Master Service Agreement

This master services agreement (“MSA” or “Terms”) is entered into as of the latest signature on the Order Form(“Effective Date”), by and between Tofu Technologies, Inc., a Delaware corporation located at 400 Concar Drive, San Mateo, CA 94402 (“Tofu”, “Company”, “Our”, or “We”), and the customer listed in the accompanying Order Form(“Customer”, “Your”, or “You”) (each a “Party”, and collectively the “Parties”).

This MSA, together with the Order Form, constitute the entire agreement between the Parties regarding the subject matter herein. Capitalized terms shall have the meaning set forth herein, unless otherwise defined in the Order Form. In the event of a conflict between the MSA and the Order Form, the terms of the Order Form shall prevail.

PLEASE READ THIS MSA CAREFULLY BEFORE USING THE SERVICE OFFERED BY TOFU. BY MUTUALLY EXECUTING ONE ORMORE ORDER FORMS WITH TOFU WHICH REFERENCE THIS MSA, YOU AGREE TO BE BOUND BY THIS MSA (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA TOFU’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY TOFU SHALL BE DEEMED TO BE MUTUALLY EXECUTED.

Content.

a. Tofu Ownership and License. Tofu retains all right, title, and interest in and to the Service, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Tofu for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Service”and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly set forth in this Agreement.

b. Inputs and Outputs. You may provide information, text, links, graphics, photos, audio, videos, or other materials or arrangements of Customer materials to the Service (“Input”) and receive outputs from the Service based on the Input (“Output”). Input and Output are collectively referred to as “Customer Content”. Tofu makes no representations or warranties with respect to the accuracy of any Outputs. You should not rely on any Outputs without independently confirming their accuracy. Outputs may contain material inaccuracies even if they appear accurate because of their level of detail or specificity. The Service and any Outputs may not reflect correct, current, or complete information. Additionally, due to the nature of generative artificial intelligence models, Outputs may not be unique, and Outputs that the Service generates based on materials submitted by third parties (“Third-Party Outputs”) may be similar or identical to Outputs that the Service generate based on Your Inputs. You acknowledge that Third-Party Outputs are not Your Outputs and that You have no right, title, or interest in or to any Third-Party Outputs.

c. Customer Ownership and License. As between You and Tofu, and to the extent permitted by applicable law, You retain all ownership rights in Input and You own all Output, and Tofu hereby assigns to You all of Our right, title, and interest, if any, in and to Output. By using the Service, You grant Tofu a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute Customer Content in any and all media or distribution methods now known or later developed (for clarity, these rights include, for example, curating, transforming, and translating) for the purpose of providing, promoting, and improving the Service.

d. Customer Representations and Responsibilities.

i. You represent and warrant that You have all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for any Inputs. Further, You agree that You are solely responsible for all use of the Outputs and evaluating the Output for accuracy and appropriateness for Your use case, including by utilizing human review as appropriate.

ii. You represent and warrant that Your use of the Service and any materials generated through the Service shall comply with all applicable laws including without limitation consumer protection, security, and privacy laws. By way of non-exhaustive example, You represent and warrant that any collection and processing by You of any personal data on sites or blogs created with Outputs, and any marketing and other electronic communications sent by You using Outputs, shall comply with all applicable laws. You agree that such compliance is Your sole responsibility, and Tofu disclaims any liability in connection therewith.

iii. You agree that You are responsible for maintaining the confidentiality of Your account login information and are fully responsible for all activities that occur under Your account. You agree to immediately notify Tofu of any unauthorized use, or suspected unauthorized use of Your account or any other breach of security, and Tofu disclaims any liability for any loss or damage arising fromYour failure to comply with the above requirements.

iv. You agree to comply with Tofu's Acceptable Use Policy, which consists of the following provisions (a) through (c):‍

(a) You agree not to use the Services to collect, upload, transmit, display, or distribute any Customer Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right, (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable, (iii) that is harmful to minors in any way, or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.  

‍(b) In addition, you agree not to: (i) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Services unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Services to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Services; or (vi) use software or automated agents or scripts to produce multiple accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).

(c) Tofu reserves the right (but has no obligation) to review, refuse and/or remove any Customer Content in our sole discretion, and to investigate and/or take appropriate action against you in our sole discretion if you violate this Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your Customer Content, terminating your account, and/or reporting you to law enforcement authorities.

Term and Termination; Survival.

a. Term and Termination. This Agreement shall commence upon the Effective Date and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, unless otherwise specified therein, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on such Order Form (the “Initial Term”), and (y) following the Initial Term, shall automatically renew for additional successive periods of equal duration to the Initial Term (each, a “Renewal Term”) unless either Party notifies the other Party of such Party’s intention not to renew no later than thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. In the event of a material breach of this Agreement by either Party, the non-breaching Party may terminate this Agreement by providing written notice to the breaching Party, provided that the breaching Party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Tofu may suspend or limit Customer’s access to or use of the Service if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Tofu’s ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) Tofu shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Tofu shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) Tofu shall reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice.

b. Survival. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. In the case of expiration or termination of this Agreement, upon request by Customer made before, or within thirty (30) days after, the effective date of expiration or termination, Tofu shall make available to Customer a complete download of all Customer Data in a file or database format in Tofu’s discretion. For clarity, any services provided by Tofu to Customer, including the data export set out above, and any assistance in exporting the Customer Data, shall be billable at Tofu’s standard rates then in effect.

Dispute Resolution.

Mandatory Arbitration. You and Tofu agree to resolve any claims relating to or arising out of this Agreement or the Services through final and binding individual arbitration by a single arbitrator, except as set forth under the “Exceptions to Agreement to Arbitrate” below. This includes disputes arising out of or relating to the interpretation or application of this “Mandatory Arbitration Provisions” section, including its scope, enforceability, revocability, or validity. The arbitrator may award relief only individually and only to the extent necessary to redress Your individual claim(s); the arbitrator may not award relief on behalf of others or the general public.

a. Informal Resolution. Before filing a claim against Tofu, You agree to attempt to resolve the dispute by first emailing disputes@tofuhq.com with a description of Your claim and proof of Your relationship with Tofu. We'll try to resolve the dispute informally by following up via email, phone or other methods. If we can’t resolve the dispute within sixty (60) days of our receipt of Your first email, You or Tofu may then bring a formal proceeding.

b. Judicial Forum for Disputes. You and Tofu agree that any judicial proceeding to resolve claims relating to this Agreement or the Services will be brought in the federal or state courts of San Francisco County, California, subject to the mandatory arbitration provisions below. Both You and Tofu consent to venue and personal jurisdiction in such courts. If You reside in a country with laws that give consumers the right to bring disputes in their local courts, this paragraph doesn’t affect those requirements.

c. IF YOU’RE A U.S. RESIDENT, YOU ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS:

Opt out of Agreement to Arbitrate. You can decline this agreement to arbitrate by contacting Tofu disputes@tofuhq.com within 30 days of first registering Your account or agreeing to this Agreement.

Arbitration Procedures. The American Arbitration Association (AAA) will administer the arbitration under its Consumer Arbitration Rules. The AAA’s rules and filing instructions are available at www.adr.org or by calling 1-800-778-7879. The arbitration will be held in the United States county where You live or work, San Francisco (CA), or any other location we agree to.

Arbitration Fees and Incentives. The AAA rules will govern payment of all arbitration fees. The costs and fees of arbitration shall be allocated in accordance with the arbitration provider’s rules, including rules regarding frivolous or improper claims.

Exceptions to Agreement to Arbitrate. Either You or Tofu may assert claims, if they qualify, in small claims court in San Francisco (CA) or any United States county where You live or work. Either Party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to You or Your claim, You agree to the exclusive jurisdiction of the state and federal courts in San Francisco County, California to resolve Your claim.

NO CLASS OR REPRESENTATIVE ACTIONS. You may only resolve disputes with us on an individual basis, and You may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are prohibited.

Severability. If any part of this “Mandatory Arbitration Provisions” section is found to be illegal or unenforceable, the remainder will remain in effect, except that if a finding of partial illegality or unenforceability would allow class or representative arbitration, this “Mandatory Arbitration Provisions” section will be unenforceable in its entirety. If You are found to have a non-waivable right to bring a particular claim or to request a particular form of relief that the arbitrator lacks authority to redress or award according to this “Mandatory Arbitration Provisions” section, including public injunctive relief, then only that respective claim or request for relief may be brought in court, and You and we agree that litigation of any such claim or request for relief shall be stayed pending the resolution of any individual claim(s) or request(s) for relief in arbitration.

MASTER SERVICES AGREEMENT

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