms, or software related to the Services. Customer will not seek to circumvent applicable usage limitations on Listen Labs’ API.
Customer Obligations.
Customer is responsible for maintaining the confidentiality of API keys provided by Listen Labs and for all activities that occur under their API keys.
Customer and its Authorized Users shall access the Services solely in accordance with the terms and conditions of this Agreement. Customer shall take all necessary steps to ensure an Authorized User’s access is deactivated in the case of changes to such Authorized User’s employment status and immediately notify Listen Labs if it learns of any unauthorized use of any access credentials.
Professional Services.
Listen Labs will perform the Professional Services set forth in an Order Form executed by Customer or a separate Statement of Work approved and agreed to by Listen Labs, which shall include and/or specify a description of the Professional Services to be provided to Customer and the applicable Fees and payment terms.
Customer acknowledges and agrees that Listen Labs' ability to timely deliver the Professional Services is dependent upon Customer's ongoing cooperation and assistance. Accordingly, Customer will supply to Listen Labs, on a timely basis, all information, materials, and assistance reasonably necessary for Listen Labs to perform the Professional Services described in an Order Form or Statement of Work (as applicable). Customer will also appoint and actively manage the key roles identified in the Statement of Work relating to such Order Form. Listen Labs' period of performance shall be reasonably extended to account for any delays resulting from Customer's failure to fully comply with the foregoing. Listen Labs will not be held liable or provide a refund if Customer chooses not to use the Professional Services during the Order Form Term.
Listen Labs shall be responsible for staffing decisions with respect to employees, partners, or contractors utilized in the performance of any Professional Services under this Agreement, and shall have the right at any time to delegate, subcontract, remove or replace any of its personnel, partners or contractors assigned to perform any Professional Services under this Agreement. Listen Labs will be responsible for the acts or omissions of its employees, partners, and contractors.
Updates; Support Services.
During the applicable Order Form Term, Listen Labs shall provide Customer with Updates to the Services at no additional charge. Listen Labs shall use commercially reasonable efforts to make such Updates available to maintain the Services in substantial conformity with the specifications set forth in the Documentation. Updates exclude new features, functionality, or modules that Listen Labs offers separately for additional fees.
Listen Labs will provide support services 9:00 AM – 5:00 PM Pacific Time on business days, excluding standard U.S. holidays and scheduled maintenance windows. Customer may initiate a helpdesk ticket during support hours by calling 707-654-4477 or any time by emailing support@listenlabs.ai.
Usage Data. Notwithstanding anything to the contrary set forth herein, Listen Labs and its licensors shall be permitted to compile (i) statistical and other information related to the performance, operation and users’ use of the Services, and (ii) data related to identifiable users’ usage of features and functionality within the Services (collectively, “Usage Data”). For the avoidance of doubt, Usage Data excludes all Customer Data. Usage Data is used solely (i) for billing during the Term (as defined below), (ii) during and after the Term to implement, operate, maintain and improve the Services and to fulfill its obligations hereunder; (iii) and during and after the Term, and in aggregated and anonymized (as each such term is defined in any applicable privacy law, and provided that such aggregated and anonymized Usage Data cannot under any circumstances be re-identified to a natural person) form, to create statistical analyses and for research and product development. If Listen Labs discloses any Usage Data to third parties for the foregoing purposes, such disclosure will be in a manner that does not identify, and cannot under any circumstances be re-identified to, Customer or its Authorized Users.
Term; Automatic Renewal.
This Agreement commences on the Effective Date and shall continue until all Order Forms hereunder have expired or have been terminated pursuant to the terms of this Agreement (the “Term”).
Except as otherwise specified in the Order Form, Services will automatically renew for subsequent subscription terms equal to the expiring Order Form Term, unless either Party gives the other notice of non-renewal at least thirty (30) days before the end of the applicable Order Form Term.
Fees.
Payment. Except as otherwise set forth herein, all fees will be set forth in the applicable Order Form or Statement of Work in U.S. dollars. Except as otherwise set forth in an applicable Order Form or Statement of Work, Customer shall pay all invoices within thirty (30) days of the date of any invoice.
Credits. Customer may purchase Credits from Listen Labs for certain Services pursuant to the terms of the applicable Order Form.
Late Payments. If Customer fails to remit payment within five (5) business days of receiving written notice of non-payment, unpaid invoices shall be subject to (i) a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, and (ii) all reasonable costs of collection actually incurred by Listen Labs, including but not limited to reasonable attorneys' fees, court costs, and collection agency fees. Listen Labs reserves the right, upon ten (10) days’ prior written notice, to suspend or terminate the Services for payments that are more than thirty (30) days past due.
Taxes. Customer is responsible for paying any applicable taxes, excluding taxes based solely on Listen Labs’ net income, including, but not limited to, governmental sales, use, value-added, commodity, harmonized, GST, consumption tax, service tax or other similar taxes imposed in connection with the fees paid for the Services. To the extent Listen Labs is required to collect such taxes, the applicable tax will be invoiced to Customer and paid pursuant to the applicable Order Form payment terms.
Non-Refundable. Except in the event of Listen Labs’ uncured material breach or as otherwise set forth in this Agreement, (i) fees will not be prorated upon cancellation or early termination of this Agreement, and (ii) all fees paid through the date of termination are non-refundable.
Security.
Security Controls. Listen Labs shall implement and maintain a written information security program that incorporates administrative, technical, and physical safeguards designed to ensure the security, confidentiality, and integrity of Customer Data. Such safeguards will be commensurate with Listen Labs’ size and complexity, the nature and scope of its activities, and the sensitivity of the Customer Data. In addition, Listen Labs is SOC 2 Type 2 compliant and, subject to the confidentiality obligations set forth in Section 12, will provide Customer with a copy of its SOC 2 Type 2 report upon request by Customer. Listen Labs will not process Customer Data except in accordance with this Agreement and the DPA (as defined in Section 13). Upon request by Customer, Listen Labs will provide to Customer, without charge, copies of any, including the most recent versions of all, third party audit or compliance certificates for the hosting provider that are available to Listen Labs and are allowed to be shared with third parties.
Security Breach. If either Party suspects that there may be or has been unauthorized access, use or disclosure of any Customer Data (a “Security Breach”), that Party will promptly notify the other Party with confirmation of such notification in writing. Each Party will take such actions and measures as may be reasonably necessary or appropriate to remediate the Security Breach and mitigate any harmful effect of the Security Breach (including preventing any further Security Breach) and will keep each other reasonably informed of all material developments in connection with such Security Breach.
Disaster Recovery. Listen Labs will have in place a disaster recovery plan for business continuity and infrastructure redundancy (“DRP”) in the event of any event or circumstance that could materially adversely affect the Services or continued operation of Listen Labs as required under this Agreement (a “Disaster”). During the Term, Listen Labs will (a) provide a copy of the DRP to Customer upon request and (b) periodically update and test the operability of the DRP. In the event of any Disaster, Listen Labs will implement the DRP and otherwise use all necessary continuous efforts to reinstate the affected Services as quickly as possible. Except as provided for herein, Listen Labs will have no responsibility for making or retaining back-up copies of Customer Data. In the event of any loss of or damage to Customer Data hosted by or on behalf of Listen Labs, Listen Labs will use commercially reasonable efforts to restore such lost or damaged Customer Data from the latest back-up of such Customer Data.
Confidentiality & Non-Disclosure.
Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party may have access to the other Party’s Confidential Information. “Confidential Information” means all non-public information or material that is disclosed to the other Party, whether in oral and/or written form, that (i) relates to past, present and future research, development, business activities, trade secrets, products, services, and proprietary software; or (ii) has been either identified, orally or in writing, as confidential or would be understood to be confidential by a reasonable person under the circumstances. Subject to Section 12(b), all Customer Data shall constitute Customer’s Confidential Information.
Exclusions. Confidential Information does not include information, content, technical data or know-how which: (a) is in the possession of the receiving Party at the time of disclosure as shown by the receiving Party's files and records immediately prior to the time of disclosure; (b) prior or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving Party; (c) was disclosed by a third party not subject to confidentiality obligations; or (d) is approved for general release by the disclosing Party in writing.
Use; Non-Disclosure Obligation. Each Party agrees to use the Confidential Information solely for the purposes of performing its obligations under this Agreement. Neither Party shall disclose any Confidential Information of the other Party to any third party without the disclosing Party’s prior written consent, except as necessary to comply with the law, a court order, or a subpoena, or to their respective personnel or agents (i) who have a need to know about such information in order to fulfill their obligations under this Agreement, (ii) who are subject to written confidentiality agreements with terms at least as restrictive as the terms contained herein, and (iii) who have been informed of the confidential nature of the information. Each Party shall be liable for any breach of confidentiality by its personnel or agents as if such breach had been committed by the Party itself.
Required Disclosure. In the event the receiving Party is requested or required by legal process to disclose any of the Confidential Information, the receiving Party shall give the disclosing Party prompt written notice so that the disclosing Party may seek a protective order or other appropriate relief prior to any such disclosure. In the event that such protective order is not obtained, the receiving Party shall disclose only that portion of the Confidential Information that its legal counsel advises it is legally required to disclose, and shall work with the disclosing Party to minimize the extent and effect.
Injunctive Relief. Each Party understands and agrees that monetary damages will not be a sufficient remedy for any breach of either Party’s confidentiality obligations under this Section, and that the non-breaching Party shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies will not be deemed to be the exclusive remedies, but will be in addition to all other remedies available at law or in equity.
Return or Destruction of Confidential Information. Upon either Party’s written request at any time, or upon termination or expiration of this Agreement, and subject to any contrary obligations under applicable law, the other Party shall, at the requesting Party’s option, return or destroy all of the requesting Party’s Confidential Information and, if requested by the requesting Party, certify in writing that it has complied with the foregoing.
Data Processing Addendum. The Parties acknowledge and agree that the Data Processing Addendum that has been executed by the Parties (the “DPA”) is hereby incorporated herein by reference to the extent Customer provides Listen Labs with Personal Data that is subject to data protection laws for processing on Customer’s behalf.
Representations and Warranties.
Each Party represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation, possesses all the necessary authority to enter into and perform its obligations under this Agreement, (ii) that the execution of this Agreement and the performance of its obligations hereunder do not and will not violate any other agreement to which it is a party, and (iii) that it shall comply with all Applicable Law(s) in connection with the performance of its obligations under this Agreement.
Customer represents and warrants that (i) Customer has all the rights, power and authority necessary to collect, share, and grant the rights granted herein to any and all Customer Data, and (ii) Customer Data does not and will not contain any content that is unlawful, defamatory, libelous, obscene, fraudulent, or otherwise objectionable. Customer warrants that it will at all times comply with the Acceptable Use Policy, attached hereto as Exhibit A, and expressly incorporated by reference herein.
Listen Labs represents and warrants that: (i) the Professional Services will be performed in a professional and workmanlike manner in accordance with industry standards; and (ii) the operation of the Services will conform to the Documentation in all material respects.
Termination.
Breach. Either Party may terminate this Agreement immediately if the other Party breaches any material provision of this Agreement and, if such breach is curable, fails to cure such breach within thirty (30) days after receiving written notice of such breach.
Automatic Termination.
This Agreement terminates automatically if no Order Forms are in effect for ninety (90) consecutive days; and
This Agreement shall terminate upon written notice by either Party (i) upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of either Party’s debts, (ii) upon either Party making an assignment for the benefit of creditors, or (iii) upon either Party’s dissolution or ceasing to do business.
Survival. The following Sections survive termination of this Agreement: Customer Feedback (Section 3(b)), Reservation of Rights; Use Restrictions (Section 4), Confidentiality & Non-Disclosure (Section 12), Data Processing Addendum (Section 13), Survival (Section 15(c)), Disclaimer of Warranties (Section 17), No Guarantee of Output and Results (Section 18) Limitation of Liability (Section 19), Indemnification (Section 21), Individual Binding Arbitration (Section 22) and Miscellaneous (Section 23).
Future Functionality. Customer’s execution of this Agreement and use of the Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Listen Labs regarding future functionality or features.
DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY STATED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, (A) THE SERVICES ARE PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND; AND (B) LISTEN LABS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, LISTEN LABS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT ANY OUTPUT IS ACCURATE OR COMPLETE OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION OR OTHERWISE BE READILY AVAILABLE.
NO GUARANTEE OF OUTPUT AND RESULTS. Customer assumes all risk associated with the use of the Services and any reliance on any Output. Customer is solely responsible for independently evaluating, validating, and verifying all Output through appropriate human review and expert consultation before relying on such Output, and Customer bears sole responsibility, and Listen Labs disclaims all liability, for all decisions, actions, and outcomes based on the Services and any Output generated in connection with the Services.
LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, AND TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR: (A) ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, OR (B) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO LISTEN LABS FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY (THE “GENERAL CAP”), IN EACH CASE, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO ANY CLAIMS OR LIABILITIES ARISING UNDER SECTIONS 11 (SECURITY), 12 (CONFIDENTIALITY AND NON-DISCLOSURE), 13 (DATA PROCESSING ADDENDUM), AND 21 (INDEMNIFICATION) (COLLECTIVELY, THE “EXCLUSIONS”); PROVIDED THAT EACH PARTY’S AGGREGATE LIABILITY FOR THE EXCLUSIONS WILL NOT EXCEED THREE TIMES (3X) THE GENERAL CAP.
APPLICABILITY OF DISCLAIMERS AND LIMITATION OF LIABILITY. THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY, STATED HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND APPLY REGARDLESS OF WHETHER ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
INDEMNIFICATION.
By Listen Labs. Except to the extent any claim results from the gross negligence or willful misconduct of Customer, Listen Labs agrees to indemnify, defend and hold harmless Customer, and its subsidiaries, officers, directors, shareholders, employees, and each of their respective successors and assigns from and against all damages, losses, liabilities, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with a third party claim alleging that the Services (excluding Customer Data and Third Party Products) infringes or misappropriates any third party trademarks, copyrights, U.S. patents or other third party intellectual property rights. If a claim of infringement or misappropriation under this Section occurs, or if Listen Labs reasonably determines that such a claim is likely to occur, Listen Labs shall, at its option: (i) obtain a right for Customer to continue using the Services for no additional fee; (ii) modify the Services to make it and/or them non-infringing; (iii) replace the Services with a non-infringing replacement with materially equivalent functionality, features, and performance; or (iv) terminate this Agreement and refund on a pro rata basis any unused fees paid by Customer. Listen Labs will not have any indemnification obligation for a claim of infringement or misappropriation to the extent such claim would not have occurred but for (x) Customer Data, (y) any combination or use of the Services with any other product or system or technologies not supplied or approved by Listen Labs, and/or (z) any refusal by Customer to accept or use a materially equivalent non-infringing replacement. The remedies provided herein shall be the sole and exclusive legal remedies of Customer for any claim of infringement of the Services.
By Customer. Except to the extent any claim results from the gross negligence or willful misconduct of Listen Labs, Customer agrees to indemnify, defend and hold harmless Listen Labs, and its subsidiaries, officers, directors, shareholders, employees and each of their respective successors and assigns from and against all damages, losses, liabilities, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any third party claim arising out of or relating to any claim (a) that the Customer Data violates any third party intellectual property, privacy or other right, or (b) Customer’s breach of Section 4(b).
Notice. A Party’s indemnification obligations under this Agreement are conditioned on the indemnified Party providing prompt written notice to the indemnifying Party of any claim, action, or demand for which indemnification is claimed, provided, however, that any delay in such notice will relieve the indemnifying Party of its indemnification obligations only to the extent such delay materially prejudices the indemnifying Party’s defense. The indemnifying Party shall be entitled to assume control of the defense and any settlement negotiations. In the event the indemnifying Party assumes control of the defense and negotiations, the indemnified Party shall be entitled, at its sole cost and expense, to participate in the defense and negotiations. In the event the indemnifying Party does not assume control of the defense and negotiations, then the indemnified Party may take control of the defense and negotiations, and its reasonable costs and expenses shall be subject to indemnification. The indemnified Party will reasonably cooperate, at the indemnifying Party’s expense, in the defense of such claim as the indemnifying Party may request. The indemnifying Party will not enter into or agree to any settlement that requires any action or admits any liability by the indemnified Party or imposes any restrictions on the indemnified Party, in each case without the prior written consent of the indemnified Party, such consent shall not be unreasonably withheld.
Individual Binding Arbitration. Any claim or controversy arising out of or relating to the Services, and/or this Agreement (including its formation, interpretation, performance and breach) shall be settled by binding arbitration administered by: (a) within the United States, the American Arbitration Association in accordance with its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions, and (b) outside the United States, by the International Arbitration Rules of the International Centre for Dispute Resolution (“ICDR”) in effect at the time of the arbitration. Any judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The Federal Arbitration Act shall govern the interpretation and enforcement of this arbitration provision. Notwithstanding the foregoing, in addition to all other remedies at law or under this Agreement, Listen Labs may enforce its rights in the Listen Labs Property by seeking to obtain equitable relief in any jurisdiction deemed appropriate, without the need to post bond or other security or to prove the inadequacy of monetary damages. In such circumstances the above arbitration requirements do not apply.
Miscellaneous.
Force Majeure. Any delay in the performance of any duties or obligations of a Party will not be considered a breach of this Agreement if the delay is caused by an event beyond its reasonable control, including, without limitation, adverse weather conditions, internet outage or interruption of service, telecommunications or power outage, fire, flood, civil disobedience, labor disruptions, strikes, lockouts, freight, government ordered closures, pandemic, embargoes, terrorism, natural disaster, denial of service attacks, war or acts of God, or any other event beyond the reasonable control of the Party.
Independent Contractors. The Parties to this Agreement are independent contractors. This Agreement does not create a relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party has the authority to bind the other or incur obligations on the other’s behalf without the other Party’s prior written consent.
Severability. The validity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
Modifications. No modification of this Agreement shall be effective unless it is in writing and signed by an authorized representative of each Party.
Publicity. Listen Labs may identify Customer as a user of the Services by referencing Customer’s name and logo, provided that Listen Labs will cease making such references after receiving written notice from Customer to do so. In addition, Customer agrees to reasonably cooperate with Listen Labs in connection with publishing a case study regarding Customer’s use of the Services; provided, however, such case study shall be subject to Customer's prior review and approval, not to be unreasonably withheld.
Choice of Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California without regard to or application of California’s conflict of law principles. The Parties consent to the jurisdiction of the State of California, County of San Francisco, with regard to any controversy or claim arising out of or relating to this Agreement, or the breach thereof. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
Assignment. Neither Party shall assign any of the rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not unreasonably be withheld. However, consent is not required for an assignment of this Agreement in connection with a change of control, merger, stock transfer, sale or other disposition of substantially all of the assets of the assigning Party’s business.
Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
No Waiver. No failure or delay by a Party exercising any right, power or privilege under this Agreement will operate as a waiver thereof.
Exports. Customer shall not, and shall not allow any third party to, export from the United States or re-export or re-transfer any part of the Services: (i) to any country or territory subject to export control embargo or economic sanctions implemented by any agency of the U.S. Government, including but not limited to countries designated under the International Traffic in Arms Regulations (ITAR) or Export Administration Regulations (EAR); (ii) to any person or entity on any of the U.S. Government’s restricted party lists, including the Specially Designated Nationals and Blocked Persons List, the Entity List, the Denied Persons List, or the Unverified List; or (iii) otherwise in violation of any export or import laws, regulations, or requirements of the United States or any applicable foreign agency or authority. Customer represents and warrants that neither Customer nor any of its Affiliates or users are located in, under the control of, or a national or resident of any such restricted country or on any such restricted party list.
Interpretation. Headings are for reference purposes only and do not limit the scope or extent of such section.
Notices. All notices required or permitted to be given under this Agreement will be in writing and delivered by: (i) personal delivery; (ii) certified or registered mail, return receipt requested; or (iii) nationally recognized overnight courier service to: Listen Labs at 85 2nd St, Suite 500, San Francisco, CA 94105 with a copy to legal@listenlabs.ai and to Customer at the address and email provided in the Order Form. Notices shall be deemed given: (a) upon personal delivery; (b) three (3) business days after deposit in the mail; or (c) one (1) business day after deposit with overnight courier.
Entire Agreement. This Agreement and the applicable Order Form comprises the entire agreement between the Parties and supersedes all prior or contemporaneous agreements, written or oral, between the Parties regarding the subject matter contained herein.
Exhibit A
ACCEPTABLE USE POLICY
Purpose of Participant Data. Listen Labs may provide data, including video, audio, text responses, and related materials (“Participant Data”), for use solely in connection with Customer’s internal research, analysis, and insight-generation in connection with each Project (the “Permitted Purpose”). Participant Data is not to be used for public distribution, marketing, resale, or any purpose outside the Permitted Purpose unless expressly authorized in writing by Listen Labs.
Scope of Use.
Internal Use Only: Customer may share Participant Data internally with those employees, contractors, and Affiliates who need access for the Permitted Purpose.
No Identifying Disclosures: Customer shall not publicly disclose Participant Data in a manner that directly identifies individual participants (e.g., by name, voice, image, or other personally identifiable information) without Listen Labs’ prior written consent, except as required by Applicable Law.
Compliance with Laws; Securities Compliance: Customer’s use of Participant Data shall comply with all Applicable Law(s), including data protection and privacy laws (e.g., GDPR and applicable U.S. state laws). Customer shall not use any Output or Participant Data that Customer knows, or reasonably should know, constitutes MNPI (as defined in Section 3(c) of this Exhibit A) in violation of Applicable Law(s). If Customer is subject to securities regulations, Customer represents that its use of the Services complies with its MNPI policies and procedures.
Prohibited Data Collection.
Sensitive Personal Information: Customer shall not intentionally collect, solicit, or request that Participants provide sensitive Personal Data (as defined by applicable data privacy laws) through the Services.
Limitation on Personal Information Collection: Customer shall limit its collection of Personal Data to only that which is reasonably necessary for the stated purpose of each Project. Customer shall not design Projects or use the Services to intentionally collect Personal Data unrelated to legitimate research objectives.
Material Non-Public Information: Customer shall not use the Services to intentionally solicit, collect, or process material non-public information (“MNPI”), including information that could constitute inside information under securities laws or regulations, confidential business information of third parties, or trade secrets not belonging to Customer.
Participant Consent: Where collection of any Personal Information is necessary for the Project purpose, Customer shall ensure appropriate consent mechanisms are in place and shall comply with all Applicable Law(s) governing such collection.
Data Protection and Security Safeguards.
Security Controls: Customer shall implement commercially reasonable measures to protect Participant Data from unauthorized access, disclosure, or misuse.
Security Incidents: In the event of any suspected unauthorized access or disclosure of Participant Data, Customer shall promptly notify Listen Labs and reasonably cooperate to address the Security Incident.
Retention and Deletion: Customer shall retain Participant Data only as long as needed for the Permitted Purpose or as required by Applicable Laws. Upon no longer needing Participant Data, Customer shall securely delete or destroy it.
Restrictions on Use.
No Re-Identification: If Participant Data is provided in de-identified or anonymized form, Customer shall not attempt to re-identify any individual Participant.
No Harmful or Unlawful Use: Customer shall not use Participant Data to harm, harass, defame, discriminate, or violate the privacy of individuals, nor shall Customer use it for any unlawful purpose.
No Reverse Engineering of Services: Customer shall not use Participant Data to discover Listen Labs’ methods, create competing products or services, or conduct unfair benchmarking of Listen Labs’ services.
Additional Terms. If Participants or Listen Labs impose additional written restrictions governing the use of specific Participant Data (e.g., through participant consent forms), Customer agrees to comply with such additional terms. In the event of a conflict, those additional terms shall control to the extent permitted by Applicable Law(s).
Non-Compliance. If Listen Labs reasonably believes Customer’s use of Participant Data is not in accordance with this Policy, Listen Labs may provide written notice of the concern. Both Parties will work in good faith to address the issue. If resolution is not feasible, Listen Labs may exercise its rights under the Agreement, including suspending or terminating Customer’s access to Participant Data.
Policy Updates. Listen Labs may update this Policy to reflect changes in laws, industry standards, or service enhancements. Listen Labs will provide notice of material changes, and continued use of Participant Data following such notice will constitute acceptance of the updated Acceptable Use Policy.