GENERAL TERMS AND CONDITIONS

These General Terms and Conditions are incorporated by reference into and made part of the Master Services Agreement (“Agreement”) by and between P2P Labs, LLC (“P2P”), and Client (“Client”) identified in the corresponding Sales Order (“Sales Order”). For purposes of clarification, Client shall include employees, contractors, agents, and anyone else to whom Client provides access to any Products (the “Products”) and Services (the “Services”) provided or performed by or on behalf of P2P as further described in the applicable Sales Order.

1. SERVICES

1.1 General. Subject to the terms and conditions of this Agreement, P2P agrees to provide the Products to Client via browser- based and/or downloadable software, or by such other commercially reasonable electronic method in P2P’s sole discretion, which includes any updates, modifications, changes, enhancements or new versions of the same (collectively, “Software”). Client acknowledges and agrees that during the term of the Agreement, P2P may make enhancements, modifications, or changes to the Products, including updates, replacements, changes or deletions of features, functions, integrations, or connectors when such features, functions, integrations or connectors, in P2P’s sole and absolute discretion, require an enhancement, modification, change or deletion and/or are no longer commercially viable or available. Also, P2P will use commercially reasonable efforts to provide Client with access to Standard Technical Support and maintenance services, including: phone contacts, voicemail, email, FAQs/Knowledge Base, and 24/7 access to the trouble ticketing system (collectively, the “Client Support Systems”), provided that Client’s account is in good standing and Client is not otherwise in breach of any provision of this Agreement. This is separate and apart from the customer support systems provided to Client’s customers, which shall be provided solely by Client. The Client Support Systems will be responded to in accordance with P2P’s standard practice for Standard Technical Support and maintenance to allow Client’s continued use of the Services during the Term of this Agreement.

1.2. License Grant. Subject to the terms and conditions of this Agreement, P2P grants to Client a limited, non-exclusive, non- transferable, non-sublicensable, royalty-free right and license to use the Software solely during the Term (as defined in Section 2.1 herein), in object code format only, and solely within the scope of the license and the terms and conditions of this Agreement. For the avoidance of doubt, the license grant provided herein authorizes Client to operate the Software for the benefit and use of the Client and Client’s customers. To the extent permitted under applicable law, and solely for the purpose of preventing counterfeiting, piracy, tampering and unlicensed use of the Software and Products, P2P may install on the Software and Products technology, including, but not limited to embedded licensing with entitlement and usage management, such as license expiration requiring renewal and remote access, for preventing the operation, use or unauthorized distribution of the Software and Products if any amounts due and owing to P2P have not been received from Client per Section 3 below, or any violation of the Acceptable Use Policy or as per the terms of this Agreement, and P2P may use this technology to confirm that Client has a licensed copy of the Software and Products. The update of these technological measures may occur through the installation of the software release updates at P2P’s sole discretion.

1.3 Access to P2P Software and Services. Client shall designate an in-house administrator (“Client Administrator”) as point of contact of its business account who will grant and manage access to individual employees or end users, and where applicable, P2P (or its agent) may act as Client Administrator of Client’s business account if authorized by Client (applicable fees may apply). The Client Administrator will have access to the settings for its end users’ accounts and will have the option to select the features, functions, integrations, and connectors for its end users. Upon account creation by the Client Administrator, end users will be able to use the Services and may change certain account settings or profile information by logging in to their accounts.

1.4 Technical Support Services. Client and Client Administrator will respond to questions and complaints from end users or third parties relating to Client’s or end users’ use of the Products and Services (typically referred to as Tier 1 and Tier 2 in the communications industry). Client will use commercially reasonable efforts to resolve Tier 1 and Tier 2 support issues and if Client is unable to resolve the support issue, then Client may escalate such issue to P2P’s Tier 3 and Tier 4 (DevOps) Technical Support Department at (support@engagehelios.ai or URL https://www.engagehelios.ai/contact-support). Standard Technical Support and maintenance will be predicated on industry standard normal working practices and conditions and are subject to adjustments by P2P at any time, including in the event of any cause or causes beyond reasonable control of P2P. P2P will provide Standard Technical Support during the Term of this Agreement, including access to its trouble ticketing system, telephone, voicemail and e-mail correspondence and access to P2P’s Technical Support team during P2P’s Standard Support Hours of 8:00 A.M. – 5:00 P.M. Central Time, Monday through Friday, except for all standard U.S. business holidays where U.S. trading banks are closed for business (“Standard Support Hours”). The trouble ticketing system, e-mail and voicemail are accessible during all other hours and will be responded to in accordance with the terms of Standard Support Hours. Standard Technical Support is available off-hours only as specifically indicated in this Agreement. Client is responsible for providing at least one (1) person for remote web-based onboard training at a mutually agreed upon date and time, and agrees to participate without unreasonable interruption. Additional training information and training classes are available in accordance with P2Ps published rate schedule, which is available by contacting P2P at support@engagehelios.ai.

1.5 Emergency and Off-Hours Support. P2P will provide Client with 24/7/365 access to the Helios administrative portal. P2P will respond to Client’s request for Standard Technical Support outside of Standard Support Hours in the event of a Priority 1 outage as described below. If P2P is contacted by Client outside of Standard Support Hours regarding an event that Client reasonably believes is a Priority 1 P2P Product or Software issue, such event will be reviewed by P2P and Client to determine: (1) whether such event is a Priority 1 event or outage; (2) the cause of such outage; and (3) the technical support required of P2P and Client to correct. P2P will determine if the event is a Priority 1 outage, and the cause of such event will determine the technical support, response times and fees (if any) owed by Client to P2P. If P2P reasonably determines that it is not the actual and proximate cause of the Priority 1 event or outage, P2P may charge Client for time spent evaluating and/or working on the event at the current after-hours non-planned emergency support rate schedule as listed on P2P’s website at URL https://www.engagehelios.ai/support-rates (which rate schedule is hereby incorporated into this Agreement by reference). Other requests for off-hour Standard Technical Support will be evaluated on a case-by-case basis and may be subject to the after-hours non-planned emergency support rate schedule as referenced above.

Priority 1: This priority is reserved for system-wide outages that severely affect all (or materially all) accounts. Examples include all channel comms processing down or web interface down across all accounts.

Priority 2: This priority is reserved for severe problems such as partial service outage on multiple accounts. Examples include one or several (but not all) channels degraded or down or web interface up but not functioning properly.

Priority 3: This priority is the default priority for day-to-day account centric problems, such as access to an end-user account, password retrieval/renewal, or other problems that do not significantly impair the functioning of the software application.

Priority 4: This priority is to address questions or requested advice on basic configurations, usability questions, or other non-service impacting related questions.

1.6 Customer Data and Security. Client is responsible and liable for maintaining the security of Client credentials and Client’s end-user customer credentials as applicable (including but not limited to administrative and end user passwords) and files, and for all uses of Client’s account including Client’s end-user customer accounts with or without Client’s knowledge or consent through usage of Client credentials due to any security breaches of Client’s or Client’s customer end-user systems, except to the extent any such breach was the direct result of P2P’s intentional misconduct. Client shall be solely responsible for collecting, entering, and updating the Customer Data. P2P will take commercially reasonable precautions, including, without limitation, technical (e.g., firewalls and data encryption), administrative and physical measures, to help safeguard Customer Data. “Customer Data” as used herein shall mean data and/or information regarding Client and its affiliates and Client’s end-user customers (“Authorized Users”) provided to P2P hereunder, or to which P2P has access, or which P2P has accessed or controls, in connection with the provision of the Products and Services contemplated in this Agreement, including all personally identifiable and other information. As such, Client is solely responsible and liable for any and all access to and use of the Products and Services by any person logging in under a user ID registered under Client’s account or providing and/or receiving personally identifiable data or other information through the Products and Services. Client acknowledges and agrees that “access information”, including user IDs and passwords, will be Client’s “key” to the Products and Services and, accordingly, Client will be responsible for maintaining the confidentiality and security of such access information (including each user ID and password). Client will: (i) notify P2P immediately of any unauthorized use of any access information, password or account or any other known or suspected breach of security and/or confidentiality; (ii) immediately terminate access to the Products and Services for any unauthorized person or entity who Client suspects or knows has committed a breach of security and/or confidentiality; (iii) immediately report to P2P any copying or distribution of the Products and/or Services that is known or suspected by Client, and use industry best practices to immediately stop any such copying or distribution; and (iv) not impersonate another P2P authorized user or provide false identity information to gain access to or use the Products and Services. P2P will notify Client immediately of any known breach of its system or software, regardless of origin or cause of such breach, and take steps necessary to mitigate the impact of such breach and to prevent its occurrence in the future   

1.7 Third-Party Connectors. P2P Labs is a communications software solutions provider and as such may integrate third-party products and services with the Products and Services on behalf of Client. The Software offers operability in conjunction with certain third-party software, tools, formats, or products for performing input/output processes (“Third-Party Connectors”), and P2P expressly disclaims any liability relating to such third-party functionality or compatibility. Client acknowledges and agrees to the foregoing and agrees to obtain, at its sole expense, all necessary licenses and/or consents for use and operation of such third-party software, tools, formats or products from their respective owners and/or license holders. Client further acknowledges and agrees that the terms, licenses and restrictions set forth herein may not apply to the third-party software, tools, formats or products provided along with the P2P Products. Client understands and agrees that: (a) each module or file of third-party software is licensed by and subject to the terms of use accompanying each module or file thereof; and (b) Client agrees to be bound by the terms of such third-party licenses, some of which may entitle Client to greater or lesser rights with respect to such modules or files than those set forth herein with respect to the P2P Products and Software. Client shall be solely responsible for complying with all applicable agreements with Third-Party Connectors and obtaining the necessary functionality from such Third-Party Connectors to enable P2P to provide its Products as contemplated hereby. The information and references relating to the operation of third-party software and the list of authorized and integrated third-party software partners is set forth on the P2P website URL https://www.engagehelios.ai/connectors as posted by P2P from time to time (which Third-Party Connectors is hereby incorporated into this Agreement by reference). Client acknowledges that P2P does not guarantee the availability, compatibility, operability, functionality, or pricing with respect to any third-party products and services, whether invoiced by P2P or not. P2P may, in its sole and absolute discretion, replace or delete (without a replacement) any third-party offerings. P2P is not responsible for any damages that are a result of issues that arise due to third-party products and services, including but not limited to, those issues that create service-affecting or business-comprising circumstances of any kind, and P2P expressly disclaims any liability whatsoever relating to such third-party products and services.    

1.8 P2P Compliance. P2P will, at its own expense: (a) obtain and maintain any approvals, licenses, filings or registrations necessary to perform its obligations pursuant to this Agreement; and (b) comply with all applicable local, state, federal and foreign laws.

1.9 911/E911 and Emergency Number Compliance. Client acknowledges and agrees that it is Client’s sole responsibility to configure and maintain their communications platform system integrity and functionality to allow emergency number call completion, and to remain in full compliance with a 911/E911 or emergency number provider. Further, Client acknowledges, understands and agrees that neither P2P, nor any of its Affiliates and/or subsidiaries, as well as their respective officers, directors, managers, employees and/or agents, may be held liable for any claim, damage, liability, loss, fine, penalty or cost (including without limitation, attorney’s fees), and Client hereby waives any and all such claims or causes of action arising from or relating to the provision of any and all types of emergency services by Client. Client further acknowledges and agrees that it shall release, indemnify, defend and hold P2P and its Affiliates and subsidiaries, as well as their respective officers, directors, managers, employees and agents, harmless from and against any and all claims, causes of action, damages, liabilities, losses, fines, penalties or costs (including without limitation, attorney’s fees) arising out of or relating to the provision of any and all types of emergency services by Client without regard to whether the caller is an employee or customer. Client acknowledges and agrees that any injury or death arising out of a lack of or misrouting of 911 or other emergency number calls, regardless of whether the call failed or was routed by a public safety answering point (“PSAP”) system or an official emergency services operator, is neither the fault nor liability of P2P, and Client holds P2P and its Affiliates and subsidiaries, as well as their respective officers, directors, managers, employees and agents, harmless from any and all claims, causes of action, damages, liabilities, losses, fines, penalties or costs (including, without limitation, attorney’s fees) with respect thereto. The foregoing limitations apply to all claims regardless of whether they are based on breach of contract, product liability, contract liability, strict liability, tort and any other theories of liability.

1.10 Professional Services.  Professional Services fees (if any) will be charged to Client at the then-prevailing rates, as published on the P2P website URL https://www.engagehelios.ai/proserv-rates, as of the date P2P approves, in its sole discretion, the Client’s request for services that are outside of Standard Technical Support, such as, specific services for: consultation, design, installation, hardware, or other services not included in Standard Technical Support (collectively, “Professional Services”).  Any such approval shall be effective only if set forth pursuant to a mutually executed Statement of Work (“SoW”) to be attached to this Agreement together with a new Sales Order to be executed and delivered by Client with respect to such additional services corresponding thereto. For example, assistance requested by Client in designing and implementing additional communications channels or specialized integrations to support additional services are considered outside of Standard Technical Support. Professional Services fees may apply to, but are not limited to, the following examples: third-party integrations, custom deployment and infrastructure engineering, client-specific custom product features and maintenance, and any out-of-contract maintenance as determined by P2P. Client is responsible for providing a functional specification (or hiring P2P to generate this specification for a fee), including, but not limited to, a statement and/or scope of work document for any custom work it requests pursuant to this Section 1.10.

1.11 Backup of Systems. Client is solely responsible for backing up all Client system(s) and the corresponding data and information, at Client’s sole expense, including but not limited to data stores, servers and other Client-supplied systems used in connection with the Products, regardless of the deployment model selected. Without limiting the generality of the foregoing, Client acknowledges and agrees that, notwithstanding any term or provision of this Agreement to the contrary, P2P SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGES TO OR LOSS OR DESTRUCTION OR ALTERATION OF THE CLIENT’S SERVERS (WHETHER PRIVATE OR PUBLIC CLOUD), NETWORK EQUIPMENT, DATA, SOFTWARE OR PERIPHERALS.

1.12 Compliance with All Applicable Laws and Third-Party Rights. Client shall be solely responsible, at its sole expense, for complying with all applicable local, state, national, foreign and international laws, rules or regulations (including without limitation, any environmental, export and import laws and/or regulations), all judgments, decrees, orders, governmental permits, licenses, certificates, orders or governmental approvals applicable to it or the transactions contemplated hereunder, and any licenses or rights of third-party non-governmental entities (collectively, “Applicable Laws and Third-Party Rights”), when providing, accessing and/or using the Products and Services (as applicable) and any work product or content of the Products and Services and/or as required by Client to offer services to its customers. Client is responsible for complying with all Applicable Laws and Third-Party Rights related to its use of the Products and offering of services to its customers.

1.13 Feature Requests. Client may submit requests for new features to P2P. If a feature requested by Client is considered a standard product improvement by P2P, such feature may be added to the P2P feature road map and scheduled for delivery. If a requested feature is not deemed a standard product improvement by P2P, P2P will review and address such request on a case-by-case basis, in P2P’s sole and absolute discretion. Expedited development of product improvements to meet Client’s desired schedule may be available for a fee and on a case-by-case basis, based on the availability of P2P’s resources.

2. TERM AND TERMINATION

2.1 Term. This Agreement commences on the Effective Date and, unless earlier terminated pursuant to the terms of this Agreement, will continue for so long as there is a Sales Order or Statement of Work in effect between the parties (the “Term”).

2.2 Termination.

(a) For Cause (i) In the event of a material breach of this Agreement, which is not cured within thirty (30) days of written notice thereof (or ten (10) days in the case of nonpayment), the non-breaching party may terminate this Agreement at the end of the cure period.
(ii) Either party may terminate this Agreement immediately by written notice if the other party: (A) becomes insolvent; (B) makes an assignment for the benefit of creditors; (C) files or has filed against it a petition in bankruptcy or seeking reorganization; (D) has a receiver appointed; (E) institutes a proceeding for liquidation or winding up; or (F) breaches its confidentiality obligations herein.
(b) Effect of Termination. In the event of a material breach of this Agreement by P2P, Client shall be entitled to a refund for amounts prepaid for Services not rendered prior to termination. In the event of a material breach of this Agreement by Client, including but not limited to non-payment of Service Fees, Client agrees to pay P2P all Service Fees for the Services for the Service Term, including all taxes, surcharges, fees and other charges, which amount shall be due and payable in full immediately upon written demand by P2P.

2.3 Regulatory Event and Requirements. Either Party may terminate this Agreement upon notice to the other Party if the passage or adoption of any law, rule or regulation (which shall be cited in such termination notice) would make it unlawful to perform its obligations under this Agreement, with the effective date of such termination being no earlier than the date on which any such law, rule or regulation results in such unlawful performance; providing, however, that neither Party will be permitted to terminate this Agreement pursuant to this Section 2.3 unless and until the Parties have made a good faith effort to modify this Agreement in a commercially reasonable manner so that it is no longer unlawful for the terminating Party to perform its obligations hereunder. P2P is not a provider of services regulated by the Federal Communications Commission (“FCC”) or state regulatory authorities (“State Regulators”) and does not provide or intend to provide any products or services that are regulated by the FCC or State Regulators. If the FCC, any State Regulator or other governmental agency in the territory imposes regulatory requirements or obligations on any products or services, including the Software, Products and Services provided by P2P hereunder, P2P may change the way in which such products are provided to Client to avoid the application of such requirements or obligations to P2P or terminate this Agreement without liability to Client (Client shall be entitled to a refund for amounts prepaid for Products and Services not rendered prior to termination).

3. FEES

3.1 Fees. In consideration for the Products and Services provided by P2P, Client will pay P2P the fees in accordance with the terms set forth in the applicable Sales Order, or the Products and Services may be suspended or terminated. All payments for Products and Services under this Agreement shall be made free and clear and without deduction for any and all present and future Taxes. “Taxes” means all income withholding taxes, levies, imposts, duties, fines or other charges of whatsoever nature however imposed by any country or any subdivision or authority thereof in any way connected with this Agreement or any instrument or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes as are imposed on or measured by a party’s net income or property. Payments due to P2P under this Agreement shall be increased so that amounts received by P2P, after provisions for Taxes and all Taxes on such increase, will be equal to the amounts required under this Agreement if no Taxes were due on such payments. Taxes will be stated separately on the invoice. Client shall indemnify P2P for the full amount of Taxes attributable to the provision of Products and Services under this Agreement, and any liabilities (including penalties, interest, and expenses) arising from such Taxes, within 30 days from any written demand by P2P. Client shall provide evidence that all applicable Taxes have been paid to the appropriate taxing authority by delivering to P2P receipts or notarized copies thereof within 30 days after the due date for such tax payments. Without prejudice to the survival of any other obligation of Client hereunder, the obligations of Client contained in this section shall survive the payment in full of all payments hereunder.

3.2 Payment Terms. The applicable Sales Order specifies when payment shall be due and the method of payment. For Clients who pay based on an invoice, Client agrees to pay all invoices within the timeframe specified in the “Payment Terms” provision of the applicable Sales Order and will pay by ACH (or make payment via other commercially reasonable methods, such as EFT or wire, in P2P’s sole discretion). Any charges for bank wire transfer are to be borne by Client. Payment is deemed to be made on the date payment is received. In the event of late payment, access to the Products and Services may be suspended or terminated following notice of failure to pay. Further, unpaid fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. In the event P2P, at its sole discretion, elects to use the services of a third-party collection agency, the costs of such third-party collection agency (and reasonable attorneys’ fees and costs associated with collection) shall be fully and solely paid by the Client.

3.3 Billing Disputes. Disputes for any charges for the Products and Services must be made in writing to P2P within sixty (60) days of the date of the invoice by P2P. Failure to provide a written statement explaining in reasonable detail the reasons for disputing the charge(s) within such time period, irrevocably waives any objection and further recourse with regard to such charges. Written statements disputing charges must be directed to P2P’s Accounting Department and sent to AR@engagehelios.ai.

3.4 Acceleration of Payments. In the event Client fails to remit payment for Service Fees for the Products and Services in accordance with the payment terms set forth in the Sales Order(s) and fails to cure such breach within 10 days after notice of breach, Client shall promptly pay P2P all Service Fees for the Products and Services for the Service Term, including all taxes, surcharges, fees and other charges within thirty (30) days of receipt of invoice for such amounts from P2P. Further, in the event of any action by P2P to collect any amount not paid when due, Client will pay or reimburse P2P’s costs of collection (including, but not limited to, any reasonable attorneys’ fees and court costs).

4. CONFIDENTIALITY

4.1 Confidential Information. Neither party will use or disclose to third parties the other’s Confidential Information (as defined below) unless permitted by this section. The party disclosing Confidential Information is the “discloser” and the party receiving confidential information is the “recipient.” “Advisors” (or “advisors”) means either party’s attorneys and accountants, and any other subcontractor or advisor subject to such party’s non-disclosure agreement containing terms substantially similar to this Agreement. “Affiliates” (or “affiliates”) means any company, existing now or in the future, owning at least fifty percent (50%) or majority owned by, either directly or indirectly, or controlling, controlled by or under common control with either party, as long as such ownership or control exists, and their directors, officers and employees. “Confidential Information” is nonpublic information, know-how and trade secrets in any form that are designated as “confidential,” or a reasonable person knows or reasonably should understand to be confidential. Confidential Information is provided to the recipient “as is” without any warranties of any kind. For the avoidance of doubt, the Software shall be deemed P2P’s Confidential Information subject to the obligations in this Section 4.

4.2 Not Confidential Information. The following types of information, however marked, are not Confidential Information:

(a) Information that is, or becomes, publicly available without a breach of this Agreement;
(b) Information that was lawfully known to the recipient, its advisors or any of affiliates of the information without an obligation to keep it confidential;
(c) Information that is received by recipient, its advisors or any of its affiliates from another source who can disclose it lawfully and without an obligation to keep it confidential;
(d) Information that is independently developed by recipient, advisors or any of its affiliates; or
(e) Information that must be disclosed pursuant to applicable federal, state or local law, regulation, court order or other legal process.

4.3 Limits on Use of Confidential Information. The recipient agrees it will:

(a) Not disclose the discloser’s Confidential Information to third-parties;
(b) Use and disclose the discloser’s Confidential Information to individuals as set forth herein solely for the purpose of the business relationship between the parties; and
(c) Not reverse engineer, decompile or disassemble the discloser’s Confidential Information, except and only to the extent that applicable law expressly permits, despite this limitation.

4.4 Standard of Care. The recipient agrees:

(a) To take reasonable steps to protect the discloser’s Confidential Information, and these steps must be at least as protective as those the recipient takes to protect its own Confidential Information, and no less than a reasonable standard of care;
(b) To notify the discloser promptly upon discovery of any unauthorized use or disclosure of discloser’s Confidential Information; and
(c) To cooperate fully with the discloser to help regain control of the Confidential Information, including any legal actions taken, to prevent further unauthorized use or disclosure of it.

4.5 Other Permitted Disclosures and Requirements

(a) The recipient may disclose the discloser’s Confidential Information to representatives and affiliates only if they have a need to know about it for the purpose of the business relationship between the parties. Before doing so, the recipient must ensure that the affiliates and representatives are required to protect the discloser’s Confidential Information on terms consistent with this Agreement, and recipient shall take all responsibility for each representative’s use of Confidential Information.
(b) The recipient may disclose the discloser’s Confidential Information if required to comply with a court order or other government demand that has the force of law.
(c) Each party acknowledges that money damages may not be sufficient compensation for a breach of this section. Each party agrees that the other may seek court orders to prevent Confidential Information from becoming public in breach of this section. Each Party agrees that it will promptly confirm compliance with the obligations of this Section 4 if requested by the other party in writing.

5. PROPRIETARY INFORMATION.

5.1 Feedback. P2P’s proprietary information shall remain the sole and exclusive property of P2P. Client’s proprietary information shall remain the sole and exclusive property of Client. In the event that Client provides any feedback, ideas, or suggestions to P2P regarding the Services (collectively, “Feedback”), Client acknowledges and agrees that P2P shall have the unrestricted right to use such Feedback in P2P’s sole and absolute discretion and that any patent, trademark, intellectual property, or other ownership rights in any improvements or modifications to the Software, Products and/or Services, whether or not resulting from or incorporating any such Feedback, shall belong to and be retained solely by P2P, and Client hereby assigns to P2P any and all right, title and interest therein.

5.2 Trademarks. Client shall receive the Products Client has purchased or subscribed to as set forth on the applicable Sales Order for the delivery of the Product(s) and Service(s) branded solely as Helios and/or P2P Labs (collectively, the “P2P Marks”), as the case may be, including, but not limited to, P2P’s Marks and proprietary notices as set forth therein. P2P, in its sole and absolute discretion, authorizes Client to privately brand certain fields, labels, and style sheets and other properties of the Products and Software so as to enable and allow Client to exhibit its own brand, logos or marks (the “Client Marks”), or white label the Products so as to enable the Client’s Authorized User(s) to exhibit their own brand, logos and marks (the “Authorized Users Marks”), and thus “hiding” the human eye-readable P2P Marks. P2P, however, does not permit changes to any embedded P2P-specific Product or Software version or code references in Helios or any P2P applications. Additionally, under no circumstance shall Client be permitted to remove or modify any copyright or other proprietary notices embedded in the Products, Software or any third-party products from whom P2P has acquired the rights to use licensed material as part of or in conjunction with any Product or Software. P2P Labs is and will at all times be and remain the sole owner of all intellectual property rights (right, title and interest) in and to the Helios OmniCX application, Products, Software, Services, Trademarks, and all related software applications of P2P Labs. Client will acquire no ownership interest in the Helios OmniCX application, Products, Software, Services or any related software applications of P2P Labs, and Client shall take no action which may adversely affect or impair P2P’s ownership of such materials and rights.   

6. REPRESENTATIONS, WARRANTIES AND DISCLAIMER

6.1 Mutual. Each party represents and warrants to the other party that: (a) it has the power, authority and legal right to make, deliver and perform the obligations set forth herein and to its knowledge, no other agreement conflicts with the terms set forth herein; (b) the execution of this Agreement has been duly authorized and executed and is, or upon delivery will be a legal, valid and binding obligation enforceable in accordance with its terms, and (c) its respective provision and use of the Software is in compliance with applicable law and regulations, including but not limited to federal, state, and local statutes, ordinances, and regulations, including tax and license fees of federal, state and local governmental agencies or bodies. The parties represent and warrant that its agents, employees, representatives, consultants or subcontractors are not persons or entities appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring ownership or control of items under this Agreement, or with which the other Party is prohibited from doing business. Both parties covenant and agree that the Products shall not be used for or in connection with nuclear activities, the development of biological or chemical weapons, missiles, unmanned aerial vehicles, to support terrorist activities, organized crime or in any other way that would violate U.S. export controls or economic sanctions laws, and the parties agree to promptly notify the other party and cease offering the Products to applicable Clients and/or end-user customers if a party discovers that any of the foregoing situations arise or are anticipated to arise.

6.2 P2P. P2P shall use commercially reasonable efforts to maintain the Software in a manner which minimizes errors and interruptions in the Products and Services. Customer acknowledges and agrees that the Products and Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by P2P or by third-party providers, or because of other causes beyond P2P’s reasonable control, and the inability to use the Products and Services shall not be deemed a breach of the Agreement by P2P. HOWEVER, P2P DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS AND SERVICES. THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND P2P DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

6.3 Client. Client shall maintain sufficient infrastructure including but not limited to Internet access, networks, and power to enable use of the Products and Services. Client represents and warrants to P2P that it owns or has the right to use the trademarks and Customer Data as contemplated herein, and will use the Products and Services only in compliance with applicable law, P2P’s Acceptable Use Policy available at URL https://www.engagehelios.ai/aup, and P2P’s Privacy Policy available at URL https://www.engagehelios.ai/privacy-policy.

7. INDEMNIFICATION

7.1 P2P agrees to indemnify, defend and hold harmless Client from and against all claims, liabilities, damages (actual and consequential), losses and expenses (including reasonable attorneys’ fees) arising from or in any way related to any unaffiliated third-party claims (“Claims”) relating to actual infringements or misappropriation of any third-party intellectual property or other proprietary rights in the use of the Software or Services provided to Client under this Agreement. The foregoing is P2P’s exclusive obligation for infringement claims. If P2P becomes aware of a Claim alleging infringement of misappropriation, or P2P reasonably believes such a Claim will occur, P2P may, at its sole option: (a) obtain for Client the right to continue use of the Software or Service(s); (b) replace or modify the Software or Service(s) so that it is no longer infringing; or, (c) if neither of the foregoing options is reasonably available, terminate the Software or Service(s), in which P2P’s sole liability, in addition to the indemnification obligations outlined above, shall be to refund to Client a prorated amount of prepaid fees for the Software or Service(s) as applicable to the remaining period in the then-current Service Term. P2P’s indemnification obligations under this Section 7.1 are expressly conditioned on Client providing: (d) prompt notice to P2P of any applicable claim; (e) P2P retains the unconditional option to control the defense and settlement of any such claim; and (f) reasonable assistance (at P2P’s expense) in the defense and settlement of such claim. P2P will have no indemnification obligation for Claims arising from: (g) Client’s or any Authorized User’s use of the Software or Services other than as permitted under this Agreement; (h) the combination of the Software or Services with any products, services, hardware, data, or business process not provided by P2P; or (i) the modification of the Software or Services by any party other than P2P or P2P’s agents, or modification by P2P or P2P’s agents in accordance with Client’s instructions.

7.2 Client agrees to indemnify, defend and hold harmless P2P, its affiliates, officers, agents, employees, and partners from and against all claims, liabilities, damages (actual and consequential), losses and expenses (including reasonable attorneys’ fees) arising from or in any way related to any third party claims relating to: (a) Client’s use of the Software or Services (including any actions taken by a third party using Client’s account); and (b) Client’s violation of applicable law and regulations. Client’s indemnification obligations under this Section 7.2 are expressly conditioned on P2P providing: (c) prompt notice to Client of any applicable claim; (d) Client retains the unconditional option to control the defense and settlement of any such claim; and (e) reasonable assistance (at Client’s expense) in the defense and settlement of such claim.

8. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION HEREOF, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER ANY FORM OR THEORY OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, DATA LOSS, BUSINESS INTERRUPTION LOSSES, LOSS OF REPUTATION, OR LOSS OF ANTICIPATED SALES OR SAVINGS, OR COST OF COVER, SUBSTITUTE GOODS, RESULTING FROM, ARISING OUT OF OR RELATING TO A PARTY’S PERFORMANCE OR FAILURE TO PERFORM ANY OF ITS OBLIGATIONS UNDER, OR BREACH OF, THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF, KNEW OF, OR SHOULD HAVE KNOWN OF, THE POSSIBILITY OF SUCH DAMAGES. IN THOSE STATES AND JURISDICTIONS THAT DO NOT ALLOW OR ENFORCE CERTAIN LIMITATIONS OF LIABILITY, EACH PARTY’S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW.

9. FORCE MAJEURE. Except for the obligation to make payments for amounts due, neither party shall be liable to the other nor deemed in default under this Agreement if and to the extent that such party’s performance of this Agreement is delayed or prevented due to a Force Majeure event. The term “Force Majeure” means an occurrence that is beyond the reasonable control of the party affected and occurs without its fault or negligence, including but not limited to acts of God, pandemic, fire, explosion, vandalism, flood, storm, earthquake, or other similar catastrophe; any law, order, regulation, direction, action or request of any governmental entity or court or civil or military authority having jurisdiction over either of the parties, national emergencies, insurrections, riots, wars, strikes, lock outs, or work stoppages; Internet brownout, Internet virus attack, third-party telecommunications networks, sub-processor failure, shortages of equipment or supplies, unavailability of transportation, or acts or omissions of third-parties, or any other cause beyond the party’s reasonable control. The affected party will provide prompt notice of such event to the other party and will exercise in good faith commercially reasonable efforts to remedy any such cause of delay or cause preventing performance.

10. MODIFICATIONS. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.

11. INDEPENDENT CONTRACTOR. The relationship of Client and P2P established by this Agreement is solely that of independent contracting parties and nothing contained in this Agreement shall be construed to (a) give either party the power to direct and control the day-to-day activities of the other, (b) constitute the parties as partners, parties to a joint venture, franchisor-franchisee, co-owners or otherwise as participants in a joint or common undertaking, or (c) allow either party to create or assume any obligation (including but not limited to either party’s employee rights or benefits) on behalf of the other party for any purpose whatsoever. In fulfilling its obligations pursuant to this Agreement each party shall be acting as an independent contractor.

    12. NON-SOLICITATION. Each party agrees that during the term of this Agreement and for a period of one (1) year thereafter, such party will not, without the prior written consent and approval of the other party, hire or enter into a contract with any employee, agent, consultant or independent contractor of the other party to provide services, directly or indirectly, induce or attempt to induce or otherwise discuss, counsel, advise or encourage any employee, agent, representative or consultant of such other party to leave, or otherwise terminate, such person’s relationship with the other party. Each party further recognizes and agrees that the affected party does not have a remedy at law adequate to protect its rights hereunder, and therefore, agrees that the affected party may seek a preliminary injunction or other equitable relief against a party for a breach or attempted breach hereof, such additional remedy being considered cumulative and in no way limiting the affected party’s other remedies hereunder or at law. Notwithstanding the foregoing to the contrary, in no event shall a party be restricted from placing general advertisements for positions with such party in newspapers or periodicals or similar media (including digital media) generally accessible by the public which are not specifically targeted to solicit the other party’s personnel, agents, contractors or representatives.

    13. CHOICE OF LANGUAGE. This Agreement, as well as all other documents relating hereto, including all notices, have been and shall be in English only. Les parties aux présentes confirment leur volonté que cette convention, de même que tous les documents, y compris tout avis, qui s’y rattachent, soient rédigés en langue anglaise. To the extent that the Civil code of Québec is found to govern any part of this Agreement, the Client hereby waives its rights pursuant to articles 2125, 2126 and 2129 of the Civil code of Québec or otherwise, and acknowledges and agrees that its sole rights and recourses with respect to termination of this Agreement are those set forth in this Agreement.

    14. PUBLICITY RIGHTS. Client agrees, that upon request and with prior written approval given by Client, that P2P may identify Client as a user of the Services on P2P’s website or other third-party website where P2P or its designated agents may promote the Services in its business deals, press releases, marketing materials, advertising, newsletters, mailings, tradeshows, or other promotional materials. Upon such approval, Client hereby grants P2P and its agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display Client’s name, trademarks, service marks, designs, logos, and symbols in connection with such purpose. Upon successful implementation of the Services by Client: (a) P2P may issue a press release regarding Client’s use of P2P’s Services after 30 days of successful implementation; and (b) Client agrees to participate in a P2P customer case study and reasonably help with customer references and provide quotes for marketing purposes. All content will be pre-approved by Client, which consent shall not be unreasonably withheld, conditioned, or delayed.

    15. OTHER PROVISIONS

    15.1 Governing Law & Venue. This Agreement shall be governed, construed, interpreted by, and enforced in accordance with the internal laws of the state of Delaware (without regard to principles of conflicts of law that would require the application of any other law). Any disputes that may arise under this Agreement must be resolved exclusively in accordance with such laws of the state of Delaware. Both parties irrevocably agree that any claims or disputes shall first be the subject of good faith negotiations among the parties. If that process does not resolve the dispute within thirty (30) days, at the request of either party, the dispute shall be submitted to binding arbitration in the state of Delaware. The arbitration shall be conducted in accordance with the American Arbitration Associations Rules for Commercial Arbitration, except as modified below.  The arbitration shall take place before a single arbitrator selected by mutual agreement of the Parties (or selected by two arbitrators, one selected by each Party if mutual agreement cannot be reached). Each party to the dispute shall bear its own expenses arising out of the arbitration, except that the expenses of the facilities to conduct the arbitration and the fees of the arbitrator shall be shared equally by the parties unless the arbitral award specifically provides that all such arbitration costs be paid by the non-prevailing party. The arbitrator’s decision and award shall be final and binding on both parties, and enforceable in any state or federal court of competent jurisdiction. Notwithstanding the foregoing, P2P shall be entitled to seek and obtain injunctive or other equitable relief or remedies in any court of competent jurisdiction to enforce the provisions of this Agreement concerning or relating to confidentiality and/or intellectual property rights or to enforce the foregoing arbitration provision. Each party hereby submits to the personal jurisdiction of such court with respect to any such action or proceeding and hereby irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the venue or the convenience of the forum with respect to any such action or proceeding. Waiver of Jury Trial. Each party irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal action, proceeding, cause of action, or counterclaim arising out of or relating to this Agreement, including any exhibits, schedules, and appendices attached to this Agreement, or the transactions contemplated hereby. Each party certifies and acknowledges that (a) no representative of the other party has represented, expressly or otherwise, that the other party would not seek to enforce the foregoing waiver in the event of a legal action, (b) it has considered the implications of this waiver, (c) it makes this waiver knowingly and voluntarily, and (d) it has decided to enter into this Agreement in consideration of, among other things, the mutual waivers and certifications in this section.

    15.2 Waiver and Severability. Any delay or failure by either party to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy. If any provision of this Agreement is unenforceable, the parties (or, if they cannot agree, a court) will revise that provision so that it can be enforced to the maximum extent allowed by applicable law so as to best effect the parties’ intent as expressly set forth herein, and, to the extent unenforceable, shall be severed from this Agreement; provided that, such severance will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms, unless the invalidity or unenforceability of any such provisions hereof does substantial harm to, or where the invalid or unenforceable provisions comprise an integral part of, or are otherwise inseparable from, the remainder of this Agreement. No entities not a party to this Agreement shall be deemed third party beneficiaries hereunder. No provision of this Agreement will be construed adversely to a party solely on the grounds that the party was responsible for the preparation of this Agreement or that provision.

    15.3 Survival. The obligations of the parties that, by their nature, survive termination of this Agreement will so survive including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability; provided that nothing herein shall be deemed to imply any continuing License to Client for the P2P Products and Software, all of which license and rights shall automatically terminate upon the expiration or earlier termination of this Agreement and shall be of no further force or effect.

    15.4 Assignment. Neither party may assign this Agreement or any of its obligations hereunder to any other person or entity, in whole or part, without the prior written consent of the other party (which consent shall not be unreasonably withheld, conditioned, or delayed), and any attempt to do so shall be deemed a breach of this Agreement and shall be void; provided that a party may freely make such an assignment in connection with a bona fide reorganization or sale of its business (provided, however, that the assigning party in such an instance shall provide written notice to the other party of such assignment). Subject to the preceding sentence, this Agreement, and the rights and obligations hereunder, shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. For purposes hereof, a change in majority ownership or voting control of Client (whether via stock sale, merger, reverse merger or other reorganization) shall be deemed an assignment of this Agreement. For avoidance of doubt, the withholding by P2P of its consent to an assignment of this Agreement by Client in the event Client (or its proposed assignee) is delinquent in the payment of any amounts then due and owing to P2P (which accounts must be brought current as a minimum condition of assignment) shall not be deemed to have been unreasonably withheld, conditioned or delayed.

    16. ENTIRE AGREEMENT AND ORDER OF PRECEDENCE. This Agreement is the entire agreement between Client and P2P and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any inconsistency between the provisions of the following documents, the inconsistency shall be resolved by giving precedence in the following order: (a) the Sales Order and all subsequent amendments thereto; (b) Documents incorporated into the Sales Order in the order in which they are listed; (c) these General Terms and Conditions. In the event such inconsistency relates to modification of the Indemnification, Proprietary Information, Representations, Warranties and Disclaimer, or Limitations of Liability Sections herein, then such modification must specifically state that it is amending this Agreement as so stated. The Parties will each perform such acts in good faith, execute and deliver such additional documents and instruments, and do such other things as may be reasonably requested by the other Party to accomplish the transactions contemplated by this Agreement and to carry out the purpose and intent hereof in accordance with the terms and conditions of this Agreement. All rights and remedies under or arising out of this Agreement at law or in equity shall be cumulative and not exclusive in nature. The section headings of this Agreement are for convenience only and shall not be used to interpret any term or provision of this Agreement. This Agreement may be separately executed by the parties in any number of originally, electronically scanned or digitally executed counterparts, all of which, taken together, shall constitute one and the same instrument and be deemed an originally executed counterpart for all purposes hereof. By signing this Agreement Client acknowledges and agrees that it has completed all due diligence deemed necessary or advisable by Client before entering into this Agreement, and Client further acknowledges that there has been no reliance by Client on any representations outside the express terms of this Agreement.

    17. NOTICE. All notices, requests, demands, and determinations shall be subject to the notice provisions set forth in the Master Services Agreement.   

    General Terms and Conditions Post Date: July 1, 2024