Terms of Service

At PrimeStage, we provide software development, consulting services, and merchandise subject to these Terms & Conditions ("T&Cs"). The Statement of Work and/or Services Brief (referred to herein as "SOW") and performance of the parties thereunder is governed by and subject to these T&Cs which by reference are incorporated and made a part of the SOW, subject to any quote. PrimeStage means PrimeStage, Inc. "Customer" is identified as "Customer" or "You" herein, and collectively referred to with PrimeStage as "Parties" or separately as "Party". The T&Cs: • Are subject to change by PrimeStage from time to time • In effect as of the effective date of the SOW shall apply for the performance of that SOW • Will not apply retroactively to any SOW • Are dated and archived when superseded by a newer version PrimeStage represents that in the event You have a current signed agreement with PrimeStage regarding the subject-matter herein, then the terms and conditions of that agreement supersede any conflicting terms herein.

1. SOW TERMS AND CONDITIONS

PrimeStage will provide the services as specified in the SOW ("Services") governed by the T&Cs. In the event of a conflict between a term or condition in an SOW and those set forth here, these T&Cs will govern unless explicitly superseded in the SOW or as otherwise stated in the preamble herein.

2. TERM AND TERMINATION

The SOW begins on the date stated therein or, as otherwise mutually agreed between the Parties, and shall remain in effect for the term length stated in the SOW ("Services Period"). Either Party may notify the other in case of the other's alleged breach of a material provision of this SOW. The recipient shall have 30 days from the date of receipt of such notice to affect a cure. If the recipient of the notice fails to affect a cure within such period, then the sender of the notice shall have the option of sending a written notice of termination of the SOW, which notice shall take effect upon receipt. Notwithstanding the foregoing, PrimeStage may suspend its services or terminate the SOW if Customer fails to pay an invoice when due and if such non-conformance is not cured within 10 days following receipt of notice from PrimeStage.

3. PROJECT CHANGE REQUEST

Either Party may request a modification to any material provision of the SOW by submitting a Project Change Request ("PCR"). Upon receipt of a PCR, PrimeStage will estimate the financial and schedule impacts, if any. The Parties will review these estimates to determine whether the PCR would be mutually acceptable. If the Parties agree on the PCR, PrimeStage will attach the final PCR to the SOW. If the Parties are unable to agree within five (5) business days after the PCR is submitted, then the submitting Party may either withdraw the PCR or terminate the SOW with reasonable notice. If the SOW is terminated, due to an ability to reach agreement on a PCR, the only payments due are for the Work Product (defined herein below) delivered, Services performed, and expenses incurred by PrimeStage prior to the effective termination date.

4. CUSTOMER MATERIALS DELAY

Customer acknowledges that PrimeStage's performance of the Services and delivery of the Work Product is contingent on Customer's timely delivery of any customer materials ("Customer Materials") provided to PrimeStage in connection with the Services. Customer agrees that any reasonable scheduling or financial impacts caused by Customer's failure to deliver Customer Materials within the specified time will be treated as a PCR.

5. PERSONNEL

PrimeStage will determine the personnel assigned to perform the Services. Customer may request in writing, with specific legal reasons stated, the replacement of PrimeStage personnel or contractors.

6. PAYMENT TERMS

PrimeStage shall submit invoices for fees and reimbursable costs and expenses as described in the SOW or quote plus all related taxes and withholdings, except for those based on PrimeStage's net income. All amounts are due in the currency stated on the invoice and in full 30 days after the date of PrimeStage's invoice or in the manner specified in the SOW, with interest accruing thereafter at the lesser of 1.5% per month or the highest lawful rate. If all or a portion of any invoice is determined to be incorrect, the Parties will promptly investigate and correct or confirm the dispute. PrimeStage is not obligated to perform its services unless Customer is current in payment of all fees and charges due. Except as otherwise set forth herein, payment obligations by Customer to PrimeStage shall survive expiration or termination of the SOW.

7. WARRANTY

PrimeStage shall perform Services in a workmanlike manner in accordance with generally accepted industry standards. EXCEPT AS EXPRESSLY STATED IN THIS WARRANTY SECTION, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PRIMESTAGE (INCLUDING ITS SUPPLIERS) MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR ORAL, AND DISCLAIMS ALL IMPLIED WARRANTIES. INSOFAR AS PERMITTED UNDER APPLICABLE LAW, ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.

8. INTELLECTUAL PROPERTY

8.1 Ownership. Other than PrimeStage Materials, Open Source Software and any Third Party Materials (defined herein) Customer shall own all intellectual property rights associated with the deliverables, works of authorship or other products developed or created and delivered by PrimeStage to Customer in the course of performing Services ("Work Product"), as well as Customer's derivative works thereof, subject to Customer's payment in full under such SOW and subject to PrimeStage's rights in the underlying intellectual property embodied therein or used by PrimeStage to perform the Services.

8.2. PrimeStage Materials Exclusion. "PrimeStage Materials" means any materials developed by PrimeStage: (a) prior to the Effective Date; (b) other than in performance of this SOW; (c) that are generally applicable to PrimeStage's products and services and are not unique to the business of Customer or the SOW; or (d) that are improvements to PrimeStage software or PrimeStage's internal processes, provided that such improvements or use thereof do not infringe on Customer's proprietary rights. PrimeStage Materials may be included in, or necessary for Customer to use the Work Product but are excluded from Customer's ownership rights set forth in Section 8.1. PrimeStage hereby grants to Customer a worldwide, perpetual, royalty-free license to use PrimeStage Materials solely as necessary for use as part of the Work Product. No other grants of licenses or rights to Customer will be implied from the provisions stated in this SOW. Customer shall not obliterate or remove and will reproduce PrimeStage's intellectual property notices contained in the PrimeStage Materials. Customer shall not reverse engineer, decompile, or otherwise attempt to derive source code from any portions of the Work Product. PrimeStage is not being engaged to perform any investigation of third party intellectual property rights including any searches of patents, copyrights, or trademarks related to the Work Product.

8.3. Open Source Materials Exclusion. Open source software is software provided under a license approved by the Open Source Initiative or similar open source or freeware license ("OSS"). Unless otherwise agreed in writing in an SOW (or subsequently agreed to in writing by the parties), OSS components governed by Artistic License (all versions), Apache License (all versions), Boost Software License, BSD, Common Development and Distribution License (CDDL), Common Public License (CPL) or IBM, Eclipse Public License (EPL), FLTK License PSA, LGPL 2.1, MIT, Mozilla (MPL) (all versions), Open LDAP License, OpenSSL, PHP License, Public Domain, Python Software Foundation License, Ruby, and zlib/libpng License, may be included in, or necessary for Customer to use the Work Product but are excluded from Customer's ownership rights. PrimeStage may (a) obtain such OSS on Customer's behalf, (b) incorporate it into the Work Product, and (c) submit back to open source libraries any improvements made to the OSS during the course of performing the Services, to the extent such submissions do not violate the confidentiality obligations set forth herein.

8.4. Third Party Materials Exclusion. Materials (including tools that are used to deliver the Services) that are not owned or created by PrimeStage (other than Open Source Software) ("Third Party Materials") may be included in, or necessary for Customer to use the Work Product, but are excluded from Customer's ownership rights. Customer will be solely responsible for obtaining necessary licenses to the Third Party Materials and liable for their use.

8.5. Reservation of Rights. PrimeStage reserves all rights not expressly granted to Customer in these T&C's. Except as expressly stated, nothing herein shall be construed to (a) directly or indirectly grant to a receiving party any title to or ownership of a providing party's intellectual property rights in services or materials furnished by such providing party hereunder, or (b) preclude such providing party from developing, marketing, using, licensing, modifying or otherwise freely exploiting services or materials that are similar to or related to the Services or materials provided hereunder.

8.6. Customer's Underlying Rights. Customer represents and warrants to PrimeStage that (a) Customer owns or controls all rights in and to all Customer information and materials provided by or on behalf of Customer to PrimeStage pursuant to the SOW, including without limitation all rights to exploit all such Customer information and materials worldwide in all media and languages in perpetuity without encumbrance or restriction, and (b) Customer grants to PrimeStage a nonexclusive, nontransferable, worldwide paid-up license to make, use, modify, reproduce, and prepare derivative works of Customer information and materials, solely for the purpose of performing Services, with no right to grant sublicenses.

8.7. Feedback License. The Parties agree that any feedback or suggestions ("Feedback") (if any) given hereunder is voluntary. Each party is free to use, disclose, reproduce, license or otherwise distribute the Feedback relating to its own products and services, without any obligations or restrictions of any kind, including intellectual property rights.

9. BUSINESS HOURS

Services shall be performed by PrimeStage from 9:00 A.M. until 5:00 P.M. in the local time zone where the Services are being performed by PrimeStage, Monday through Friday excluding local statutory holidays (for example, within the State of California for PrimeStage's US employees), and any additional holidays that PrimeStage grants to its employees, a list of which can be provided by PrimeStage to Customer prior to the commencement of the Services Period.

10. LIMITATIONS OF LIABILITY

PRIMESTAGE'S TOTAL LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER, ARISING OUT OF THIS SOW OR SERVICES PROVIDED HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY PRIMESTAGE'S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE PRICE PAID TO PRIMESTAGE FOR THE SERVICES RENDERED HEREUNDER. EXCEPT WITH RESPECT TO CLAIMS REGARDING VIOLATION OF PRIMESTAGE'S INTELLECTUAL PROPERTY RIGHTS, NEITHER CUSTOMER NOR PRIMESTAGE SHALL HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF.

11. CONFIDENTIAL INFORMATION

"Confidential Information" means any information that is marked "confidential" or "proprietary" or any other similar term or in relation to which its confidentiality should by its nature be inferred. Confidential Information does not include information that is (a) rightfully in the receiving party's possession without prior obligation of confidentiality from the disclosing party; (b) a matter of public knowledge (or becomes a matter of public knowledge other than through breach of confidentiality by the other party); (c) rightfully furnished to the receiving party by a third party without confidentiality restriction; or (d) independently developed by the receiving party without reference to the disclosing party's Confidential Information. Each party shall (i) use Confidential Information of the other party only for the purposes of exercising rights or performing obligations in connection with this T&C's or any order/SOW hereunder; and (ii) protect from disclosure to any third parties any Confidential Information disclosed by the other party for a period commencing upon the date of disclosure until three (3) years thereafter, except with respect to Customer data, which shall remain Confidential Information until one of the exceptions stated in the above definition of Confidential Information applies. Notwithstanding the foregoing, either party may disclose Confidential Information to an Affiliate for the purpose of fulfilling its obligations or exercising its rights hereunder as long as such Affiliate complies with the foregoing and/or if required by law or regulatory authorities provided the receiving party has given the disclosing party prompt notice.

12. MERCHANDISE

"Merchandise" is any material goods sold to the Customer by PrimeStage. Merchandise is subject the the Payment Terms (defined herein).

12.1 CANCELLATION Unless the cancellation is due to a default by PrimeStage, once an order is placed with and accepted by PrimeStage, the order cannot be cancelled, unless PrimeStage consents in writing. If an order is cancelled, Customer shall reimburse PrimeStage for any cost it incurs as a result of such cancellation, including but not limited to cancellation or restocking fees.

12.2 RETURNS Merchandise is not returnable without the written consent of PrimeStage. Requests for permission to return must be made within thirty days after receipt of shipment. Only current items in their original cartons standard package quantities are subject to return. All unauthorized returns will be sent back to Customer at Customer's expense. Return shipments must be pre-paid and shipped in accordance with the instructions set forth by PrimeStage. Credit will be issued, less any transportation charges and service charges, to cover handling, inspection, counting, repacking, etc.

12.3 TAXES In addition to any price specified herein, Customer shall pay the gross amount of any present or future sales, use, excise, value-added or other similar tax applicable to the price, sale, or delivery of any product or services furnished hereunder, or to their use by PrimeStage or Customer, or Customer shall furnish PrimeStage with a tax exemption certificate acceptable to the taxing authorities.

13. GENERAL

The applicable SOW is governed by the laws of California and each Party hereby expressly consents to the personal jurisdiction of either the California courts or the United States District Courts located in the State of California and agrees that any action relating to or arising out of the T&C's shall be instituted and prosecuted only in the Superior Court of the County of San Bernardino or the United States District Court for the Southern District of California.