Terms of service

Effective as of July 1, 2024.

This Master Subscription Agreement (this "MSA") is entered into as of the effective date listed above (the "Effective Date") by and between Primepoint Labs Inc. ("Primepoint") and the entity listed above ("Customer"). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. General.

1. Order Forms. Customer and Primepoint may, from time to time, enter into order forms outlining (i) Primepoint's hosted services to be provided to Customer (the "Services"), (ii) any implementation services to be provided to Customer (the "Implementation Services"), (iii) the initial subscription term applicable to the Services (the "Initial Subscription Term"), (iv) the fees for access to the Services and/or provision of the Implementation Services (the "Fees"), and (v) any other terms deemed relevant by the parties. When mutually executed, each such order form is an "Order Form" as defined herein. The first Order Form is set forth on Exhibit A and, unless the parties otherwise agree in writing, each subsequent Order Form will be in the same form and format as that set forth on Exhibit A.
2. This MSA. This MSA is incorporated by this reference into all Order Forms. This MSA and all Order Forms are collectively referred to as this "Agreement." Capitalized terms utilized but not defined in this MSA are defined in the Order Form and vice versa. To the extent that a conflict arises between the terms and conditions of an Order Form and the terms and conditions of this MSA, the terms and conditions of this MSA will govern unless the Order Form specifically states otherwise.

2. Rights and Obligations.

1. Access. Subject to Customer's continued compliance with the terms and conditions of this Agreement, upon the parties' mutual execution of an Order Form, during the Term (as defined below), Primepoint will (i) provide Customer with access to the Services described on such Order Form and (ii) use commercially reasonable efforts to provide any Implementation Services described on such Order Form.
2. Customer Obligations. Customer will (i) timely grant Primepoint access to all Customer systems, technology, and Customer Data (as defined below) as reasonably necessary for Primepoint to provide the Services, (ii) be solely responsible for procuring and/or operating systems, software, Internet, and telecommunications services as necessary for Customer to access the Services, and (iii) perform all other responsibilities ascribed to it in an Order Form. Primepoint will not be responsible for delay or failure to provide the Services to the extent attributable to Customer's failure to perform any of the foregoing obligations.
3. Restrictions. The Services are provided solely for Customer's internal use purposes. Customer will not, in whole or in part: (i) modify, copy, disclose, alter, translate or create derivative works of the Services; (ii) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Services; (iii) decompile, disassemble, decode, translate, or reverse engineer the Services or otherwise attempt to learn the source code, structure, algorithms, or internal ideas underlying the Services or reduce the Services by any other means to a human-perceivable form; (iv) copy, frame or mirror any part or content of the Services; (v) access the Services in order to build a competitive product or service; (vi) interfere with or disrupt the integrity or performance of the Services or input, upload, transmit, or otherwise provide any harmful code to or through the Services; (vii) use any data mining, robots, or similar data gathering or extraction methods; (viii) attempt to gain unauthorized access to the Services or its related systems or networks or exceed any Customer authorized user ("User") limitations or other limitations set forth on the Order Form with respect to the Services; (ix) disclose to any third party any performance information or analysis relating to the Services; (x) remove, alter, or obscure any proprietary notices in or on the Services; or (xi) cause or permit any individual to do any of the foregoing. Customer will not assert, nor authorize, assist or encourage any third party to assert, against any Primepoint or its affiliates, any patent infringement or other intellectual property rights infringement claim regarding the Services. Customer is solely responsible for (A) the acts and omissions of its Users and any such acts and any act or omission of any User will, for purposes of this Agreement, be deemed an act or omission of Customer and (B) all activities that occur on Customer's or any User's account for access to the Services.

3. Fees. Customer will pay all Fees to Primepoint as set forth herein. Customer will pay all invoiced Fees (a) in accordance with the invoicing and payment terms set forth in the applicable Order Form or (b) if none are specified in such Order Form, within 15 days after the date of the applicable invoice. Customer will pay all Fees in U.S. dollars and without setoff, counterclaim, deduction, recoupment, or withholding of any kind for amounts owed or purportedly owed by Primepoint under this Agreement, applicable law, or otherwise. Customer is responsible for all taxes on all Fees, excluding any taxes on Primepoint's net income. All Fees are non-refundable and non-cancelable. Any amounts not paid when due will bear interest at 1.5% per month or the maximum rate allowable by law, whichever is less. Primepoint may modify any Fees, in whole or in part, on written notice to Customer.
4. Confidentiality; Data.

1. Confidentiality. "Confidential Information" is any information and materials disclosed or made available by or on behalf of one party (the "Disclosing Party") or that the other party (the "Receiving Party") obtains in connection with this Agreement that is designated as confidential or should be reasonably expected to be confidential or proprietary. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to trade secrets, business, technical and financial information not generally known to the public, such as business plans, strategies, practices, products, and related data. The Receiving Party (i) will maintain in confidence all Confidential Information, (ii) will not use or grant the use of any Confidential Information except to the extent necessary in connection with its activities as expressly authorized by this Agreement, and (iii) will not disclose any Confidential Information except on a need-to-know basis to its directors, officers, employees, and consultants, to the extent such disclosure is reasonably necessary in connection with its activities as expressly authorized by this Agreement. To the extent that disclosure to any person is authorized by this Agreement, prior to disclosure, the Receiving Party will obtain written agreement of such person to hold in confidence and not disclose, use, or grant the use of any Confidential Information except as expressly permitted under this Agreement. The confidentiality and non-use obligations hereunder do not apply to information that (A) is or becomes publicly known through no act or omission of the Receiving Party, (B) was rightfully known by the Receiving Party without confidential or proprietary restriction before receipt from the Disclosing Party, (C) becomes rightfully known to the Receiving Party by a third party without confidential or proprietary restriction from the Disclosing Party, or (D) is independently developed by the Receiving Party without the use of or reference to any Confidential Information.
2. Customer Data. Customer hereby authorizes and instructs Primepoint to, and grants Primepoint a non-exclusive, royalty-free right and license to, (i) use any data or information of or about Customer or its Users that is provided by Customer or such Users to Primepoint or collected through the Services ("Customer Data") to provide the Services to, and communicate with, Customer and Users and (ii) copy, modify, and create derivative works of Customer Data in connection with (A) creating, testing, training and improving Usage Data (as defined below) and (B) monitoring performance of the Services, improving the Services, and/or developing new product or service offerings. Subject to the rights granted under this Agreement, Customer owns and will continue to own all rights (including intellectual property rights), title, and interest in and to Customer Data. Customer is solely responsible and liable for the accuracy, quality, and legality of all Customer Data.

5. Proprietary Rights. Nothing in this Agreement transfers ownership of any technology or intellectual property rights to Customer. Without limiting the foregoing, Primepoint owns and will continue to own all rights (including intellectual property rights), title, and interest in and to (a) the Services and all software, programs, algorithms and other technology therein, including, without limitation, any derivative work, enhancement, update, customization, modification, adaptation, alteration, upgrade, new feature, or other improvement thereof or thereto and (b) aggregations, modifications, analyses, enhancements and derivative works of or regarding Customer Data made by or on behalf of Primepoint or any other data or information developed or processed by Primepoint hereunder that cannot be linked to Customer or any individual ("Usage Data"). To the extent Customer or any User provides Primepoint with any suggestions, comments, or other feedback on the Services or Primepoint ("Feedback"), Customer hereby assigns to Primepoint all rights (including intellectual property rights), title, and interest in and to such Feedback. All Feedback is Confidential Information of Primepoint.
6. Representations and Warranties. Each party represents and warrants that (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation, (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement, (c) the person entering into this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement, and (d) this Agreement is valid, binding and enforceable against it in accordance with its terms. Further, Customer represents and warrants that (i) it possesses all necessary rights and consents to grant Primepoint the rights set forth in this Agreement with respect to Customer Data, (ii) Customer has collected Customer Data in accordance with all applicable laws, rules and regulations, (iii) neither Customer Data, nor Primepoint's use of Customer Data in accordance with this Agreement, will (A) infringe, misappropriate, or otherwise violate any rights of any third party or (B) violate applicable laws, rules, or regulations, (iv) the Customer Data will not include information that relates to or could be associated with an individual, and (v) Customer will use the Services in accordance with all applicable laws, rules, and regulations.
7. Indemnification.

1. By Primepoint. Primepoint will defend Customer against any third-party claim, suit, action, or proceeding (a "Claim") alleging that the Services, as provided to Customer, infringe any intellectual property rights of any third party and will pay all resulting damages finally awarded against Customer by a court of competent jurisdiction or agreed in a settlement approved by Primepoint in accordance with this Section 7. Primepoint's obligations in this Section 7(a) will not apply to the extent the Claim results from or arises in connection with (i) any combination of the Services (or any portion thereof) with any equipment, software, data, or any other materials or technology not provided by Primepoint, (ii) any modification to the Services by any party other than Primepoint or its authorized personnel, (iii) the use of the Services in a manner contrary to the terms of this Agreement, and/or (iv) the continued use of the Services after Primepoint has provided substantially equivalent non-infringing software or services.
2. By Customer. Customer will defend Primepoint and its directors, officers, employees and agents from any Claims, and will indemnify and hold harmless the foregoing from and against all related damages, liabilities, costs and expenses, resulting from or arising in connection with (i) the Customer Data, (ii) any negligence or willful misconduct by Customer or a party acting on its behalf, and/or (iii) any alleged or actual breach of Customer's representations, warranties, or obligations under this Agreement.
3. Infringement Claims. In the event of a Claim pursuant to Section 7(a), or if Primepoint believes that such Claim may be brought, Primepoint may, at its option and expense, (i) replace the Services with a non-infringing equivalent, (ii) modify the Services so they are non-infringing, (iii) procure for Customer the right to continue using the Services, or (iv) terminate this Agreement upon 30 days written notice to Customer. SECTION 7(a) AND THIS SECTION 7(c) SET FORTH CUSTOMER'S SOLE REMEDY AND PRIMEPOINT'S SOLE OBLIGATION FOR THE CLAIMS DESCRIBED IN SECTION 7(a).
4. Procedures. The indemnifying party's indemnification obligations under this Section 7 are conditioned upon the indemnified party (i) giving prompt written notice of the Claim to the indemnifying party once the indemnified party becomes aware of the Claim (provided that failure to provide prompt written notice to the indemnifying party will not alleviate an indemnifying party's obligations under this Section 7 to the extent any associated delay does not materially prejudice or impair the defense of the related Claims), (ii) granting the indemnifying party the option to take sole control of the defense (including granting the indemnifying party the right to select and use counsel of its own choosing) and settlement of the Claim (except that the indemnified party's prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified party), and (iii) providing reasonable cooperation to the indemnifying party, and at the indemnifying party's request and expense, assistance in the defense or settlement of the Claim.

8. Disclaimers; Limitation of Liability. THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. IN NO EVENT WILL PRIMEPOINT BE LIABLE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, FOR ANY (A) SPECIAL, INDIRECT, EXPECTATION, RELIANCE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, OR REPUTATIONAL HARM OR DAMAGE OR (B) AMOUNTS THAT, IN THE AGGREGATE, EXCEED THE FEES PAID BY CUSTOMER IN THE SIX MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
9. Term and Termination; Effect of Termination or Expiration.

1. Term. This Agreement begins on the Effective Date and continues until terminated as set forth herein (the "Term"). Each Order Form begins on the effective date thereof and continues for the Initial Subscription Term, unless earlier terminated as set forth herein or therein. Unless expressly set forth in an Order Form, upon expiration of the Initial Subscription Term, such Order Form will automatically renew in perpetuity for successive subscription terms equivalent in length to the Initial Subscription Term (each, a "Renewal Subscription Term") unless either party notifies the other party in writing within 60 days prior to the expiration of the Initial Subscription Term or the applicable Renewal Subscription Term of its intent not to renew such Order Form.
2. Termination.

1. No Outstanding Order Forms. If no Order Forms are effective between the parties, either party may terminate this Agreement in its entirety for convenience by issuing written notice to the other party of its intent to terminate this Agreement, in which case this Agreement will terminate 30 days after the other party's receipt of such written notice.
2. Material Breach. Either party may terminate this Agreement in its entirety or any Order Form individually upon the other party's material breach thereof that remains uncured within 30 days after such party's receipt of written notice of the breach. Notwithstanding the foregoing and without limiting Primepoint's rights or remedies, Primepoint may immediately suspend or terminate this Agreement in its entirety or any Order Form individually on immediate written notice to Customer if (A) Customer is, or Primepoint reasonably believes Customer is, in breach of Section 2 or (B) Customer does not timely pay all Fees when due.

3. Effect of Termination. Termination of this Agreement will automatically terminate all Order Forms then in effect. Termination of an individual Order Form will not, unless otherwise agreed in writing between the parties, terminate any other Order Forms then in effect. On termination of this Agreement or any Order Form, (i) all rights granted to Customer hereunder or thereunder will immediately terminate, (ii) Customer will pay to Primepoint all Fees owed as of the date of termination or expiration, (iii) the Receiving Party will use commercially reasonable efforts to destroy all Confidential Information disclosed hereunder or thereunder in the Receiving Party's possession or control (provided, that the Receiving Party may retain electronically-archived copies of Confidential Information, subject to the terms and conditions of this Agreement) and (iv) all defined terms and Sections 1(b), 2(c), 3, 4(a), 5, 7, 8, 9(c) and 10 will survive.

10. General.

1. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and there are no agreements or understandings between the parties, express or implied, except as are expressly set forth in this Agreement.
2. Governing Law; Dispute Resolution. This Agreement will be governed by and construed in accordance with the laws of the State of California, without reference to conflict of laws principles, and Customer submits to the exclusive jurisdiction of the federal and state courts in San Francisco, California for any disputes that Customer raises with respect to this Agreement.
3. Audits. Primepoint may, by itself or through an independent third party, audit Customer's use of the Services to verify (i) Fees payable and/or (ii) that Customer is otherwise compliant with the terms and conditions of this Agreement. Customer agrees to (A) maintain complete and accurate books, logs, and other records with respect to Customer's use of the Services and (B) provide reasonable access to Customer's systems, books, logs, and other records for purposes of conducting these audits.
4. Other Miscellaneous. This Agreement may not be modified or amended except by a writing signed by both parties. If any provision of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement will remain valid and enforceable as though such void or unenforceable provision were absent on the date of its execution. The relationship between the parties is that of independent contractors, and neither party has authority to contract for or bind the other party in any manner whatsoever. Notwithstanding any terms to the contrary in this Agreement, Customer consents to Primepoint's use of Customer's name and logo on the Primepoint website and on Primepoint's promotional and marketing related materials, identifying Customer as a customer of Primepoint and describing Customer's use of the Services. Customer may not assign, transfer or delegate this Agreement, nor any right or duty under this Agreement, by merger, acquisition, operation of law, or otherwise, without Primepoint's prior written consent, and any attempted assignment, transfer, or delegation with such consent will be void and without effect. Electronic notice (including email) will satisfy any requirements that notice hereunder be in writing. Written notice is effective on the day of receipt. Primepoint is excused from performance of this Agreement and will not be liable for any delay in whole or in part caused by any event outside of its control.