Terms of Services

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY USING THE COMPANY’S SERVICES, YOU AGREE TO THESE TERMS AND CONDITIONS.

The following terms and conditions, as well as any future modifications thereto (the “Agreement”) are a contract between you or the employer or other entity on whose behalf you are entering into this Agreement (“you” or “Customer”) and Proper Technologies, Inc., a Delaware corporation (the “Company”), governing your use of and the Company’s provision of the Services (as defined below). These terms and conditions together with any applicable Quote and Statement of Work (as defined below) will be referred to as the “Agreement.” By using the Company’s services, Customer acknowledges that it has read, understood, accepted, and agreed to be bound by the Agreement, including the most recent version of these terms and conditions. The “Effective Date” of this Agreement is the date Customer accepts and agrees to this Agreement.

EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON ACCEPTING AND AGREEING TO THIS AGREEMENT ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON ACCEPTING AND AGREEING TO THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.

1. Services

1.1 Statements of Work. From time to time, Customer and Company may execute Quotes and statements of work that describe the specific services to be performed by Company, including any work product to be delivered by Company (as executed by the parties, a “Statement of Work”). Each Quote and Statement of Work will expressly refer to this Agreement, will form a part of this Agreement, and will be subject to the terms and conditions contained herein.

1.2 Performance of Services. Company will perform the services specified in each Statement of Work (the “Services”) in accordance with the terms and conditions of this Agreement.

1.3 Changes to Statement of Work. Customer may submit to Company written requests to change the scope of Services described in a Statement of Work (each such request, a “Change Order Request”). Company may, at its discretion, consider such Change Order Requests, but Company has no obligation to do so. If Company elects to consider such a Change Order Request, then Company will promptly notify Customer if it believes that the Change Order Request requires an adjustment to the fees or to the schedule for the performance of the Services. In such event, the parties will negotiate in good faith a reasonable and equitable adjustment to the fees and/or schedule, as applicable. Company will continue to perform Services pursuant to the existing Statement of Work and will have no obligation to perform any Change Order Request unless and until the parties have agreed in writing to such an equitable adjustment.

1.4 Customer Responsibilities. In connection with each Statement of Work, Customer will: (i) provide qualified personnel who are capable of performing Customer’s duties and tasks under the Statement of Work; (ii) perform Customer’s duties and tasks under the Statement of Work, and such other duties and tasks as may be reasonably required to permit Company to perform the Services; and (iii) make available to Company any data, information and any other materials required by Company to perform the Services, including, but not limited to, any data, information or materials specifically identified in the Statement of Work (collectively, “Customer Materials”). Customer will be responsible for ensuring that all such Customer Materials are accurate and complete. Customer assumes all responsibility for setting up the Customer Materials for access by Company, including setting the proper restrictions and access controls.

1.5 Designated Contacts. Each party will designate in each Statement of Work an individual who will be the primary point of contact (the “Primary Contact”) between the parties for all matters relating to the Services to be performed thereunder. A party may designate a new Primary Contact by written notice to the other party.

1.6 Assignment of Personnel. Company reserves the right to select and assign personnel for work under this Agreement based on the skill classifications required and available personnel resources. Company reserves the right to terminate (with or without cause) any Company employee, contractor or agent performing services to Customer. Company reserves the right to reassign any Company employee, contractor or agent performing services to Customer to perform services for other Company clients; however in such an event, Company will assign a replacement resource to perform services to Customer.

1.7 Relationship of the Parties. Company is performing the Services as an independent contractor, is not an employee, agent, joint venturer or partner of Customer, and has no authority to bind Customer by contract or otherwise. Company acknowledges and agrees that its personnel are not eligible for or entitled to receive any compensation, benefits or other incidents of employment that Customer makes available to its employees. Company is solely responsible for all taxes, expenses, withholdings, and other similar statutory obligations arising out of the relationship between Company and its personnel and the performance of Services by such personnel.

2. Payment

Fees and Expenses. For Company’s performance of Services, Customer will pay Company fees calculated and payable in accordance with the terms set forth in the applicable Quote and Statement of Work. In addition, Customer will reimburse Company for all reasonable and customary travel, lodging and other related expenses incurred by Company or its personnel in connection with the performance of Services. At Customer’s request, Company will provide Customer with receipts and other documentation for all such expenses.

3.Ownership.

Subject to Customer’s rights in the Customer Materials, Company will exclusively own all rights, title and interest in and to any software programs or tools, utilities, technology, processes, inventions, devices, methodologies, specifications, documentation, techniques and materials of any kind used or developed by Company or its personnel in connection with performing Services (collectively “Company Materials”), including all worldwide patent rights (including patent applications and disclosures), copyright rights, moral rights, trade secret rights, know-how and any other intellectual property rights therein. Customer will have no rights in the Company Materials except as expressly agreed to in writing by the parties. Nothing in this Agreement will be deemed to restrict or limit Company’s right to perform similar services for any other party or to assign any employees, contractors, or subcontractors to perform similar services for any other party, provided that Company complies with its obligations under Section 4 with respect to Customer Confidential Information.

4. Confidential Information

4.1 Confidential Information. “Confidential Information” means: (i) Customer Materials and Company Materials; and (ii) any business or technical information of Company or Customer that is designated by a party as “confidential” or “proprietary” at the time of disclosure or due to its nature or under the circumstances of its disclosure the party receiving such information knows or has reason to know should be treated as confidential or proprietary.

4.2 Exclusions. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; (iv) is rightfully received by the receiving party from a third party without restriction on use or disclosure; or (v) is disclosed with the prior written approval of the disclosing party.

4.3 Use and Disclosure Restrictions. Each party will not use the other party’s Confidential Information except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees, contractors, and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee, contractor, and subcontractor is bound by a written agreement that contains use and nondisclosure restrictions consistent with the terms set forth in this Section. Each party will employ all reasonable steps to protect the other party’s Confidential Information from unauthorized use or disclosure, including, but not limited to, all steps that it takes to protect its own information of like importance. The foregoing obligations will not restrict either party from disclosing the other party’s Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; (ii) to its legal or financial advisors; (iii) as required under applicable securities regulations; and (iv) subject to customary restrictions, to present or future providers of venture capital and/or potential private investors in or acquirers of such party.

5. No Warranties

THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS-IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS, ALL WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

6. Term and Termination

6.1 Term. This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect for as long as Company is performing Services pursuant to any Quote or Statement of Work.

6.2 Termination. Each party will have the right to terminate this Agreement or any Quote or Statement of Work if the other party breaches any material term of this Agreement or Statement of Work and fails to cure such breach within 30 days after receipt of written notice thereof. Additionally, the Company may terminate this Agreement or any Quote or Statement of Work for convenience with 30 days’ prior written notice to you.

6.3 Effect of Termination. Upon the expiration or termination of this Agreement: (i) Company will promptly return to Customer all Customer Materials and (ii) each party will promptly return to the other party all Confidential Information of the other party in its possession or control.

6.4 Survival. The rights and obligations of the parties contained in Sections 2 (including the Billing and Payment terms included in the applicable Quote), 3, 4, 6.3, 6.4, 7, 8, 9, 10 and 11 will survive the expiration or termination of this Agreement or any Quote or Statement of Work.

7. Indemnification

Customer shall defend, indemnify, and hold Company, its clients, and each of their respective owners, officers, directors, employees, agents, and representatives (collectively, “Representatives”) harmless from and against all losses, liabilities, claims, damages and expenses, including reasonable attorneys’ fees, expenses and costs (collectively, “Losses”), relating to or arising out of any and all claims, demands, charges, complaints, suits, hearings, investigations, judgments, orders, decrees, stipulations, injunctions, actions or other proceedings (collectively, “Claims”) made or brought by any third party to the extent such Claims result from or relate to (i) Customer’s violation of any applicable law or regulation, or (ii) Customer’s negligence or willful misconduct.

Customer will pay any Losses attributable to such Claims that are awarded in final judgment against Company (or are payable in settlement by Company); provided that Company: (i) promptly notifies Customer in writing of the Claim; (ii) grants Customer sole control of the defense and settlement of the Claim; and (iii) provides Customer, at Customer’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the Claim. Customer will have no obligation under this Section to the extent any Claim is based on the negligent acts or willful misconduct of Company or its employees, contractors, or subcontractors.

Company shall defend, indemnify, and hold Customer and its Representatives harmless from and against all Losses, relating to or arising out of any and all Claims made or brought by any third party to the extent such Claims result from or relate to (i) Company’s violation of any applicable law or regulation, or (ii) Company’s gross negligence or willful misconduct. Company will pay any Losses attributable to such Claims that are awarded in final judgment against Customer (or are payable in settlement by Customer); provided that Customer: (i) promptly notifies Company in writing of the Claim; (ii) grants Company sole control of the defense and settlement of the Claim; and (iii) provides Company, at Company’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the Claim. Company will have no obligation under this Section to the extent any Claim is based on the negligent acts or willful misconduct of Customer or its employees, contractors, or subcontractors.

8. Limitation of Liability

IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR COSTS OF PROCURING SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES OR ANY WORK PRODUCT PROVIDED BY COMPANY, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S TOTAL LIABILITY TO CUSTOMER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO COMPANY BY CUSTOMER UNDER THE AGREEMENT FOR THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO ANY LIABILITY HEREUNDER.

9. Non-Solicitation

During the term of this Agreement and for a period of twelve (12) months thereafter, Customer will not recruit or otherwise solicit for employment directly or indirectly any Company employees, contractors, or subcontractors who participated in the performance of Services without Company’s express prior written approval. Notwithstanding the foregoing, a general solicitation to the public to which an employee, contractor, or subcontractor of Company responds shall not violate the terms of this Agreement as long as the foregoing provisions are adhered to by Customer.

10. General Provisions.

10.1 Assignment. Neither party may assign this Agreement without the other party’s prior written consent, except that Company may assign this Agreement, without Customer’s consent, to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger or acquisition, or the sale of all or substantially all of Company’s assets or the sale of that portion of Company’s business to which this Agreement relates. Subject to the foregoing, this Agreement will bind and ensure to the benefit of the parties’ permitted successors and assigns.

10.2 Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of California, excluding its body of law controlling conflicts of law.

10.3 Notices. All notices required or permitted under this Agreement will be in writing and delivered in person, by confirmed facsimile or electronic mail transmission, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth above or to such other address as may be specified by either party to the other party in accordance with this Section.

10.4 Waiver. The waiver of any breach or default of any provision of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent breach or default.

10.5 Entire Agreement. This Agreement, including all Quotes and Statements of Work, constitutes the entire and exclusive agreement of the parties regarding its subject matter and supersedes any and all prior or contemporaneous agreements, communications, and understandings (both written and oral) regarding such subject matter. In the event of any inconsistency between a Quote, any accompanying Statement of Work, and these terms and conditions, the Quote and the applicable Statement of Work will prevail in such order to the extent of such inconsistency. This Agreement may only be modified or any rights under it waived by a written document executed by both parties.

10.6 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.

10.7 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.