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Terms of Service

PROMETHIUM TERMS OF SERVICE

Please read these Promethium Terms of Service (this “Agreement“) carefully, as it governs Your access to and use of the Promethium Services (defined below) by You and/or the Entity (defined below) that you are acting on behalf of (as applicable) in obtaining access to the Promethium Service (“Customer” or “You“/“Your”). This Agreement is by and between Promethium, Inc. (“Promethium“) and Customer. Promethium and Customer may be referred to collectively as the “Parties” or individually as a “Party“.

​This Agreement takes effect on the date that You sign the related Order Form (“Order”), or if Promethium signs on a later date than You, then on such later date (“Effective Date”). IF YOU SIGN THE ORDER ON BEHALF OF A LEGAL PERSON SUCH AS A COMPANY, ORGANIZATION OR GOVERNMENT AGENCY (“Entity“), on behalf of such Entity, You: (a) acknowledge that You have read and understand this Agreement; (b) represent and warrant that You have the right, power, and authority to enter into this Agreement and have legal authority to bind such Entity; and (c) accept this Agreement on behalf of such Entity and agree that such Entity is legally bound by its terms.

​Once the Order is fully executed, You and any individual authorized by Customer (“User”) may access and use the Promethium Service. Customer may also include its Affiliates, defined below, and Affiliates to be included should be set forth in an Order. This Agreement includes and incorporates the Order(s) and any exhibits attached hereto or to which these Terms of Service link.

Customer’s authorized Users gain access to their or their Entity’s subscription to Promethium’s Instant Data Fabric solution via Promethium’s Application Client, which is installed locally (on-premise) for security and other reasons as more fully explained below. Promethium’s Service enables teams to access, analyze, and build data products rapidly without having to move data, thereby enterprise-grade security and governance.

​1. THE SERVICES​

(a) Performance of Service. Promethium grants to Customer and its Affiliates a non-exclusive, nontransferable (unless otherwise indicated herein), worldwide license and right to access and use the Service (“Subscription”) for the term set forth in the Order (“Subscription Term”). The “Service” means (i) Promethium’s proprietary data navigation platform/software, Application Client software, and any other software set forth in the Order including all updates and upgrades to such software during the Subscription Term (collectively, “Software”); (ii) Promethium’s know-how, proprietary tools and data, trade secrets and other technologies made available via the Service; (iii) all improvements, modifications and derivative works of any of the foregoing; (iv) Documentation; (v) support and maintenance services provided as an integral part of the Subscription (i.e., Support Services as more fully described in Schedule A to these Terms of Service); and (vi) all patent rights and applications, inventions, copyrights, trademarks, trade secrets, know-how, data and database rights, design rights, mask work rights and similar rights in the foregoing software and services recognized anywhere in the world (“Intellectual Property Rights”). When “Services” is used (plural), it generally refers to (a) the Service, (b) included Support Services, and (c) any Professional Services for which Customer has engaged Promethium. The “Application Client” is Promethium’s client software that is installed on Customer’s premises or other Customer-controlled environment(s) or system(s) as designated in the applicable Order through which Customer may integrate its Customer Data with, and access the functions of, Promethium Software; this on-premise software ensures that Customer Data accessed and used by Customer and its Users remains securely behind Customer’s firewall at all times. As soon as reasonably practicable after configuration of the Application Client, Promethium will provide to Customer the necessary passwords and network links or connections to allow Customer and its Users to access the Service including Documentation. “Documentation” means text, graphical and help documentation, whether in electronic or printed format, that describes the features, functions and operation of the Service.

(b) ​​Certain Service and Use-Related Definitions. “Customer Data” means all data, including personal data/information, other information, records and content that is provided, transmitted, imported, edited, authored, generated, managed or otherwise submitted by Customer and its Users to the Service per the Agreement. In this Agreement, the term “Customer” shall include its Affiliates, unless the context requires otherwise. “Affiliate” means any legal person that directly or indirectly controls, is controlled by or is under common control with Customer, where “control” means the direct or indirect ownership of at least 50% of the voting equity of the controlled party, or the ability to direct the management of the controlled party by contract. From time to time, Promethium and Customer may execute statements of work (“SOWs”), that describe the specific services to be performed or made available by Promethium such as professional services.

​​(c) Schedule. Other than with respect to the Subscription Term or other commencement date of any licenses or access rights to the Service, any schedule or date in a SOW that relates to Promethium’s performance under this Agreement is an estimate only and is not a commitment to a fixed date. Promethium will notify Customer if it is unable to meet a date specified in an Order or SOW, and Promethium will use reasonable efforts to meet any alternative date provided to Customer.

​(d) Access to Service and Usage Restrictions. The Subscription provides Users with access to the Service solely for internal use by Users for the benefit of, or in relation to, the operation of Customer’s business. Customer will be responsible for all acts and omissions of its Affiliates, and its and their Users. Customer will not, and will not permit any Users to: (i) copy or duplicate the Service, including without limitation the Application Client, make any copies of Documentation except to the extent necessary to use the Service, or create any derivative work or product from any of the foregoing, except with the prior written consent of Promethium in each instance; (iii) interfere or attempt to interfere in any manner with the functionality or proper working of any of the Service; (iv) extract or attempt to extract any driver keys or any other secrets and/or Software contained in the Application Client; (v) remove, obscure or alter any notice of any intellectual property or proprietary right appearing on or contained within the Service or Documentation; (vi) authorize or permit use of the Service by persons other than authorized Users; (vii) use the Service or Documentation or any other Confidential Information of Promethium to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Service; or (viii) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, the Service or any software contained therein. In using the Service, Customer will further comply with the Documentation and any best practices and industry specifications.

(e) ​Suspension. Notwithstanding anything to the contrary in the Agreement, Promethium may terminate Customer’s and any User’s access to all or any portion of the Services if: Promethium reasonably determines that (i) there is a threat to or attack on any the Service or related software; (ii) Customer’s or any User’s use of the Service disrupts or poses a security risk to the Service or related software or to any other customer or vendor of Promethium; (iii) Customer or any User is using the Service for fraudulent or illegal activities; (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding under any applicable law; or (v) Promethium’s provision of the Service to Customer or any User is prohibited by applicable law. Promethium will make commercially reasonable efforts to provide written notice of any such Service suspension to Customer and to provide updates regarding resumption of access to the Service following any Service suspension. Promethium will use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to Service suspension is cured, and will not be responsible for damages caused by a Service suspension.

(f) Minimum Technical Requirements. Customer will bear sole responsibility for providing and ensuring that its computer hardware equipment owned or controlled by Customer (including equipment purchased by Customer from Promethium pursuant to a separate Order) conforms to Documentation and specifications provided by Promethium in its installation guide, and that it provides and maintains computer systems, networks, telecommunications systems, Internet access, third party services, equipment, hardware, or any other materials or conditions required to meet the minimum technical requirements specified by Promethium to operate the Services. Promethium will have no liability under this Agreement for any damages arising, in whole or in part, from Customer’s non-compliance with the foregoing requirements.

(g) Order Forms. “Order” means an order form/document executed by both Parties that details the Subscription(s) purchased by Customer, including the Subscription quantities, Subscription Term, associated fees, the Support Services, and other related details. If multiple Order Forms are executed related to this Agreement, each Order Form will each have a unique identification and each such Order Form will form a separate contract between the Parties governed by these Terms of Service. Customer may require a purchase order, however, no provisions in such purchase order additional to or in conflict with the Order and this Agreement will have any force or effect. An Order may contain special terms unique to that particular Order, which may be used to modify these Terms of Service if that intention is clearly reflected by the Parties.​

​2. FEES AND PAYMENT.

(a) Fees. Customer will pay Promethium the fees, charges and expenses set forth in any Order, which fees will be invoiced in writing by Promethium to Customer annually in advance for any Subscription Term, unless otherwise indicated in the Order, or for certain professional services if applicable, and in any case payable to Promethium within thirty (30) days after the date of such invoice. Customer shall be entirely responsible for all payment and other obligations of its Affiliates and of all Users, unless the Parties agree otherwise in writing

​(b) Payments. All payments made under this Agreement to Promethium will be made in U.S. dollars by wire transfer or ACH of immediately available funds to a bank account designated by Promethium, or such other payment method mutually agreed by the Parties, and will be non-refundable unless otherwise indicated herein. Any amounts due to Promethium hereunder that are not paid when due will accrue late charges at the lesser of a rate of 1.5% per month or the highest rate permitted by applicable law until paid in full. Customer will reimburse Promethium for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting overdue amounts hereunder. Neither Party will have any right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement for any reason other than manifest error. Customer must notify Promethium in writing of any dispute or disagreement with invoiced amounts within thirty (30) days after receipt of invoice. Absent such notice, Customer will be deemed to have agreed to the invoiced amounts on expiration of the 30-day period.

(c) Taxes. All fees and other amounts payable under this Agreement are exclusive of all applicable sales, use, value-added and other taxes and any applicable export fees, customs duties or similar charges. Customer will be responsible for payment of all such taxes (other than taxes based on Promethium’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights hereunder, or the provision of Services. Customer will make all payments to Promethium under this Agreement free and clear of, and without reduction for, any withholding taxes imposed by any country, unless otherwise agreed in writing. Any taxes imposed on any payments to Promethium will be Customer’s sole responsibility and Customer will provide Promethium with official receipts issued by the appropriate taxing authority, or such other evidence as Promethium may reasonably request, to establish that such taxes have been paid

3. PROPRIETARY RIGHTS.

(a) Ownership of Promethium Technology. Except as set forth herein, and unless otherwise expressly agreed in the applicable Order Form, as between Promethium and Customer, Promethium is and will remain the sole owner of all right, title and interest in (including all Intellectual Property Rights) in and to all Promethium software and Services.

(b) Restriction on Promethium Technology. Customer will ensure that all proprietary rights notices on associated Documentation or Promethium software or content are reproduced and applied to any copies. Customer agrees not to cause or permit the reverse engineering or disassembly of any Software or of any methods or tools used in the creation of such software, or any decompilation thereof except to the extent permitted by applicable law, or any other method of attempting to derive software source code from object code.

(c) Customer Data. Customer retains ownership of all Customer Data. Promethium acknowledges and agrees that it shall not access or use any Customer Data other than in accordance with this Agreement or Customer’s written instructions.

(d) Third Party Materials. The Services and Software may include, or may provide Customer with access to, software, source code, hardware or other technology licensed to Promethium from third parties, and which may be owned by such third parties (collectively, “Third Party Materials”). Customer acknowledges and agrees that Third Party Materials are provided solely on an “AS IS” basis, and that Promethium does not make any warranties regarding Third Party Materials and is not responsible for the operation or failure of, or any errors or bugs in, any Third Party Materials, provided that Promethium will pass through any applicable warranties from the third-party provider of such Third Party Materials to the maximum extent permitted by such third parties.

(e) Feedback. From time to time Customer may provide Promethium with suggestions, comments and feedback with regard to the Services, Software or other Promethium Technology (collectively, “Feedback”). Customer, hereby grants Promethium a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Promethium’s business, including, without limitation, the testing, development, maintenance and improvement of the Services and Promethium software.

4. CONFIDENTIAL INFORMATION.

(a) Any information that one Party provides to the other Party during the Subscription Term that is identified at the time of disclosure as confidential or, given the circumstances of disclosure or the nature of the information, reasonably should be considered to be confidential will be “Confidential Information” of the disclosing Party (the “Disclosing Party”). For clarity, the Promethium software comprising the Services including without limitation the Application Client will be deemed the Confidential Information of Promethium hereunder.

(b) Each Party (the “Receiving Party”) will maintain the other Party’s Confidential Information in strict confidence and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or enforce its rights under this Agreement. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except: (i) to those Affiliates, employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform its obligations or exercise or enforce its rights under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement; or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.

(c) Nothing in this Agreement will prohibit or limit either Party’s use of information: (i) rightfully known to it prior to receiving it from the Disclosing Party (as can be demonstrated by reasonable supporting evidence and written documentation); (ii) independently developed by or for it without use of or access to the other Party’s Confidential Information (as can be demonstrated by reasonable supporting evidence and written documentation); (iii) acquired by it from a third party not known after reasonable inquiry to be under an obligation of confidence with respect to such information; or (iv) which is or becomes publicly available through no breach of this Agreement.

(d) Confidential Information shall remain subject to the terms of this Section 4 for period of three (3) years after the expiration or termination of this Agreement. Protection of any trade secret will last as long as such information continues to be protected as a trade secret by Disclosing Party.

​​5. REPRESENTATIONS AND WARRANTIES; OBLIGATIONS.

(a) General. Each Party hereby represents and warrants to the other Party, as of the Effective Date, that:

(i) Such Party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof;

(ii) Such Party has taken all necessary action on its part to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder, and has obtained all rights and consents necessary to grant the licenses set forth herein;

(iii) This Agreement, upon execution of the related Order, will be deemed to have been duly executed and delivered on behalf of such Party, and constitutes a legal, valid, binding obligation, enforceable against it in accordance with the terms hereof; and

(iv) Entry into this Agreement by such Party does not conflict with any agreement or any provision thereof, or any instrument or understanding, oral or written, to which it is a party or by which it is bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over such Party.

(b) Warranty. Promethium warrants that: (i) the Software will substantially conform to the requirements and specifications for such Software and (ii) the Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards, in each case at the time of delivery to Customer. This warranty will be in effect for a period of thirty (30) days from the delivery of any Software or Service(s). As Customer’s sole and exclusive remedy and Promethium’s entire liability for any breach of the foregoing warranty, Promethium will, at its sole option and expense, promptly re-perform any Services that fail to meet this limited warranty or refund to Customer the fees paid for the non-conforming Software or Services.

(c) Customer Warranty. Customer warrants that it will comply with all applicable laws relating to the collection, use, processing, security, and transfer of Customer Data, if any, that it provides to Promethium, including any data that alone or in combination can be used to identify an individual (“Personal Data”). To the extent that Customer (and any User), through or in connection with the use of the Service, collects, uses, stores, processes, or discloses data, including Personal Data, from any other user or third-party, Customer (and each User) hereby warrants that it shall accurately and adequately, and in full compliance with all applicable laws, obtain any necessary consents and make any required disclosures, either through a privacy policy or as otherwise as mandated by applicable laws, with respect to how Customer (and each User) collects, uses, stores, processes and/or discloses data including, as applicable, when third parties may store, use, and process Customer Data while providing products and services to Customer.

(d) Customer Responsibilities. Customer will promptly cooperate with and assist Promethium, in order to optimize the Services during their performance. Customer will make available in a timely manner, at no charge to Promethium, all technical data, computer facilities, programs, files, documentation, test data, sample output, and other information and resources of Customer specified in any applicable Order Form or otherwise reasonably required by Promethium for the performance of the Services or any professional services requested. Customer will be responsible for, and assumes the risk of, any problems or delays resulting from, the content, accuracy, completeness and consistency of all data, materials and information supplied by Customer. Customer agrees that Promethium is not responsible for delays attributable to Customer and that any delay caused by Customer actions or omissions will automatically extend the time for Promethium’s performance of the Services.

(e) DISCLAIMER.

(i) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, PROMETHIUM’S PROPRIETARY TECHNOLOGY , MATERIALS, SOFTWARE, DATA, HARDWARE, EQUIPMENT AND/OR SERVICE(S) PROVIDED OR LICENSED BY PROMETHIUM ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND PROMETHIUM EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY INCLUDING, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PROMETHIUM MAKES NO WARRANTY, AND EXPRESSLY DISCLAIMS ANY WARRANTY, THAT IS BASED ON TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. PROMETHIUM DOES NOT WARRANT THAT THE SERVICE(S), SOFTWARE OR ANY OTHER INFORMATION OR MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. Customer shall have recourse only to the manufacturer of any third-party hardware or other equipment it procures, as applicable, for any claims, problems, demands and issues with or relating to the hardware and other equipment.

(ii) Promethium will have no responsibility to review information posted by Customer or its Users, or for any data processing instructions it undertakes at the direction of Customer. Promethium will have no liability as to the accuracy of any content posted by Customer or its Users. CUSTOMER ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR ANY CUSTOMER DATA THAT CUSTOMER CHOOSES TO MAKE PUBLIC OR AVAILABLE TO THIRD PARTIES OR THAT IT INSTRUCTS PROMETHIUM TO PROCESS OR MAKE AVAILABLE TO THIRD PARTIES, INCLUDING FOR ENSURING THAT SUCH DATA HAS BEEN COLLECTED, USED, TRANSFERRED AND DISCLOSED IN FULL COMPLIANCE WITH ALL APPLICABLE LAWS AND CUSTOMER’S PRIVACY POLICY AND/OR OTHER DISCLOSURES RELATING TO THE COLLECTION, USE, TRANSFER, SECURITY AND DISCLOSURE OF CUSTOMER DATA. CUSTOMER HEREBY RELEASES PROMETHIUM FROM ALL LIABILITY RELATED TO SUCH DISCLOSURES.

6. INDEMNIFICATION.

(a) Promethium Indemnification. Subject to Section 6(c), Promethium will defend, indemnify and hold Customer and its Affiliates (together with their respective officers, directors, employees and agents) harmless from and against any and all damages, losses, liabilities and expenses (including reasonable attorneys’ fees) (“Damages”) arising from any claim by a third party to the extent arising from Promethium’s (or any of its Affiliates’) fraud or intentional misconduct in the performance of the Services under this Agreement, or alleging that Promethium software or Services infringe, misappropriate or otherwise violate any Intellectual Property Rights of a third party except to the extent such underlying third party claim or Damages arise from or as a result of (A) any use of Software or Services by or on behalf of Customer that is not authorized under this Agreement or done pursuant to Promethium’s written instructions, (B) modification of any Software or Services by any legal or natural person other than Promethium of its personnel, (C) the combination, operation or use of any of the Software or Services with any other software, hardware, data or technology not provided by Promethium, (D) any Customer Data, (E) any changes made to Software or Services in compliance with specifications or instructions provided by Customer, or (F) failure to install the latest updated version of Software or the Service as directed by Promethium.

(b) Customer Indemnification. Subject to Section 6(c), Customer will defend, indemnify and hold Promethium and its Affiliates (together with their respective officers, directors, employees and agents) harmless from any and all Damages arising from any claim by a third party to the extent arising from (i) Customer’s or any of its Affiliates’ fraud or intentional misconduct in connection with the receipt of the Services under this Agreement; or (ii) Promethium’s use and receipt of Customer Data in accordance with the Agreement.

(c) Indemnification Procedures.

(i) The Party seeking indemnification under ‎Sections 6(a) or 6(b), as applicable, (the “Indemnified Party”) will give prompt notice in writing to the Party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim or the commencement of any action by any third party (“Third Party Claim”) in respect of which indemnity may be sought under such Section. Such notice will set forth in reasonable detail such Third Party Claim and the basis for indemnification (taking into account the information then available to the Indemnified Party). The failure to notify the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure has actually and materially prejudiced the Indemnifying Party.

(ii) The Indemnifying Party will be entitled to participate in the defense of any Third Party Claim and, subject to the limitations set forth in this Section, will be entitled to control and appoint lead counsel for such defense, in each case at its own expense; provided that prior to assuming control of such defense, the Indemnifying Party must acknowledge in writing that it would have an indemnity obligation for the Damages resulting from such Third Party Claim as provided under this ‎Section 6.

(iii) The Indemnifying Party will not be entitled to assume or maintain control of the defense of any Third Party Claim if (A) the Indemnifying Party does not timely deliver the acknowledgment referred to in ‎Section 6(c)(ii); (B) the Third Party Claim relates to or arises in connection with any criminal action or investigation; or (C) the Third Party Claim seeks an injunction or equitable relief against the Indemnified Party or any of its Affiliates.

(iv) If the Indemnifying Party will assume the control of the defense of any Third Party Claim in accordance with the provisions of this ‎Section 6(c), the Indemnifying Party will obtain the prior written consent of the Indemnified Party before entering into any settlement of such Third Party Claim.

(v) In circumstances where the Indemnifying Party is controlling the defense of a Third Party Claim in accordance with paragraphs (ii) and/or (iii) above, the Indemnified Party will be entitled to participate in the defense of any Third Party Claim and to employ separate counsel of its choice for such purpose, in which case the fees and expenses of such separate counsel will be borne by the Indemnified Party.

(vi) Each Party will cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and will furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. Each Indemnified Party will take commercially reasonable steps to mitigate any Damages upon becoming aware of any fact, matter, event or circumstance that could give rise to a Third Party Claim.

(d) IP Remedies. If Promethium reasonably believes the Software or Services could infringe any third-party Intellectual Property Rights, Promethium may, at its sole option and expense use commercially reasonable efforts to: (i) procure the right for Customer to continue using the Software or Services, as applicable (or any infringing component thereof) to make it non-infringing without materially reducing its functionality; or (ii) replace the Software or Services (or any infringing component thereof) with a non-infringing alternative that is functionally equivalent in all material respects. If the foregoing remedies are not available to Promethium on commercially reasonable terms, then Promethium may suspend or terminate Customer’s use of the Software or Services upon notice to Customer, and upon any such termination, Promethium will promptly refund to Customer the pro-rata portion of unused, prepaid fees for such Software or Services once the Software or Services are destroyed or returned, as applicable. The rights and remedies set forth in this Section 6 shall constitute the Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights by the Software or Services.

​7. LIMITATIONS OF LIABILITY.

(a) Exclusion of Damages. EXCEPT FOR A BREACH OF SECTION 4 (CONFIDENTIAL INFORMATION) OR EITHER PARTY’S OBLIGATIONS UNDER SECTION 6 (INDEMNIFICATION) (I) IN NO EVENT WILL PROMETHIUM BE LIABLE TO CUSTOMER, ITS AFFILIATES OR ITS USERS FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA, EVEN IF PROMETHIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) THE CUMULATIVE LIABILITY OF PROMETHIUM FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES THAT HAVE BEEN PAID TO PROMETHIUM BY CUSTOMER DURING THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

(b) Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 7 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN PROMETHIUM AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.

8. TERM AND TERMINATION.

(a) Term. The term of this Agreement begins on the Effective Date and will remain in force and effect until the later of: (i) its termination in accordance with this Agreement, or (ii) six (6) months after the last Order under this Agreement has been completed, expired or been terminated in accordance with its terms or this Agreement (the “Term”).

(b) Term of Individual Order. The term of each Order will commence on the date set forth therein and will continue for the period set forth therein; Customer’s and its Users’ licenses of the Service continue for the Subscription Term stated in the Order. If no term is stated in an Order, the term will continue until the Services contemplated by such SOW are complete, unless earlier terminated in accordance with this Agreement or the applicable Order. Termination or expiration of one Order will have no effect on any other Order.

(c) Termination for Convenience. If there is no active Order in effect under this Agreement, either Party may terminate this Agreement upon thirty (30) days’ prior written notice to the other Party.

(d) Termination for Cause. Without limiting any right or remedy available to either Party, either Party may terminate this Agreement effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice detailing the nature of such breach.

(e) Survival. Sections 2, 3, 4, 5(a), 6, 7, 8(e)-(f) and 10 survive any termination or expiration of this Agreement in accordance with their respective terms.

(f) Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights and licenses granted to Customer hereunder will terminate automatically except to the extent such rights are expressly stated to survive beyond the Term; (ii) Customer will return or destroy, at Promethium’s sole option, all Promethium Software and other Promethium Confidential Information in its possession or control, including permanent removal of such Promethium Software and Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Promethium’s request, Customer will certify in writing to Promethium its compliance with the provisions of this Section 8(f); and (iii) Customer will pay all previously accrued amounts due to Promethium hereunder in accordance with the Section 2. Promethium will return any Customer Confidential Information in its possession in accordance with Customer’s instructions.

9. TRADEMARKS.

Customer hereby grants Promethium a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”, which shall include trademarks of any Affiliate that uses the Service) during the Term with respect to (i) the provision of the Service; and (ii) Promethium’s marketing and promotional efforts for its products and services, including naming Customer as a customer of Promethium. All goodwill generated by any Promethium use of the Customer Marks inures to the exclusive benefit of Customer. Promethium will use the Customer Marks in the form stipulated by the Customer and will conform to and observe such standards as the Customer may prescribe from time to time.

​10. MISCELLANEOUS.

(a) Entire Agreement. This Agreement, together with any Orders and any other documents incorporated herein by reference and any attachments hereto, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.

​(b) Notices. Except as otherwise expressly permitted herein, all notices required or permitted to be given hereunder will be in writing and will be deemed effective when personally delivered, when received by electronic mail to the email address listed in the Order (with proof of transmission retained as available and no bounce-back message received, and with a subsequent notice delivered another of the listed options), when delivered by overnight courier or five (5) days after being deposited in the United States mail, with postage prepaid thereon, certified or registered mail, return receipt requested, to the notice address for each Party set forth in the Order, or such revised address submitted to the other Party in a notice that complies with this Section 10(b).

(c) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(d) Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties will negotiate in good faith to modify this Agreement to effect their original intent as closely as possible.

(e) Governing Law; Venue; Arbitration. This Agreement, and any arbitration pursuant to this Section, will be governed by and interpreted in accordance with the laws applicable in the State of California, without regard to its conflicts of law principles or to the United Nations Convention on the International Sale of Goods. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by final and binding arbitration administered by JAMS in San Francisco, California, USA before: (a) one arbitrator selected by JAMS if the amount of the claim(s) is less than One Million Dollars ($1,000,000); or (b) three (3) arbitrators if the amount of the claim is equal to or greater than One Million Dollars ($1,000,000) (with each party choosing one arbitrator and the two arbitrators selected choosing the third arbitrator). The arbitration shall be administered by JAMS pursuant to the following JAMS Rules: (i) if both Parties to the Agreement are based in the United States (even if one has a parent company located outside the United States): (A) if the amount of the claim(s) is less than $1,000,000, the JAMS Streamlined Arbitration Rules and Procedures, or (B) if the amount of the claim(s) is equal to or greater than $1,000,000, the JAMS Comprehensive Arbitration Rules and Procedures; and (ii) if one of the Parties to the Agreement is based outside the United States, the JAMS International Arbitration Rules. Judgment on the arbitral award may be entered in any court having jurisdiction thereof. This Section shall not preclude Parties from seeking provisional/equitable remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration panel shall, in the arbitral award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator(s) and reasonable attorneys’ fees (and accountant’s fees) of the prevailing Party, for payment by the non-prevailing Party, and shall determine the prevailing Party for this purpose.

(f) Assignment. Neither Party may assign or transfer this Agreement, in whole or in part, without the other Party’s express prior consent. Notwithstanding the foregoing, either Party may assign this Agreement without consent (i) to an Affiliate; (ii) to the surviving entity in case of merger or acquisition; (iii) to the purchasing entity in the event of sale of all or substantially all its shares or the assets to which this Agreement relates or (iv) to a successor entity pursuant to an internal reorganization or entity conversion; provided that any such assignee agrees in writing to be bound by all obligations of the assigning Party under this Agreement. Any attempt to assign or transfer this Agreement in contravention of the foregoing will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.

(g) Force Majeure. Neither Party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, communications failure or degradation, ordinary course mechanical or electrical degradation and/or failure, material changes in law, war, terrorism, riot, or acts of God.

(h) Subcontracting. Promethium may use subcontractors, vendors and other third-party providers for the performance of its obligations hereunder as it deems appropriate, provided that the Promethium remains responsible for the performance of each such subcontractor, vendor or third-party provider and its compliance with the terms of this Agreement.

(i) Export. Customer will ensure that its use of the Software and the Documentation complies in all respects with all applicable laws, statutes, regulations, ordinances and rules promulgated by governing authorities having jurisdiction over the Parties, the Software or Documentation including, without limitation, export control laws and compliance with sanctions regulations promulgated by the U.S. Bureau of Industry and Security, U.S. Office of Foreign Assets Control, or any other agency or department of the federal government of the United States. Customer will not export, reexport or otherwise transfer the Software or related technology except in compliance with such laws and any applicable laws where the Software is used by Customer and its Users.

(j) Customer’s Purchase Order. Any terms or conditions in Customer’s purchase order or any other related documentation submitted by or on behalf of Customer to Promethium shall not form part of this Agreement and are void, except to the extent that they do not conflict with or add anything to the Order, unless otherwise expressly agreed in writing and signed by the Parties.

(k) Arm’s-Length Transaction; Independent Contractors. The Parties hereby acknowledge and agree that (i) this Agreement and all of the services, obligations and activities set forth herein or contemplated hereby, is an arm’s-length commercial transaction; and (ii) the Parties are independent contractors, and no Party will by virtue of this Agreement be deemed to be the representative, employee, franchisee or agent of the other Party for any purpose whatsoever.

(l) No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person or entity other than the Parties and their respective successors and assigns.

(m) Interpretation and Precedence. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. In the event that any provision set forth in an Order conflicts with any provision of these Terms of Service, the following rules of precedence shall apply: (i) the Order shall take precedence over these Terms of Service, absent manifest error; and (ii) any legal provision in these Terms of Service will supersede and control any other documents to the extent of such conflict.

​SCHEDULE A
SUPPORT SERVICES: MAINTENANCE AND SUPPORT

This MAINTENANCE AND SUPPORT SCHEDULE is an addendum to the Terms of Services, and is hereby incorporated into Agreement between Promethium and Customer.

1. Customer Support.

​1.1 Definitions

1.1.1 “Business Day” means Monday through Friday in the United States, excluding U.S. federal holidays.

​1.1.2 “Error” means a failure of the Services to perform as substantially as described in the Documentation.

​1.1.3 “Issue” means an Error that is classified as “Priority 1”, “Priority 2”, “Priority 3”, or “Priority 4”.

​1.1.4 “Workaround” mean a solution or resolution that provides materially equivalent functionality while an Issue is being addressed. The workaround may involve a reasonable number of additional steps by the Authorized User to achieve the same result.

1.2 Support Access Methods

Support contacts may request Promethium support via electronic mail as indicated below To enable Promethium to meet its response time commitments to Customer, Customer must provide certain information in all communications regarding Issues.

For new Issues, Customer must provide the following information:

    1. Customer account name
    2. User name that the authorized User uses to access the Services.
    3. Results of any troubleshooting measures Customer may have already undertaken, and a list of steps that can be followed to reproduce the issue.
    4. As many other details about the issue as possible, including any co-existing issues and any recent updates or changes that may have been made to the network/system or infrastructure.

​For subsequent communications about existing Issues, Customer must provide the following information:

    1. Customer’s previously assigned case ID and priority level.
    2. Any additional details about the Issue since Customer was last in contact with the Promethium support resources.

​1.3 Response Times

If Customer encounters an Issue, Customer may contact Promethium’s Support Services personnel as set forth above. Promethium will respond to reported Issues as described in subsection (3.4), below, commencing when Promethium actually receives Customer’s notice of the Issue (i.e., leaving a message that Promethium does not receive does not mean that the response time calculation has commenced).

1.4 Priority Levels and Priority Response and Resolution Target Matrix

​During case creation, a Promethium technical support representative will assign a priority level, based on the standards described below.

Priority Levels

​​Priority 1: The case reveals a material defect that results in the termination of one or more major components of the Software or causes “system down” or material corruption of data. There is no acceptable alternative method/workaround to achieve the required results.

Priority 2: The case reveals a material defect that results in the degradation of one or more significant components of the Software or causes material degradation of the services or material corruption of data. There exists an acceptable alternative method/workaround to achieve the required results or the affected Software is in an production environment.

Priority 3: The case reveals a defect that causes the Software to produce incorrect, incomplete, or inconsistent results. The problem impairs some Software functions or causes the aforementioned results but the desired results can be obtained without difficulty by working around the defects.

Priority 4: The case involves an information request or description of a minor defect or enhancement that has a very minor negligible effect on the expected function of the Software.

Response Times per Priority Level

Matrix of Promethium priority SLA levels and initial response and follow-up times.

Following Issue notification from Customer, Promethium will use commercially best efforts to identify a temporary fix, work-around or patch to address P1 or P2 Issues until such Issues are addressed. Addressing an Issue means that the Issue is either fully resolved or the issue is fixed so that it can be de-escalated to a lower priority status (e.g. P2 to P4). Promethium may use any resolution method available (i.e. fixes, workarounds, etc.) to resolve an Issue. Each Customer support request is assigned a case number and the Issue is prioritized in Promethium’s reasonable discretion according to the above matrix.

A case will be closed when a Customer’s support request is resolved. Resolution typically entails one of the following: an answer to the question, a suggestion on how to perform a particular task or an acceptable workaround to a Software Issue. Customer will be notified of case closures, and this closure notification will always be done via email to the email address on record. A case can be reopened at any time by Customer request if further investigation is required. A new priority level will be assigned at such time.

1.5 What Is Not Included Within Support Services

1.5.1 Installation. Assistance with the installation and configuration of third-party hardware or software. Promethium does not provide these services.

1.5.2 Assistance to Customers not in good standing. Access to Promethium Support Services and resources and Promethium’s obligations under this Schedule are available only to customers whose accounts are in good standing with Promethium, which generally means they are not in arrears.