LICENSE AGREEMENT
This License Agreement (together with all Order Forms and SOWs, the “Agreement”) is entered into by and between Protopia AI, Inc. (“Protopia”), a Delaware corporation, and the customer identified in the associated Order Form (“Customer”). This Agreement is effective as of the Effective Date set forth on the Order Form. Protopia and Customer are each referred to herein as a “party” and collectively as the “parties.” All capitalized terms used in this Agreement shall have the meanings stated in the applicable Order Form unless otherwise defined herein. In the event of a conflict between the terms in this License Agreement and an Order Form, the terms of the License Agreement shall control unless the applicable Order Form expressly states otherwise. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
License and Services. Subject to the terms and conditions of this Agreement, Protopia hereby grants Customer limited, non-exclusive, non-transferable, non-sublicensable, revocable license to host, execute, operate, and use the Software in the quantities and subject to any other terms and/or restrictions set forth on the applicable Order Form or otherwise agreed to in writing by the Parties in a secure location solely for the internal business use within Customer’s systems, networks, and devices (the “Permitted Use”) in the Territory. Protopia shall provide Customer the Professional Services set forth in the applicable SOW, if any. “Software” means the Protopia software described in the applicable Order Form and any additional functionality, modules, or features described in any mutually agreed written statement of work or similar written agreement between (each, an “SOW”), including any related materials and documentation. The Software may be in Source Code and/or library format. “Source Code” means computer programming code, including all modules it contains, plus any associated interface definition files, scripts, instructions, and other materials used to control compilation and installation of an executable. Customer acknowledges and agrees that the Source Code is highly sensitive. Any use of the Software or Source Code outside the Permitted Use shall constitute a material breach of this Agreement.
Term. The “Initial Term” shall commence on the Effective Date and shall continue for one (1) year, unless a different initial term is specified in the applicable Order Form or Statement of Work, in which case such term shall apply. Thereafter, this Agreement shall automatically renew for successive terms equal in duration to the Initial Term (each, a “Renewal Period” and, together with the Initial Term, the “Term”), unless either party gives written notice of non-renewal to the other party at least ninety (90) days before the conclusion of the Initial Term or applicable Renewal Term.
Fees and Taxes. Customer shall pay the Fees in the amounts and on the payment schedule set forth in the applicable Order Form or SOW. If the applicable Order Form or SOW does not specify payment terms, all Fees shall be due and payable Net 30 from the Effective Date. All payments of Fees are non-refundable. If Customer fails to pay any past due invoice, Protopia may charge interest on such past due amounts at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower. All fees are exclusive of any taxes, duties or similar charges now in force or imposed in the future with respect to the transaction, the delivery of the Software, or provision of Professional Services, including, without limitation, sales, use, value added, goods and services, consumption, customs, or similar taxes or duties, but excluding taxes based solely on Protopia’s net income. Customer is responsible for the payment of all such taxes, duties and any related penalties and interest. If Customer is legally required to withhold any amounts from payment to Protopia, Customer shall deduct only the required withholding, remit such amount to the appropriate taxing authority, and promptly provide Protopia with properly executed certificates, receipts or other documentation evidencing payment to enable Protopia to claim any applicable credit. Customer shall also provide reasonable assistance to Protopia if Protopia wishes to apply for reduced withholding under any applicable income tax treaty.
Termination. Either party may terminate this Agreement if the other party (a) materially breaches this Agreement and, if curable, fails to cure such breach with thirty (30) days of receiving written notice of the breach, or (b) becomes insolvent or bankrupt, becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law, has a receiver or manager appointed, makes an assignment for the benefit of creditors, or otherwise seeks protection under any law relating to winding up or liquidation of its business. For the avoidance of doubt, Customer’s breach or violation of Sections 1 or 5 shall be a material breach, and Protopia may immediately terminate this Agreement without notice. Upon expiration or termination of this Agreement for any reason, Customer shall immediately cease all use of the Software and, within ten (10) days, return to Protopia or securely destroy all copies of the Software, including all Source Code, and any related materials, whether in tangible or electronic form, including all extracts, notes, and derivative materials derived therefrom. Upon completion of such return or destruction, Customer shall provide Protopia with a written certification, signed by an authorized officer, confirming that all such materials have been returned or permanently destroyed and that no copies have been retained in any form. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination, including Sections: 3, 5, and 7-19 shall survive termination of this Agreement. For the avoidance of doubt, the termination of any SOW shall not terminate this Agreement, and the termination of this Agreement shall terminate any then-current SOW.
Source Code Protection. In addition to the license limitations and confidentiality obligations set forth elsewhere in this Agreement, with respect to any Source Code provided to Customer hereunder: (a) Customer will not place, or make available, the Source Code on any computer network except for the secure networks owned or leased by Customer to be used solely for the benefit of Customer consistent with the license granted by Protopia hereunder; (b) Customer will not remove or export the Source Code from the United States; (c) Customer will store and protect all copies of the Source Code using administrative, physical, and technical safeguards that (i) are at least as protective as those Customer applies to its own software of equivalent sensitivity, and (ii) meet industry-standard practices for highly sensitive source code, provided such safeguards, at a minimum, include least-privilege access controls, multi-factor authentication, encryption in transit and at rest, continuous monitoring for unauthorized access, and storage solely on Customer’s secure networks; (d) Customer shall ensure that any physical copies of the Source Code are protected under lock and key and are not permitted to be transferred to any other location without the express written agreement of Protopia; and (e) access to the Source Code will be limited to Customer personnel who (i) have an authorized and legitimate need to access it, (ii) are legally bound confidentiality and security obligations at least as protective as those in this Agreement, (iii) have not been convicted of any felonies or any crime involving theft, dishonesty, hacking, or misuse of data, and (iv) agree to comply with reasonable security measures or audits requested by Protopia. Customer shall maintain and, upon Protopia’s request, provide to Protopia, the names of all employees who have had access to the Source Code.
Technical Requirements. Customer shall be solely responsible for obtaining, configuring and maintaining any hardware, network connectivity and third-party software required to use the Software, including computers, operating systems, web browsers and storage devices.
Restrictions. Except as expressly permitted under this Agreement, Customer will not, and will not permit any third party to: (a) access or use the Software for any other purpose other than the Permitted Use (including for any competitive analysis, commercial, professional, or other for-profit purposes); (b) copy the Software (except as required to run the Software and for reasonable backup purposes); (c) analyze, decode, decompile, disassemble, translate or reverse engineer the Software or otherwise attempt to derive the Software, Source Code, algorithms, methods or techniques used or embodied in the Software, unless explicitly necessary for any Permitted Use; (d) modify, adapt, or create derivative works of the Software; (e) rent, lease, loan, resell, transfer, sublicense, display or distribute the Software to any third party; (f) use or offer any functionality of the Software on a service provider, service bureau, hosted, software as a service, or time sharing basis, provide or permit other individuals or entities to create Internet “links” to the Software, or “frame” or “mirror” the Software on any other server, or wireless or Internet-based device; (g) disclose to any third party the results of any benchmark tests or other evaluation of the Software, (h) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on the Software; (i) use the Software to collect or store personal data about any person or entity; (j) use the Software to build a similar or competitive product or service; (k) interfere with or disrupt servers or networks connected to any website through which the Software provided; or (l) use the Software for any illegal, unauthorized or otherwise improper purposes.
Confidentiality. Each party (the “Disclosing Party”) may, from time to time during the Term, disclose to the other party (the “Receiving Party”) certain confidential information regarding the Disclosing Party’s business, including, without limitation, technical, marketing, financial, employee, planning, results, usage statistics, data, and other confidential or proprietary information (in aggregate or otherwise) that: (a) is in tangible form marked as “confidential” or “proprietary” or with a similar legend; (b) is in intangible form that is designated by the Disclosing Party as confidential at the time of disclosure; (c) based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential; or (d) is obtained or derived from analyzing, using, or interpreting any of (a), (b), or (c) (“Confidential Information”). For the avoidance of doubt, Protopia’s Confidential Information shall include the Software, Source Code, Feedback (as defined below) and any related documentation or specifications. The Receiving Party shall use the Confidential Information of the Disclosing Party solely as necessary to exercise its rights or perform its obligations under this Agreement. Receiving Party may not disclose any Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party. The Receiving Party shall protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure using the same degree of care it uses to protect its own confidential and proprietary information of a similar nature, but in no event less than a reasonable degree of care. The Receiving Party’s obligations under this section shall not apply to Confidential Information that: (w) was lawfully known to the Receiving Party prior to disclosure by the Disclosing Party; (x) is disclosed to the Receiving Party by a third party having the right to make such disclosure without restriction; (y) is or becomes publicly available through no fault of the Receiving Party; or (z) is independently developed by the Receiving Party without access or reference to, or use of, the Disclosing Party’s Confidential Information. Confidential Information may also be disclosed by the Receiving Party to the extent such disclosure is: (i) approved in writing by the Disclosing Party; (ii) necessary for the Receiving Party to enforce its rights under this Agreement; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party of such requirement and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful effort to contest or limit the scope of disclosure. Notwithstanding the foregoing, each party may disclose the other party’s Confidential Information to its employees, contractors, consultants, or agents (collectively, “Personnel”) on a strict need-to-know basis and solely to exercise its rights and perform its obligations under this Agreement. Each party represents that such Personnel are bound by non-disclosure obligations at least as restrictive as those contained in this Agreement.
Ownership. All right, title, and interest in and to the Software, including any modifications, enhancements, or derivative works thereof, and all Intellectual Property embodied therein or related thereto, shall be and shall remain the sole and exclusive property of Protopia. “Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other works of authorship (including moral rights); trademarks, service marks, trade dress, trade names, logos and other source identifiers; trade secrets; software, databases and data; and all other intellectual property and industrial designs. Except for the express limited license granted herein, Protopia does not grant to Customer any other licenses or rights, whether express or implied, to the Software or any other Protopia Intellectual Property. Customer hereby assigns, and agrees to assign, to Protopia all right, title, and interest in and to all feedback provided to Protopia that relates to the Software (“Feedback”). All data, information and other content accessible through the Software (“Data”) are the sole responsibility of the party from whom such materials originated.
Responsibility for Data. All data, information and other content provided to or accessible through the Software (“Data”) is the sole responsibility of the party from whom such Data originated. Customer acknowledges and agrees that Customer is solely responsible for all Data that Customer or any Customer authorized user submits, uploads, emails, transmits or otherwise makes available through the Software (collectively, “Customer Data”); and (b) giving all required notices and obtaining all necessary consents and rights (including all required permissions from Intellectual Property holders) before submitting Customer Data through or to the Software.
Protopia Indemnification. Protopia will defend Customer and its officers, directors, employees, agents, assigns and successors (collectively, “Customer Indemnitees”) from and against any claims, demands, actions, proceedings or suits (collectively, “Claims”) brought against any Customer Indemnitee by a third party and any resulting losses, damages, expenses, costs (including any reasonable fee for any attorney and any other professional and the cost of litigation) and liabilities (collectively, “Liabilities”) to the extent arising out of or relating to: (a) Protopia’s gross negligence or willful misconduct; or (b) use of the Software by Customer, when used as expressly permitted by this Agreement, infringes or misappropriates a third party’s Intellectual Property rights. Notwithstanding the foregoing, Protopia will have no obligation under this Section 11 or otherwise with respect to any Claim to the extent it arises from: (x) use of the Software not expressly permitted under this Agreement; (y) use of the Software in combination with products, equipment, software, or data not provided by Protopia, if such infringement or misappropriation would have been avoided but for such combination; or (z) any modification of the Software by any person other than Protopia or its authorized agents or subcontractors. Section 11 states Protopia’s sole liability and Customer’s exclusive remedy for all Claims. If the Software becomes, or is likely to become, the subject of a Claim of Intellectual Property rights infringement or misappropriation, Protopia may, at its sole option and expense, either: (a) procure for Customer the right to continue using the Software on substantially the same terms as provided in this Agreement; or (b) replace or modify the Software so that it no longer infringes or misappropriates any third-party rights, provided that any replacement or modified Software maintains materially equivalent functionality and performance. If, after commercially reasonable efforts to implement (a) or (b), Protopia determines that neither option is feasible, Protopia will notify Customer in writing, and Customer shall cease using and return the allegedly infringing Software, and (ii) be entitled to a pro-rata refund of any pre-paid fees for the allegedly infringing Software.
Customer Indemnification. Customer shall indemnify, defend, and hold harmless Licensor and its affiliates, and their respective officers, directors, employees, and agents, from and against any and all Claims and Liabilities arising out of or related to: (a) any breach by Customer or its personnel of this Agreement, including any violation of the license restrictions or confidentiality and security obligations relating to the Source Code or other Confidential Information; (b) any unauthorized access, use, disclosure, or distribution of the Source Code by Customer or its personnel; and (c) any use of the Software or Source Code by Customer in a manner not expressly permitted under this Agreement. Protopia shall promptly notify Customer of any Claim for which it seeks indemnification, and Customer shall assume control of the defense and settlement of such Claim; provided, however, that Customer shall not settle any claim in a manner that imposes any admission of liability or obligation on Protopia without Protopia’s prior written consent.
Disclaimer of Warranty. THE SOFTWARE AND ANY SUPPORT, PROFESSIONAL SERVICES, CUSTOMER SERVICE, OR OTHER MATERIALS, DOCUMENTATION, OR SERVICES RELATED THERETO ARE PROVIDED TO CUSTOMER STRICTLY “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” PROTOPIA , TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, OR COMPLETENESS OF THE SOFTWARE AND SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT USE OF SUCH SOFTWARE AND SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET CUSTOMER’S REQUIREMENTS.
AI Processing and Output Disclaimer. Customer acknowledges that the Software employs artificial intelligence capabilities that generate outputs based on patterns in data and other automated processes. Protopia does not guarantee that any outputs, recommendations, inferences, or results produced by the Software (“AI Outputs”) will be accurate, complete, free of errors, or suitable for any particular purpose. Customer is solely responsible for evaluating the accuracy and appropriateness of all AI Outputs and for all decisions made in reliance on such AI Outputs. Customer further acknowledges that the Software processes data provided or made available by Customer, and that Protopia does not control, verify, or assume responsibility for the content, legality, integrity, or accuracy of any such data. Protopia shall have no liability arising from or related to (a) the processing of Customer Data in accordance with this Agreement, or (b) any AI Outputs generated by the Software, including any actions or failures to act taken by Customer or any third party based on such AI Outputs. To the maximum extent permitted by applicable law, all AI Outputs are provided “as is,” and Protopia expressly disclaims any warranties, express or implied, relating to the AI capabilities of the Software. Customer assumes all risks associated with its use of the AI features and its reliance on AI Outputs.
Limitation of Liability. IN NO EVENT SHALL PROTOPIA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, OR BUSINESS OPPORTUNITY, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF PROTOPIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PROTOPIA’S AGGREGATE LIABILITY UNDER OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO PROTOPIA FOR THE SOFTWARE OR SERVICES GIVING RISE TO THE CLAIM DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIABILITY AND WARRANTY LIMITATIONS SET FORTH IN THIS AGREEMENT ARE A REASONABLE ALLOCATION OF RISK AND LIABILITY CONSIDERING THE RESPECTIVE BENEFITS OBTAINED HEREUNDER. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
Injunctive Relief. Customer acknowledges and agrees that any actual or threatened breach by Customer of its obligations relating to the Source Code or other Confidential Information set forth in this Agreement will result in immediate and irreparable harm to Protopia for which there is no adequate remedy at law and for which monetary damages would be an inadequate remedy. Accordingly, in addition to any other rights or remedies available at law or in equity, Protopia shall be entitled to seek immediate injunctive relief, specific performance, or other equitable remedies to prevent or curtail any such breach, without the necessity of posting a bond or proving actual damages. Nothing in this Agreement shall limit Protopia’s right to pursue any other remedies available under applicable law.
Notice. All notices, demands and other communications (“Notices”) to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and sent to the parties according to the contact information provided below, or such other contact information as either party shall notify the other in accordance with this Section:
To Protopia
Protopia AI, Inc.
c/o CEO
600 Congress Avenue
Austin, TX 78701
To Customer
As set forth in the Order Form or SOW
Marketing and Publicity. Customer grants Protopia the right to use Customer’s name and logo in Protopia’s customer lists, presentations, website, and other standard marketing and promotional materials, subject to Customer’s reasonable trademark usage guidelines. At Protopia’s request, the parties will in good faith discuss collaborating on a mutually acceptable case study regarding Customer’s use of the Software; provided, however, that no case study or public statement will be published without Customer’s prior written approval, not to be unreasonably withheld, conditioned, or delayed.
General. This Agreement shall be governed by and construed and enforced in accordance with the laws of the United States of America and the State of Texas, without regard to conflict of laws. The parties agree that any action, proceeding, controversy or claim between them arising out of or relating to this Agreement (collectively, an “Action”) shall be brought only in a court of competent jurisdiction in Travis County, Texas. Each Party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action. Neither party shall be liable for any failure to perform under this Agreement to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection or any other cause beyond the reasonable control of the party invoking this provision. Customer shall not assign this Agreement in any manner, and any purported assignment shall be void. Protopia may assign this Agreement, in whole or in part, without Customer’s consent, in connection with a merger, acquisition, or sale of substantially all of its assets. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Customer shall comply in all respects with all U.S. and foreign export laws and regulations. This Agreement constitutes the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior negotiations and understandings between the parties, both oral and written, regarding such subject matter. Nothing in this Agreement, express or implied, is intended to confer, nor will anything contained in this Agreement confer on, any person other than the parties and the respective successors or permitted assigns of the parties, any rights, remedies, obligations or liabilities. No waiver or modification of this Agreement shall be valid unless in a formal writing signed by an officer of each party. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. This Agreement shall be fairly interpreted in accordance with its terms and conditions without any strict construction in favor of or against either of the parties. This Agreement may be executed in counterparts, both of which together shall constitute one and the same instrument. Facsimile signatures shall be treated the same as original signatures.