PROJECTOR PSA BY BIGTIME
LICENSE AND SERVICES SUBSCRIPTION AGREEMENT
Terms and Conditions
The terms set forth below apply to the Order Agreement executed by Client and to any subsequently mutually executed Order Agreement and/or Statement of Work between the Client identified on the Order Agreement (the “Customer”) and Projector PSA (“PPSA”) a wholly own subsidiary of BigTime Software (“BigTime”). The terms below, which describe and set forth the general legal terms governing the relationship (“Agreement”), and one (1) or more Order Agreements and/or Statements of Work describing and setting forth detail about that relationship that are governed by the Agreement, including certain features and functionality of Projector PSA’s Professional Services Automation software offerings and certain limitations on its software-as-a-service offerings, in each case specified in the applicable Order Agreement (the “Service”) constitute the agreement governing the use of the Service and any other exhibits and/or amendments that may be incorporated herein or under any Order Agreement, collectively, the “Agreement’). This Agreement relates to the use of PPSA’s Professional Services Automation software (“Projector™” or the “System”), use of which is provided to the Client in an Application Service Provider model (the “Service”).
In consideration of the premises and mutual covenants herein contained, PPSA and Client hereto agree as follows:
1. PERIOD OF AGREEMENT
This Agreement shall commence on the Effective Date and continue in effect for the amount of time identified in the applicable Order Agreement (the “Initial Term”). Thereafter, this Agreement will be extended automatically for: (i) successive periods equivalent in length to the Initial Term, if the Initial Term is less than one (1) year, or (ii) successive one (1) year periods, if the Initial Term is one (1) year or longer (each, a “Renewal Term”, and the Initial Term and all Renewal Terms, together, the “Term”), unless Customer cancels their account at least thirty (30) days prior to the end of the then-current term. In addition, Projector may cancel this Agreement effective upon expiration of the then-current term by providing Customer written notice of non-renewal at least ninety (90) days prior thereto.
2. CLIENT RESPONSIBILITIES
The Client is responsible for the accuracy and completeness of data entered in Projector, whether entered by the Client or by PPSA at the direction of the Client. The Client shall indemnify PPSA against any third party claim that the data (a) infringes on any third party’s intellectual property or proprietary rights, or rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation; (c) is defamatory, trade libelous, threatening, abusive, pornographic or obscene; (d) contains viruses or other similar harmful or deleterious programming routines; or (e) contains links to any such material. Client’s obligations to indemnify are contingent upon PPSA: (a) giving prompt written notice to Client of any such claim; (b) allowing Client to control the defense and any related settlement of any such claim; and (c) furnishing Client with reasonable assistance in the defense of any such claim, so long as Client pays PPSA’s reasonable out-of-pocket expenses. The Client agrees not to store Personal Information in Projector. Personal Information means any of the following data related to a person: (a) any government-issued identification number, such as a Social Security number, driver’s license number, or identification card number, (b) any financial account number, such as a credit card number, debit card number, or bank account number, (c) any information, such as an access code or password that would permit access to any of the person’s financial accounts, (d) any medical information, or (e) any information that identifies the person’s race, religion, sexual preference, or political preference. Personal Information does not include any other information not specifically included in the above definition. For example, Personal Information does not include a person’s name, contact information, work-related skills, or work-related experience. The Client agrees to provide PPSA current, complete, and accurate billing information, and to use reasonable commercial efforts to maintain and update the billing information as required, keeping it current, complete and accurate. The Client agrees not to resell the Service. The Client agrees to use Projector solely for the purpose of operating its business, and further agrees not to use Projector for the primary purpose of degrading the performance of Projector for other Clients (for example, by submitting reports repeatedly specifically to degrade performance). Use of Projector to purposefully degrade performance constitutes a material breach of this Agreement and is subject to immediate termination of Service.
3. INTELLECTUAL PROPERTY
PPSA grants the Client nonexclusive rights during the Period of Service to use the Service (including any software, documentation, or other materials supplied by PPSA in conjunction with the Service) solely for the purpose of operating its business. In no case will the Client knowingly allow a person to view or access Projector, its documentation, its output reports, or any other information that could reasonably be construed to be PPSA intellectual property for the purpose of enabling that person to assist a competitor of PPSA. PPSA shall indemnify Client against any third party claim that the Service (including any software, documentation, or other materials supplied by PPSA in conjunction with the Service) (a) infringes on any third party’s intellectual property or proprietary rights, or rights of publicity or privacy; or (b) violates any law, statute, ordinance or regulation. PPSA’s obligations to indemnify are contingent upon Client: (a) giving prompt written notice to PPSA of any such claim; (b) allowing PPSA to control the defense and any related settlement of any such claim; and (c) furnishing PPSA with reasonable assistance in the defense of any such claim, so long as PPSA pays Client’s reasonable out-of-pocket expenses. Except for the rights expressly granted herein, this Agreement does not transfer from PPSA to the Client any right, title, or interest in or to PPSA intellectual property. The Client agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from Projector or the Service. The Client will maintain ownership of the data that it or PPSA, at Client’s direction, has entered in the system and has the right to extract that data at will during the Period of Service, subject to the functionality of the product. Any time during the Period of Service or within thirty (30) days after termination, Client has the right to promptly receive an extract of Client’s data in the form of a copy of a database containing Client’s data as stored by the Service, subject to the standard fees for data extraction. PPSA shall not disclose Client’s data to any person other than to (1) a person who has been registered by Client as a Projector user of Client’s Projector account, and who has been granted permission by Client within Projector to view such data, (2) an employee or agent of PPSA who has been authorized by PPSA to provide support to Client and solely for the purpose of supporting Client (which may be to respond to a support question, to provide implementation consulting services, to test the Service as a component of the QA process, or to access information needed for billing), and (3) a third party where required by law. If PPSA intends to disclose Client’s data because of (3) above, or for a reason other than (1) or (2) above, then PPSA shall use reasonable efforts to promptly notify Client in advance of the intent of disclosure unless such notification is prohibited by law.
PPSA shall not make any use of Client’s data other than as necessary to provide the Service to Client hereunder.
4. PAYMENT TERMS
The Client agrees to compensate PPSA for use of the Service as defined in this Agreement for the duration of the Term. Subscription fees are calculated based on the subscription rates described in the Order Agreement(s).
When a new instance of Projector software is initiated, the new software instance must be configured through an implementation process. When implementations are done through PPSA Professional Services, a detailed Statement of Work (SOW) will be delivered outlining the process and deliverables. An Implementation Sandbox (“Implementation Sandbox”) is a Projector account used for implementation, testing, and training purposes during the time when PPSA Professional Services are engaged with configuring and implementing Projector. The Implementation Sandbox is used for implementation purposes only and the Client may not use Implementation Sandboxes to manage Client’s business activities. While the Client is utilizing the Implementation Sandbox, a monthly “Implementation Sandbox fee” is charged to the Client. The Client is not charged for User Subscription fees until “Go Live”. “Go Live” is when the Implementation Sandbox is converted into a production instance at which point the User Subscription fees begin and the Client may begin engaging in business activities.
The Client will be invoiced via email at the beginning of each calendar month for the previous month’s Consulting Services and Implementation Sandbox fees provided. Client will be invoiced for the remainder of the Service Term (unless otherwise stated in the Order Agreement) at Go Live or 6 months after the Effective Date of the agreement, whichever is earlier. Invoices are due and payable within thirty (30) days from invoice date and are payable in US Dollars. However, in the event that Client’s payments are delinquent more than twice in any one-year period, then, for the subsequent year, invoices shall be due and payable within seven (7) days from invoice date.
No sooner than one year after the Effective Date, PPSA may alter the subscription rates for using the Service. PPSA shall give Client ninety (90) days’ notice of such pricing changes.
5. DATA STORAGE
PPSA shall employ commercially reasonable techniques to protect Client’s data. These techniques shall include operation of PPSA’s servers in a secure data center, encrypted communications between Client’s computers and PPSA’s servers, irreversible encryption of user passwords, data storage on redundant disk drives, daily offsite storage of database log files needed to restore the data, weekly offsite backups of the data itself, and retention of the weekly backups for at least six (6) months. However, PPSA shall in no case retain backups for more than five (5) years.
6. SYSTEM AVAILABILITY AND SERVICE CREDITS
PPSA shall use commercially reasonable efforts to make the Service available at all times, other than when performing scheduled and unscheduled maintenance. PPSA shall schedule maintenance at times when the Service is least likely to be used by Projector Clients. Scheduled maintenance is generally associated with new releases and with patches to correct defects. PPSA shall use commercially reasonable efforts to minimize unscheduled maintenance. For purposes hereof, a “Service Interruption Period” is any period of time in which the Service is unavailable to Client due to problems with PPSA’s network, the network of the provider of PPSA’s Internet connection, or the Service itself. From time to time, PPSA schedules Service Interruption Periods for new releases, new hardware, and the repair of defects. A “Scheduled Service Interruption Period” is any Service Interruption Period for which Client has been notified at least 5 days in advance. In addition, the total number of Scheduled Service Interruption Periods shall not exceed two per month and the total duration of Scheduled Service Interruption Periods shall not exceed ten (10) hours per month. All other Service Interruption Periods are referred to as “Unscheduled Service Interruption Periods”. If the aggregate of the Unscheduled Service Interruption Periods (“Aggregated Interruption”) in any calendar month reaches or exceeds a total of eight (8) hours, and if the Aggregated Interruption impacts Client’s business, then Client is entitled, upon submission of a written request, to a credit. Any credit due will appear on Client’s next monthly invoice. The credit shall be 2% of that month’s subscription charges for every eight (8) hours of Aggregated Interruption. However, the credit shall not exceed 100% of that month’s subscription charges.
7. PRODUCT SUPPORT
PPSA shall provide telephone and email support to Client from 9AM to 5PM Eastern US time, Monday through Friday, except for the following days: New Year’s Day, Martin Luther King, Jr.’s Birthday, President’s Day, Juneteenth, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Day After Thanksgiving, Day Before Christmas, Christmas Day, and Day After Christmas. Support covers investigating possible defects in the Projector software, providing work-arounds to defects, and providing brief answers to specific questions about Projector functionality. PPSA offers consulting and training services to answer questions not covered by support.
Critical Defects” are defects that corrupt data, affect the stability of the system, or disable critical Projector functionality. “Severe Defects” are defects that disable critical Projector functionality, but where it is reasonable to expect that a remedy within one business day is not crucial to Client. “Moderate Defects” are defects for which reasonable work-arounds are available. The classification of defects as Critical, Severe, and Moderate shall be as reasonably determined by PPSA.
PPSA shall make commercially reasonable efforts to respond to support requests as follows:
- Critical Defects: Two business hours
- Severe Defects: Four business hours
- Moderate Defects: One business day
PPSA shall make commercially reasonable efforts to resolve support requests as follows:
- Critical Defects: PPSA shall remedy Critical Defects as quickly as is commercially reasonable, generally in less than one business day.
- Severe Defects: PPSA shall remedy Severe Defects as quickly as is commercially reasonable, but with a lower priority than Critical Defects.
- Moderate Defects: PPSA shall remedy Moderate Defects at its sole discretion, and will generally do so as part of the scheduled release process.
8. MODULE ENHANCEMENTS, AND NEW MODULES
Enhancements to the Service are planned and prioritized by PPSA based on business value, which is largely determined by customer feedback. Enhancements to existing modules are included in the Service. Optional new modules may, at the discretion of PPSA, require additional subscription fees.
9. TERMINATION
Except where expressly provided otherwise in this Agreement, this Agreement may be earlier terminated by either party (a) if the other party materially breaches a provision of this Agreement (including any Order Agreement) and fails to cure such breach within thirty (30) days (or ten (10) days in the case of Customer’s failure to pay any invoiced amount when due) after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy, or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition, or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within ninety (90) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates, or otherwise fails to operate in the ordinary course. Except with respect to termination by Customer pursuant to clause (a) or (b) of this Section 9, or as otherwise expressly provided in this Agreement, in no event will any termination of this Agreement relieve Customer of its payment obligations with respect to Service Fees for the then-current Term.
Upon any expiration or termination of this Agreement: Projector will invoice Customer for, and Customer shall promptly pay, all outstanding Service Fees owed to Projector for the then-current Term; and (c) all other rights, obligations, and licenses of the parties shall cease, except that (i) all obligations that accrued prior to the effective date of termination (including all payment obligations) and all remedies for breach of this Agreement shall survive.
10. LIMITATION OF LIABILITY
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED BY THE PARTIES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, LOSS OF PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, EXCEPT FOR EITHER PARTY’S INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS, EACH PARTY’S TOTAL LIABILITY FOR ALL ACTIONS OR CLAIMS OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO STRICT LIABILITY AND NEGLIGENCE), WARRANTY OR OTHER LEGAL OR EQUITABLE GROUNDS, SHALL BE LIMITED TO MONEY DAMAGES, AND THE AGGREGATE AMOUNT THEREOF SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY CLIENT TO PPSA IN THE PREVIOUS TWELVE (12) MONTHS FOR THE SERVICES SUBJECT TO DISPUTE.
11. FORCE MAJEURE
Neither party shall be liable in damages for nonperformance of its obligations due to reasons beyond the reasonable control of the party whose performance is affected, including, but not limited to, Acts of God, government restrictions, wars, insurrections, and terrorism (herein, “force majeure”). PPSA shall not have the right to terminate the Service for nonperformance due to the reasons stated in the previous sentence except that in the event nonperformance due to force majeure lasts for more than thirty (30) days, PPSA may terminate the Service immediately upon written notice to Client.
12. MERGER, SUCCESSORS, AND ASSIGNS
Neither party may assign or sublicense the rights granted under this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, either party may assign this Agreement to a parent or purchaser of all or substantially all of its stock or assets upon notice to the other party. The merger or consolidation of the Client or PPSA into or with any other entity shall not terminate this Agreement. All of the provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns.
13. CHOICE OF LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, USA, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to this Agreement. The exclusive forum and venue for all legal or equitable actions or proceedings arising out of or relating to this Agreement shall be in a federal or state located in Cook County, Illinois, and each party hereby irrevocably consents to the personal and subject matter jurisdiction of such courts and waives any claim that such courts do not constitute a convenient or appropriate venue for any such actions or proceedings. EACH PARTY IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
14. WAIVER
Waiver by one party hereto of breach of any provision of this Agreement by the other shall not operate or be construed as a continuing waiver.
15. NOTICES
Any and all notices, demands, or other communications required or desired to be given hereunder by any party shall be in writing and shall be validly given or made to another party if personally served or if deposited in the United States mail, via certified or registered mail, return receipt requested, at the address set forth in the preambles hereto (or such other address as shall be specified in a notice given in accordance herewith). If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice, demand, or other communication is given by certified or registered mail, such notice shall be conclusively deemed given five (5) days after deposit thereof in the United States mail properly addressed to the party to whom such notice, demand, or other communication is to be given. Notice may also be given via email by Client to PPSA at support_projector@bigtime.net, and by PPSA to Client at the email address to which Client has requested that invoices be sent.
16. ENTIRE UNDERSTANDING
This document constitutes the entire understanding and agreement of the parties with respect to the subject matter hereof and may not be modified, amended, or terminated except by a written agreement signed by both of the parties hereof.
17. UNENFORCEABILITY OF PROVISIONS
If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect.
18. CONSULTING AND TRAINING SERVICES
PPSA agrees to provide Client with consulting and training services at an hourly rate of US $250 per hour for a period ending one year after the Effective Date as outlined in the Order Agreement. The following terms shall be applicable to all such services:
“Deliverables” means the tangible material PPSA is required to deliver to Client as described in a Scope of Work document (a “SOW”) executed by the parties.
Consulting Services. PPSA shall develop and deliver the Deliverables and/or perform the consulting or other services (the “Consulting Services”) described in a SOW signed by the parties, in accordance with the provisions of this Agreement and the applicable SOW. Services provided by PPSA personnel shall be provided in a professional and workmanlike manner.
Client’s Rights. PPSA hereby grants to Client all rights to use the Deliverables in its business. Notwithstanding anything to the contrary contained herein, the parties agree that any improvement, adaptation, modification or alteration of the System (whether or not implemented), together with any and all concepts, inventions, discoveries, materials, ideas, know-how, techniques, copyrights, trade secrets, or other proprietary rights relating thereto shall be and remain the sole and exclusive property of PPSA. PPSA hereby grants to Client a non-exclusive, perpetual, irrevocable, and royalty-free license to utilize such works in conjunction with the System.
Stop Work Order. If PPSA fails to correct any defective work, or otherwise fails to fulfill any of its obligations hereunder, Client may issue a written order to PPSA to stop work (“Stop Work Order”). Upon receipt of a Stop Work Order, PPSA shall promptly suspend all work and incur no further expense or commitment in connection with the Consulting Services.
Termination. Any SOW may be terminated by Client upon two (2) days written notice to PPSA for convenience, or by either party upon thirty (30) days written notice to the other party for cause due to the other party’s uncured breach of the Agreement or the bankruptcy or insolvency of the other party. Upon a termination by Client for convenience or a termination by PPSA for cause, Client shall pay PPSA for all Consulting Services provided to Client in accordance with the applicable SOW prior the effective date of termination. Upon termination of a SOW by Client for cause: (i) Client shall be released from any outstanding payment obligations for the Consulting Services described in the applicable SOW, and (ii) PPSA shall refund any amounts Client paid for Consulting Services that have not been provided to Client in accordance with this Agreement and the applicable SOW. Upon termination of this Agreement for any reason, upon payment of all sums owed to PPSA hereunder, PPSA shall promptly deliver any Deliverables in development, and shall promptly return to Client all data, records, or other property, including any copies, provided by Client to PPSA under this Agreement.
Invoicing. PPSA shall provide monthly invoices to Client for that portion of the Consulting Services performed in accordance with the Order Agreement and the applicable SOW during the preceding month, as well as any associated actual travel expenses that have been incurred in accordance with the SOW or with Supplier’s prior written approval.
19. CONFIDENTIALITY AND NONDISCLOSURE
For purposes of this Agreement, “Confidential Information” shall mean all information containing, describing or relating to a party’s (i) current, future, or proposed products or services, (ii) plans and technology related to such products, (iii) business operation and internal structure; (iv) supplies, suppliers, Clients, customers, and all fee arrangements related thereto; (v) financial information, condition, prospects and plans; (vi) contracts and parties thereto; and (vii) all other information not generally known to the public; regardless of how expressed or the medium on which it is contained. Each party shall, during the term of this Agreement and for ten (10) years thereafter, keep in confidence all of the other party’s Confidential Information, and not use such Confidential Information for any purpose other than as contemplated by this Agreement without the other party’s prior written consent. Neither party may disclose the other party’s Confidential Information to any person except its employees and independent contractors as necessary to effect the purposes of this Agreement, all of which individuals shall have agreed in writing to receive Confidential Information in confidence as required under the terms of this Agreement. Each party shall take reasonable measures to maintain the confidentiality of the other party’s Confidential Information, but never less than the standard of care that such party maintains to protect the secrecy of its own Confidential Information. Each party will promptly give notice to the other party of any unauthorized use or disclosure of the other party’s Confidential Information of which it becomes aware. Exceptions. The recipient’s obligations hereunder shall not apply to information that it can conclusively prove (i) was rightfully in its possession or known to it, without any obligation of confidentiality prior to receiving it from the other Party; (ii) is, or subsequently becomes, legally and publicly available without breach of this Agreement or any other restriction; (iii) is rightfully obtained from a source other than the disclosing Party without any obligation of confidentiality; or (iv) is independently developed by the recipient without any reference to the disclosing party’s information. Further, the recipient may disclose Confidential Information pursuant to a valid and binding order issued by a court or government agency, provided that it has provided the disclosing party with written notice of such obligation and an opportunity to oppose, contest, or limit such disclosure prior to making the disclosure.
20. GDPR AND EEA STANDARD CONTRACT CLAUSES
To the extent that PPSA process any Personal Data (as defined in the Standard Contract Clauses located at (https://bigtime.net/projector/standard-contractual-clauses) and (i) the Personal Data relates to individuals in the EEA or (II) the customer is established in the EEA, the customer agrees that PPSA does so as a processor only and the parties agree to comply with the Standard Contract Clauses located at (https://bigtime.net/projector/standard-contractual-clauses/). PPSA subprocessor lists can be located at (https://bigtime.net/projector/projector-subprocessors/). PPSA may update this list from time to time. If Customer objects to the addition of a subprocessor, Customer must email team@projectorpsa.com. Otherwise continued use of the Services signifies Customer’s acceptance of new subprocessors.