Master Software and Services Agreement is a contract that governs the relationship between you and PRM Solutions, Inc., a Delaware corporation that does business under the brand name “proton ai”, as well as your use of the services and related materials we provide. Please read it carefully. In this Agreement, the terms “we”, “us” and “Proton” mean PRM Solutions, Inc., and the terms “you” and the “Customer” mean the “Customer” identified on the Order Form. “Agreement” means this Master Software and Services Agreement, together with any other documents and policies referenced in it, including all Order Forms. Each Order Form incorporates this Agreement. Other capitalized terms used below have the meanings specified in the “Definitions” section.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Affiliate” of a person or entity means any other person or entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with that person or entity. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of voting securities, by contract, or otherwise/ownership of more than 50% of the voting securities of an entity.
“Authorized User” means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom a user license has been purchased.
“Customer” has the meaning set forth in the introduction above.
“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services.
“Order Form” means, with respect to any Services, the written form describing the Services subscribed for and to be purchased by the Customer.
“Services” means the distribution growth software-as-a-service platform provided by Proton to the Customer.
“Professional Services” means any professional services related to Customer’s use of the Services, such as consulting or implementation services, provided by Proton to Customer as expressly identified in an Order Form.
“Term” means, with respect to Services each of the respective periods of time during which the Services are provided.
1.1 Right to Access and Use.
This Agreement grants you the right to use the Services during the Term. We will provide your Authorized Users with accounts and access to the Services. Your rights to access and use the Services, and to provide access to your Authorized Users, are subject to your and their compliance with this Agreement. The Services may only be used for your own internal purposes and only by properly Authorized Users.
1.2 Restrictions.
Only your employees or contractors, or employees or contractors of your Affiliates, may be Authorized Users, and you are solely responsible and liable for their use and their acts and omissions in connection with the Services and this Agreement. Customer may not: (a) make the Services available to, or use the Services for the benefit of, anyone other than Customer and the Authorized Users; (b) upload, post, transmit, or otherwise make available to the Services any content that (i) is unlawful or tortious, or (ii) Customer does not have a right to make available under any applicable law or under contractual or fiduciary relationships, or that infringes, misappropriates, or otherwise violates any intellectual property, privacy, publicity, or other proprietary rights of any person; (c) sublicense, resell, time share, or similarly exploit the Services; (d) upload, post, transmit, or otherwise make available any content or information designed to interrupt, interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) reverse engineer, modify, adapt, or hack the Services, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks; or (f) access the Services to build a competitive product or service.
1.3 Your Systems.
Our ability to deliver the Services properly depends on information technology infrastructure not provided by Proton. You promise to keep such systems in sufficiently reasonable and secure condition, and to provide our personnel with reasonable access to them when we reasonably request it as to reasonably enable us to provide the Services according to this Agreement. We are not liable for Service delays, downtime or performance issues caused by your failure to do so or the condition of any systems not provided by us.
1.4 Professional Services.
If Professional Services are purchased in the Order Form, Proton will provide to Customer such Professional Services in accordance with the Order. Unless stated otherwise in the Order Form, any timelines provided in connection with Professional Services are good faith projections and not guarantees.
2.1 Payment.
Your Order Form specifies the fees and expenses you owe us for the Services that you purchase or subscribe for under that Order Form.
2.2 Taxes.
All fees and other amounts payable by you under this Agreement and any Order Form are exclusive of taxes, levies and other assessments. You are solely responsible for all taxes, duties, assessments and other charges imposed by any governmental or regulatory authority on any amounts payable by you under this Agreement, other than any taxes imposed on our income.
2.3 Late Payment.
If you fail to make any payment when due, then in addition to all other possible remedies, we may charge interest on all past-due amounts at the rate of 1.5% per month, or the maximum rate permitted by applicable law, if lower. We may also require you to reimburse us for collection costs. If any charge is more than 30 days overdue, we may suspend the Services until all past-due amounts and interest have been paid. We will not exercise the suspension right if you are reasonably disputing the charges in good faith and cooperating with us to resolve the dispute.
3.1 Initial and Subsequent Terms.
The term of this Agreement commences on the effective date set forth in an Order Form and, unless earlier terminated in accordance with the terms of this Agreement, will continue for the “Initial Term” specified in the Order Form (the "Initial Term”. Thereafter, this Agreement will automatically renew for successive additional periods of one year (each, a “Renewal Term”) unless either party provides the other with written notice of non-renewal at least 60 days prior to the expiration of the Initial Term or the then-current Renewal Term. Customer agrees that Proton may modify the fees for each Renewal Term by providing Customer with written notice of such modification at least 90 days prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable. The Initial Term and each Renewal Term, if any, are collectively referred to herein as the "Term.”
3.2 Termination.
Either party may terminate this Agreement or any Order Form without cause effective as of the end of the then-current Initial Term or Renewal Term by delivering the other party written notice of its non-renewal at least 60 days prior to the end of that term. Either party may terminate this Agreement or any Order Form for cause: (a) effective 30 days from delivery of written notice of any material breach of this Agreement by the other, if the breach cannot be cured or remains uncured following the end of that notice period; or (b) effective immediately upon delivery of written notice, if the other party becomes insolvent, enters bankruptcy proceedings or makes an assignment for the benefit of its creditors.
3.3 Effect of Termination.
Upon termination or expiration of this Agreement, Proton will immediately cease providing the Services, and all rights granted by either party hereunder will immediately terminate, except as otherwise provided in this Agreement. Section 1.2, Section 2.3, Section 3.3, Section 4, Section 5, Section 6.3, Section 7, Section 8 and Section 9 will survive termination of this Agreement
4.1 No Grant of Ownership or License.
Nothing in this Agreement gives you any ownership rights or interests in any of the Services or other information provided by us, including (but not limited to) data, text, software, images, statistics, or other information that make up or are delivered as part of the Services. This Agreement does not grant you a license or other intellectual property right to any software, code, or other intellectual property of any kind involved in the Services. Unless otherwise set forth in the Order Form, Proton retains exclusive ownership of all work product created by Proton in connection with its performance of Professional Services.
4.2 Customer Data.
Nothing in this Agreement grants us any ownership right in Customer Data. You grant us permission to use the Customer Data only as necessary to provide the Services, perform and enforce this Agreement until it is terminated, and as otherwise permitted by this Agreement and applicable law. You represent and warrant to us that you have all right to use and provide us with all of the data and information that makes up the Customer Data. You have sole and exclusive responsibility for compliance with your contractual and legal obligations to third parties related to Customer Data and for the accuracy and quality of the Customer Data you provide us.
4.3 Analytics.
Proton uses machine learning, proprietary algorithms and other analytical tools and methods to build, refine and provide the analytics and other information involved in the services and products we offer. We may generate anonymized and aggregated data based on Customer Data for that and other business purposes. All anonymized, aggregated information derived from Customer Data, monitoring and operating our systems, and providing the Services, is our sole and exclusive property. To be clear, this does not include any Customer Data itself.
4.4 Customer Name.
Customer grants us the right to use your name and logo in the customer lists on our website and in our promotional materials (subject to the other terms of this Agreement). You may revoke that right at any time by written notice.
4.5 Security and Legal Compliance. We may retain and use Customer Data following termination of this Agreement only as necessary to comply with applicable laws and regulations, respond to security incidents and for other security and compliance purposes. All such Customer Data will be treated as Confidential Information.
5.1 Confidential Information.
“Confidential Information” means all information disclosed by either the Customer or PRM (the “Disclosing Party”) to the other party (“Receiving Party”), regardless of how it is communicated, that is marked as confidential or would reasonably be considered confidential or proprietary to the Disclosing Party. Your Confidential Information includes Customer Data; ours includes the Services and their contents. The terms of this Agreement and all Order Forms are Confidential Information of both parties. Confidential Information of each party also includes (but is not limited to) its business and marketing processes, product plans and designs, and technology and technical information. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction before disclosed by the Disclosing Party, (b) was or becomes generally known by the public without any breach of duty owed to the Disclosing Party, (c) was or is received by the Receiving Party on a non- confidential basis from a third party without any breach of duty owed to the Disclosing Party; or (d) was or is independently developed by the Receiving Party without reference to or use of any of the Disclosing Party’s Confidential Information.
5.2 Protection of Confidential Information.
From and after the date of this Agreement and for 2 years after its termination, the Receiving Party will (a) treat all Confidential Information of the Disclosing Party as confidential with at least as much care as it uses to protect its own similar confidential information, but always at least reasonable care; (b) not use any Confidential Information of the Disclosing Party for any purpose except as permitted in this Agreement or authorized in writing by the Disclosing Party; and (c) not communicate or disclose any Confidential Information to any other person, except to parties who need to know it for the purposes of this Agreement and are subject to confidentiality obligations at least as strict the obligations of the parties under this Agreement. Within five (5) days of termination of this Agreement, each party will return or destroy all of the Confidential Information of the other and, if requested, will certify in writing that it has done so within five (5) days of receipt of that request.
5.3 Compelled Disclosures.
The Receiving Party may disclose Confidential Information of the Disclosing Party to where required by law to do so, provided it gives the Disclosing Party prompt notice of the compelled disclosure sufficient to allow it a reasonable opportunity to contest disclosure or seek a protective order and reasonably cooperates with those efforts. When compelled, the Receiving Party will only disclose the minimum amount of Confidential Information required to comply with the law.
6.1 Mutual Representations and Warranties.
Each of the parties represents and warrants that it validly exists and has all right and authority to enter into and perform this Agreement under applicable law, and that this Agreement is valid and legally binding on it, enforceable in accordance with its terms.
6.2 Customer Warranty.
Customer warrants that it has obtained and will maintain all rights, consents, and permissions necessary for Customer to make available the Customer Data to Proton for its use as contemplated herein.
6.3 NO WARRANTIES.
EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. PROTON SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES. PROTON DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET ANY OF THE CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER SYSTEM OR SOFTWARE, OR BE SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. ALL THIRD-PARTY MATERIALS ARE ALSO PROVIDED ONLY “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND FROM PROTON.
7.1 Company Indemnification.
Proton will defend Customer and its Affiliates from and against any lawsuit or proceeding brought by a third party to the extent alleging that Customer’s use of the Services as permitted hereunder infringes or misappropriates such third party’s intellectual property rights, and Proton will indemnify Customer and its Affiliates for any damages and any reasonable attorneys’ fees finally awarded against them arising from such lawsuit or proceeding; provided, however, that Proton will have no liability under this Section to the extent any such lawsuit or proceeding arises from: (a) Customer Data; (b) Customer’s or any of its Affiliates’ or Authorized Users’ negligence, misconduct, or breach of this Agreement; or (c) any modification or combination of the Services that is not performed or approved by Proton.
7.2 Company Indemnification.
Customer will defend Proton and its Affiliates from and against any lawsuit or proceeding brought by a third party to the extent alleging that any Customer Data infringes, misappropriates, or otherwise violates the rights, including privacy and publicity rights, of any other party, or that Customer’s or any Authorized User’s particular use of the Services violates applicable law, and Customer will indemnify Proton and its Affiliates for any damages and any reasonable attorneys’ fees finally awarded against them arising from such lawsuit or proceeding; provided, however, that Customer will have no liability under this Section to the extent any such lawsuit or proceeding arises from Proton’s or any of its Affiliates’ negligence, misconduct, or breach of this Agreement.
7.3 Procedures.
The indemnified party will provide the indemnifying party with: (a) prompt written notice of any matter that is subject to indemnification hereunder; (b) the right to assume the exclusive defense and control of any such matter (provided that the indemnified party may participate in the defense at its own expense); and (c) cooperation with any reasonable requests assisting the indemnifying party’s defense of such matter. The indemnifying party may not settle any such lawsuit or proceeding without the indemnified party’s prior written consent.
7.4 Exclusive Remedy.
This Section 7 states the indemnifying party’s sole liability, and the indemnifying party’s exclusive remedy, for any type of claim described in this Section 7.
8.1 EXCLUSION OF DAMAGES.
IN NO EVENT WILL EITHER PARTY OR ANY OF ITS AFFILIATES BE LIABLE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE THEORY OF LIABILITY OR TYPE OF CLAIM, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT, OR DIMINUTION IN VALUE; (B) COST OF REPLACEMENT GOODS OR SERVICES; (C) LOSS OF GOODWILL OR REPUTATION; OR (D) ANY OTHER FORM OF CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER ANY NOTIFIED THAT SUCH LOSSES OR DAMAGES WERE POSSIBLE OR FORESEEABLE OR WHETHER ANY OTHER REMEDY WOULD OTHERWISE FAIL OF ITS ESSENTIAL PURPOSE.
8.2 CAP ON MONETARY LIABILITY.
OBLIGATIONS UNDER SECTION 2, A PARTY’S LIABILITY FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 ABOVE OR IN CASES OF WILLFUL MISCONDUCT, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY OR TYPE OF ACTION, EXCEED THE TOTAL AMOUNTS PAID FOR THE SERVICES IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9.1 Further Assurances.
Each party agrees that, at the other party’s reasonable request and sole expense, it will take whatever further actions (including signing documents) may be reasonably necessary to give full effect to intent of the parties under this Agreement.
9.2 Relationship of the Parties.
Nothing in this Agreement creates any agency, partnership, joint venture, or other kind of mutual enterprise, or any employment or fiduciary relationship between the parties.
9.3 Entire Agreement.
This Agreement, together with all other agreements, exhibits attachments and policies incorporated in it by reference, constitutes the entire agreement of the parties relating to its subject matter and supersedes all prior and contemporaneous understandings related to that subject matter.
9.4 Assignment.
The Customer may not assign or sublicense any of its rights or delegate or transfer any of its obligations under this Agreement without Proton’s prior written consent. Any merger, consolidation or reorganization resulting in a change in control of the Customer will be such an assignment. No assignment, sublicense, delegation or transfer will relieve Customer of any liability under this Agreement. This Agreement is binding upon and inures to the benefit of the parties and their successors and permitted assigns.
9.5 Force Majeure.
Proton will not be considered to be in breach of this Agreement or be liable for any failure or delay in performing its obligations caused by circumstances beyond its reasonable control, such as flood, fire, earthquake or natural disaster, terrorism, invasion, pandemic, civil unrest, embargo or blockade, state of emergency, labor stoppage or slowdown, change in applicable laws or regulations, government shutdown, or power, telecommunications or transportation outage. Either party may terminate this Agreement if such an event materially affecting the other party’s performance continues substantially uninterrupted for 30 days or more. In such an event, Proton will use commercially reasonable efforts to end the failure or delay and minimize the effects of the event.
9.6 No Third-Party Beneficiaries.
Nothing in this Agreement is intended to give any other person any legal or equitable right, benefit or remedy.
9.7 Amendment and Modification; Waiver.
No amendment, modification or termination of this Agreement is effective unless it is in writing. No waiver of any of the provisions of this Agreement will be effective unless stated in writing by the waiving party. No failure or delay in exercising any right or remedy under this Agreement will be a waiver of it, nor will any single or partial exercise preclude any other or further exercises.
9.8 Severability.
If any term of this Agreement is adjudicated to be invalid or unenforceable in any jurisdiction, then the other provisions of this Agreement will remain in effect to the maximum possible extent under applicable law, and the parties will perform it as modified to give the greatest possible effect to their original intent.
9.9 Governing Law; Submission to Jurisdiction.
This Agreement is governed by the internal laws of the Commonwealth of Massachusetts without giving effect to any choice- or conflict-of-law provision, rule or principle that would require or permit the application of the laws of any other state. Any Action arising out of or related to this Agreement will be instituted exclusively in the courts of the United States or the courts of the Commonwealth of Massachusetts. Each party irrevocably submits to the exclusive jurisdiction of such courts in any such Action.
9.10 WAIVER OF JURY TRIAL.
EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE ARISING OUT OF THIS AGREEMENT.
9.11 Cumulative Remedies.
Except where explicitly stated otherwise, all remedies available under this Agreement are cumulative and in addition to all other remedies available under applicable law, including specific performance.
9.12 Attorneys’ Fees.
The prevailing party in any Action will be entitled to recover its attorneys’ fees and court costs from the non-prevailing party. Where relative liability is apportioned between the parties, each will be entitled to recover its attorneys’ fees and court costs in proportion to relative share of total aggregate liability apportioned to the other.
9.13 Counterparts.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission has the same legal effect as delivery of an original signed copy.
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