Magic AI Master Service Agreement
This Master Service Agreement (this "Agreement") is entered into on the date specified in the Client Service Order ("Effective Date") between Magic AI, a Washington corporation(“Magic AI”) and individual or company specified in the Client Service Order. (“Client").  The entire contract between the parties shall consist of this Agreement and one or more Service Order(s). Unless otherwise agreed to by both parties, all future Service Orders entered into between the Client and Magic AI will be bound by this Agreement. All references to Magic AI shall include Magic AI’s affiliates, agents, representatives, suppliers, service providers, contractors and subcontractors.   

In consideration of the mutual promises and upon the terms and conditions set forth below, the parties agree as follows:

  1. Definitions

    1. Confidential Information” means the business, technical and financial information belonging to the disclosing party that is designated in writing as confidential, or that is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed.  Confidential Information includes, without limitation, all software, source code, inventions, algorithms, know-how and ideas and the terms and conditions of this Agreement. Confidential Information does not include information that (i) is previously rightfully known to the receiving party without restriction on disclosure, (ii) is or becomes known to the general public, through no act or omission on the part of the receiving party, (ii) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (iv) is independently developed by the receiving party.

    2. Data” means all data collected, directly or indirectly, by the System, including, but not limited to, sensor data, camera data and any other data or content collected by or through the System.

    3. Hardware” means computer equipment, cameras, sensors and other equipment listed in the Service Order.  

    4. Installation Date” means the date set forth in Service Order or thirty (30) days after the Initial Payment (as set forth in the Service Order) has been received, whichever occurs later.

    5. Intellectual Property” means, without limitation, all patent rights, design rights, copyrights, trade secrets and any other rights associated with the System, Data and/or algorithms.

    6. Premises” means the location(s) where parts or all of the System shall be installed and identified in a Service Order attached to this Agreement.

    7. Product” means Hardware, Software and/or System.

    8. Service Orders” means the document(s) attached to Exhibit A of this Agreement that shall include the list of Hardware, location and details of such installation, all charges and instructions relating to the installation of the System and the Services to be provided to Client.

    9. Services” means the information services provided by Magic AI in conjunction with its StableGuard Horse Monitoring System.  

    10. Software” means all of the software used in collecting, analyzing, storing and presenting the Data collected from and produced by the System.  

    11. Start Date” means the date on which the Services set forth in a Service Order attached to Exhibit A of this Agreement are operational.

    12. System” means the Magic AI StableGuard Horse Monitoring System.  

  2. Nature of Agreement.  This Agreement (including all Service Orders included in Exhibit A and any other exhibits or appendices attached hereto or entered into in connection with this Agreement) establishes the terms under which Client may use the Product and Services and under which Magic AI will provide and maintain the Product and Services.

  3. Hardware

    1. Installation. Client acknowledges that the installation of the System may require drilling into various parts of the Premises as well as other interior or exterior work. Magic AI shall not be liable for loss due to water intrusion, mold, fungi, wet or dry rot or bacteria caused by the installation. Client agrees to pay all reasonable utility charges associated with the subsequent operation of the System (e.g., electric, telecommunications, etc.).  

    2. Maintenance of System.  After the installation of the System, Magic AI will begin to monitor the designated areas at the premises.  Magic AI will utilize the data generated from the system to offer monitoring services relating to horses located on the Premises in the designated areas. Client agrees to use reasonable care when interacting with or around components of the System and agrees to promptly inform Magic AI of any incident that may affect the use or operation of the System.  

    3. Change in System or Service. Magic AI may substitute, change or modify the Software, Hardware and/or Service at any time, but shall not thereby alter the technical parameters of the Services.

    4. Client Use of Hardware.  Client agrees that it will not tamper or interfere with the System nor will it permit others to do so.  Client agrees that, to the extent permitted by applicable law, Magic AI may record and use all communications with anyone at the Premises in the normal course of Magic AI’s business.  Client agrees that Magic AI can make changes to the System and/or data located anywhere in the System, including portions of the System located on the Premises.

    5. Loss or Damage to Hardware.  Client is responsible for the replacement cost of any hardware that is damaged or stolen on the Premises.  Damage caused by normal wear and tear and damage caused by Magic AI shall be exempted from this Section 3.5.  

    6. Safety of Premises.  Client represents that other than the items identified in a Service Order, Client is not aware of any unusual or hazardous conditions on the Premises that would not be reasonably expected in a properly maintained stable.  Magic AI agrees to use reasonable care and obey all enumerated site rules associated with the Premises.

  4. Ownership and License

    1. Ownership.  Client acknowledges that Magic AI retains ownership of all rights, title and interest to all Data and all Intellectual Property.  Magic AI shall have the right to use Data in any way, including but not limited to, developing and/or providing new products and services; improving existing products and services; and complying with all laws, regulations and/or court orders.  Magic AI will use Client information in accordance with Magic AI’s Privacy Policy, which can be found at https://mystableguard.com/legal.  Magic AI reserves the right to update this policy at any time.  Client hereby assigns to Magic AI any and all rights, title and interest in any Intellectual Property arising from any modifications or improvements to the System and/or Services that arise from suggestions, comments and/or proposals from Client (including but not limited to Client employees, contractors or customers).

    2. License. During the term of the applicable Service Order, Magic AI grants Client a non-transferable, non-exclusive revocable license to use the Software in conjunction with the Services.

    3. License Restrictions. Client agrees that it will not itself, or through any parent, subsidiary, affiliate, agent or other third party (a) copy the Software except as expressly allowed under this Agreement. In the event Client makes any copies of the Software, Client shall reproduce all proprietary notices of Magic AI on any such copies; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code from the software; (c) sell, lease, license or sublicense the Software or the documentation; (d) write or develop any derivative software or any other software program based upon the Software or any Magic AI Confidential Information ; or (e) use the Software to provide processing services to third parties, or otherwise use the Software on a 'service bureau' basis.

  5. Pricing and Payment Terms.

    1. Payment Terms.  Client agrees to pay the Initial Fee set forth in Service Order within thirty (30) days of the execution of this Agreement (or, in the event of a Service Order added to this Agreement, thirty (30) days from the execution of the new Service Order).  Client agree to pay all Recurring Charges described in the Service Order on the first business day of the first calendar month in the Recurring Charge period. Client will pay all Non-Recurring Charges described in the Service Order within thirty (30) days of the date of the invoice for such Non-Recurring Charges.  The Recurring Charges, the Non-Recurring Charges and any other charges that become due under this Agreement or any Service Order are hereinafter referred to as the “Charges.” Charges for any partial month shall be prorated.

    2. Payment Methods.  Payment must be made by a credit card maintained on file with Magic AI, electronic funds transfer or such other method as agreed by the parties.  For methods such as credit card, the payment of fees will be automatic on the due date.

    3. Taxes.  Neither party shall be liable for the other party’s tax obligations.  

    4. Late Fees, Interest and Disputes.  If any amount due under this Agreement is not received by its respective due date, in addition to its other available remedies, Magic AI may impose a late charge equal to five percent (5%) of the amount due.  In addition, any past due amounts will accrue interest at the lesser of one and a half percent (1.5%) per month or the highest rate permitted by applicable law. If Client reasonably disputes a Charge, Client agrees to pay the undisputed balance to Magic AI according to the terms outlined in this Section.  All disputes or requests for billing adjustments must be submitted in writing by the due date and submitted with payment of undisputed amounts due in order to be considered a valid dispute. In the event Client disputes a Charge, and the dispute is resolved against Client, then Client will pay the disputed amount together with interest at the rate set forth above from the date the Charge was originally due.  

  6. Term and Termination.

    1. Term.  Initial term shall be two (2) years from the Start Date and shall automatically renew for additional one (1) year terms unless Client notifies Magic AI in writing thirty (30) days in advance of the termination of the current period.  

    2. Termination.  Client may terminate at any time.  

    3. Effect of Termination.  Upon termination of this Agreement or any Service Order or Exhibit hereto for any reason, the following provisions shall survive: Section 4 (Ownership and License), Section 5 (Pricing and Payment Terms), Section 7 (Confidential Information), Section 8 (Limitation of Liability), Section 9 (Disclaimer of Warranties), Section 10 (Consequential Damages Waiver), Section 11 (Indemnifications), Section 13 (Export) and Section 14 (General Provisions).

  7. Confidential Information.  Except as expressly and unambiguously allowed herein, the receiving party will hold in confidence and not use or disclose any Confidential Information and shall similarly bind its employees, consultants, independent contractors and clients in writing.  Upon the expiration or termination of this Agreement, all of the Confidential Information (including any copies) will be returned to the disclosing party, and receiving party will make no further use of such materials. If required by law, the receiving party may disclose Confidential Information of the disclosing party, but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment thereof.

  8. Limitation of Liability.  MAGIC AI'S LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY CLIENT TO MAGIC AI UNDER THIS AGREEMENT. IN NO EVENT SHALL MAGIC AI BE LIABLE FOR ANY LOSS OF DATA, LOSS OF PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT OR THE USE OF THE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF MAGIC AI HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

  9. Disclaimer of Warranties.  EXCEPT AS OTHERWISE STATED HEREIN, MAGIC AI SPECIFICALLY DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THE SYSTEM OR SERVICES PROVIDED BY MAGIC AI HEREUNDER.

  10. Consequential Damages.  EXCEPT AS REQUIRED BY LAW, IN NO EVENT WILL MAGIC AI  BE LIABLE TO CLIENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE, OF THE SERVICES, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF, OR DAMAGE TO, DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF MAGIC AI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  11. Indemnifications.  Client agrees to indemnify, defend and hold harmless Magic AI, licensors and providers of third party services or software (collectively, the “Magic AI Parties”) from all liability (including, but not limited to, attorney's fees and costs) incurred in connection with any claim arising out of: (a) Client’s use of the Product and/or Services; (b) any breach or alleged breach by Client or anyone given access to the Product and/or Services by Client (collectively, the “Client Parties”); (c)any damage caused by Client Parties to the System; or (d) any actual or alleged violation by Client Parties of any applicable law, court order, rule or regulation in any jurisdiction.  Both parties agree that they will not engage counsel to represent the other party, nor consent to any judgment, settlement or other act adverse to that party without that party’s consent.

  12. Export.  The Software and/or Hardware and related technical data may be subject to U.S. export control laws, including without limitation, the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries.  Client shall comply with all such regulations and agrees to obtain all necessary licenses to export, re-export, or import the Software, Hardware and related technical data.

  13. General

    1. Governing Law.  The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of Washington, as if performed wholly within the state and without giving effect to the principles of conflicts of laws.  

    2. Force Majeure.  Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.

    3. No Agency.  Neither party has the right or authority to, and shall not assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.

    4. Marketing; Publicity.  Client agrees to allow Magic AI to state that the Client is a customer on its website and marketing materials.  Magic AI may issue press releases, white papers and case studies in text and video that references the Client and its use of the Product and Services subject to the Client’s prior review and written approval which shall not be unreasonably withheld.

    5. Entire Agreement.  This Agreement and any schedules, exhibits or appendices hereto, as well as all Service Orders and Statements of Work executed by both parties and referencing this Agreement, shall constitute the entire agreement and contains all terms and conditions between Magic AI and Client with respect to the subject matter hereof and all prior agreements, representations, and statements with respect to such subject matter are superseded hereby.  The terms of this Agreement shall control in the event of any inconsistency with the terms of any Service Order, Statement of Work, exhibit, schedule or appendix. This Agreement may be changed only by written agreement signed by authorized representatives of both parties.

    6. No Waiver.  No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches and no waiver of rights under this Agreement by either party shall constitute a subsequent waiver of this or any other right under this Agreement.

    7. Severability.  In the event any of the terms of this Agreement become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this Agreement.  All remaining terms of this Agreement shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph becomes applicable and, as a result, the value of this Agreement is materially impaired for either party, as determined by such party in its sole discretion, then the affected party may terminate this Agreement by notice to the other.  

    8. Counterparts.  This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered (included by electronic transmission or facsimile), shall be deemed an original, and all of which shall constitute the same agreement.

    9. Assignment.  Neither party may, without the prior written consent of the other party (which shall not be unreasonably be withheld) assign this Agreement, in whole or in party, either voluntarily or by operation of law, and any attempt to do so shall be a material default of this Agreement and shall be void.  Notwithstanding the foregoing, a party may assign its rights and benefits and delegate its duties in and obligations under this Agreement without the consent of the other party (i) if necessary to satisfy the rules, regulations and/or orders of any federal, state or local governmental agency or body or (ii) in connection with a merger, reorganization or sale of all or substantially all relevant assets of the assigning party to which this Agreement relates; in each case provided that such successor assumes the assigning party’s obligations under this Agreement.