P1ston Master Services Agreement
Last updated May 21, 2024


This Master Services Agreement (“MSA”) is by and between P1ston, Inc., a Delaware corporation (“We,” “Us,” “Our,” or “P1ston”) and You, the entity identified on an SOW Order Form (“You” or “Your” or “Yours” or “Customer”). Together, the MSA and the SOW Order Form or SOW Order Forms (herein “SOW”), constitute the “Agreement” between You, the party receiving the professional services, and Us, pursuant to a SOW which both You have executed, and We have accepted. For purposes of the Agreement, “Professional Services” means project-oriented, non-recurring work, specifically done to support Your implementation, unique needs, and requests. Professional Services include, but are not limited to, such things as project management, implementation, setup and configuration, customization(s), integration(s), customized reporting, training, and quality assurance work.

1. Introduction. This MSA specifies the terms and conditions under which P1ston shall perform the work outlined in a SOW (the “Deliverables”) in consideration for Customer’s payment of the fees described on the SOW. Each party shall commit the resources as described in the SOW and shall use commercially reasonable efforts to meet the specific time frames agreed upon.

2. The Engagement. The Deliverables for an Engagement (the “Engagement”) are defined in a SOW. Unless otherwise mutually agreed by the parties, this Engagement will be performed off-site (remote work) in cooperation with Your designated staff members. The Engagement start date is defined as the first day of activities performed during the Engagement (the “Engagement Start Date”). P1ston will attempt to complete the Deliverables within the timeframe defined.

3. Schedule. The Deliverables shall be performed in accordance with a mutually agreed upon schedule. Unless otherwise agreed in writing, P1ston will make its project resources available to perform the Deliverables during P1ston’s normal business hours defined as Monday – Friday, 8:00 am to 7:00 pm ET. Projects are scheduled based upon availability of qualified P1ston resources.

Date(s) scheduled shall be agreed upon at least 5 calendar days prior to the requested date if requested date should be a weekday (Monday – Friday) and 10 calendar days prior to requested date(s) for all other requests.

4. Personnel Roles. P1ston resources that will be assigned to the project shall include a professional to lead the project (the “Project Manager” or “PM”) and/or Project Consultant(s) with access to other development and consulting resources on an as-needed basis (“Project Resources”). The Project Manager will conduct project planning and oversight activities. Project Consultants will perform the Deliverable activities, leveraging such Project Resources as required. With Customer’s approval, P1ston may also involve a “consultant-in-training,” free of charge, for observation or training purposes..

5. Project Assumptions.

5.1 Customer agrees to have adequate hardware and software installed for the P1ston software to operate as may be further described on the SOW.

5.2 Customer warrants that its existing infrastructure and hardware configuration is sufficient to support their current environment.

5.3 Appropriate network access to systems will be required. In some cases, this may require Customer to grant access through internal firewalls.

5.4 Any verbal commitment from a P1ston representative is not inclusive in an SOW unless specifically outlined therein.

5.5 While our estimates take into consideration the level of adaption that We understand will be required for the project, Customer and P1ston agree that one of the project goals is to implement the standard software using settings within the software.

6. Customer Obligations.

6.1 Customer will provide IT support, as necessary, to facilitate the integration of P1ston to customer’s system(s) as may be required to complete this Engagement.

6.2 Commit a technical resource, as may be needed, to provide P1ston with the assistance required to complete the Deliverables.

6.3 Provide project team members with suitable business expertise, technical expertise, and decision-making authority to ensure efficient project progress.

6.4 Customer acknowledges that it has obtained all required equipment, software, and licenses required for this project.

6.5 Customer Project Manager has met with other department managers to discuss the use of P1ston for configuration and training purposes, as necessary.

6.6 Customer will have resources available to discuss and assist implementation of configuration, as necessary.

6.7 Customer will provide resources to perform User Acceptance Testing (UAT), as necessary.

7. Timely Completion of Services. Timely completion of the Deliverables within the cost estimate provided on a SOW is contingent on the readiness and availability of (1) Customer staff, when and as needed, throughout all phases of the project, and (2) the software, hardware, and connectivity required for the development and/or deployment of the developed software.

If lack of access to Customer staff or the absence of any necessary software, hardware, or connectivity delays the project, or if Customer delays or reschedules the engagement, the project will be extended by the timeframe equivalent to the schedule delay. Except in the case of force majeure, if Customer reschedules the Deliverables upon less than five business days’ notice, P1ston will retain the right to charge a rescheduling fee (the “Rescheduling Fee”) equal to the lesser of fifty percent of the fees that would have been paid to P1ston for the Deliverables (as specified in the SOW) or 40 hours (at the rates specified in the SOW). In addition, Customer shall reimburse P1ston for any out-of-pocket expenses, if any, actually incurred because of the delay, including, without limitation, any non-refundable portion of travel-related expenditures. The foregoing notwithstanding, P1ston will use commercially reasonable efforts to reassign the resource(s) originally scheduled to work for Customer, and if and to the extent P1ston succeeds in doing so, will not charge Customer a Rescheduling Fee.

8. Resource Assignment. Upon execution of this Agreement the parties shall create a timeline based upon Customer’s requirements and the availability of P1ston resources. At such time P1ston will assign a PM.

Customer understands and accepts that P1ston may augment its professional services staff with qualified consultants provided by a P1ston business partner or expert subcontractors.

9. Fees. P1ston will provide the services described on a SOW on a time and materials basis at the rates set forth in the SOW. Cost estimates set forth in a SOW are prepared in good faith for Customer’s planning and budgeting purposes based upon the information available to P1ston as of the date the SOW was prepared. Changed assumptions or circumstances, changes in the objectives or scope of the project, and/or new information acquired during the Engagement may require additional effort on the part of P1ston. If Customer or P1ston become aware of circumstances that are likely to cause the fees detailed in a SOW to be exceeded, the change order process will be initiated, and the parties will negotiate a mutually acceptable change order modifying the description of the Deliverables and/or the associated cost estimates.

10. Payment. Customer hereby irrevocably agrees to pay for the services and any applicable agreed upon associated expenses, under the payment terms and as specified on a SOW, and if applicable, expenses related to travel, hourly time equating to one-half of the travel time at the standard billable rate, and expense reimbursement for meals at the standard daily per diem rates.

Unless otherwise agreed in writing, Deliverables performed during the Engagement shall be invoiced monthly. Invoices shall be considered due and payable upon receipt and shall be considered overdue 30 days from the date of our invoice. Any amounts payable by Customer that remain unpaid shall be subject to a late charge equal to 1.5% of the invoice amount per month from the due date until such amount is paid, or the maximum rate permitted by law if less.

All applicable state and local taxes, shipping, and handling charges, and out of pocket expenses shall be billed as separate line items.

We will provide payment options to You with our invoices to facilitate payment to Us. Payment options include ACH (preferred), Wire, and by check.

11. Warranty. Any customized code or other intellectual property (the “Custom Code”) included in the Deliverables will be supported by P1ston for 90 days after Deliverable acceptance. As applicable, P1ston will provide a demonstration of the Custom Code prior to the conclusion of the Engagement. The warranty covers correction of software defects formally reported to P1ston Support during the warranty period. It does not cover enhancements, requirements changes, or modifications to support P1ston version upgrades. After the 90 day warranty period, the Custom Code is not supported by P1ston and is not subject to any maintenance or support plan covering the P1ston products. Maintenance and support for the Custom Code, including, without limitation, fixes, modifications, updates, and upgrades, may be obtained from P1ston on a time and materials basis. Customer understands that the Custom Code may have to be modified or upgraded if the P1ston product is modified or upgraded. At Customer’s request, P1ston will provide the services necessary to upgrade the Custom Code on a time and materials basis.

12. Ownership. The term “Work” means any materials, including, without limitation, any computer programs, whether in the source code or object code version, together with any algorithm, flowchart, schematic, diagram, specification, annotation or other documentation connected therewith, and/or any work of authorship, invention, innovation, idea, concept, design, process, analysis, technique or know-how, created or developed by P1ston, either individually or jointly, in connection with the performance of Deliverables pursuant to this Agreement.

The term “Other Intellectual Property” means any computer software code or programs, whether in source code or object code version, together with any algorithm, flowchart, schematic, diagram, specification, annotation or other documentation connected therewith, and/or any routines, libraries, tools, methodologies, work of authorship, invention, innovation, idea, concept, design, process, analysis, technique, or know-how, acquired or developed by P1ston prior to or independently of its performance of Deliverables pursuant to this Agreement.

The term “Deliverables” means the deliverables identified in a SOW.

The entire right, title and interest in and to the Work and the Other Intellectual Property, including without limitation, all copyrights, patent rights, trade secrets and all other worldwide intellectual property rights therein, shall be and remain in P1ston.

The Deliverables, and all Work and Other Intellectual Property incorporated therein, are licensed to Customer as part of the underlying P1ston software, subject to the terms and conditions of the existing license between P1ston and Customer covering such software.

13. Confidentiality. Each party may disclose to the other party confidential, proprietary and/or trade secret business or technical information in connection with the performance of its obligations under this Agreement (“Confidential Information”). Each party agrees that it will not use or disclose the Confidential Information of the other party other than as necessary in the performance of its obligations under this Agreement without the prior written consent of the other party. Each party shall exercise a commercially reasonable level of care to safeguard the Confidential Information of the other party against improper disclosure or use.

14. DISCLAIMER OF WARRANTIES. THE DELIVERABLES ARE DELIVERED TO CUSTOMER ON AN “AS IS” BASIS WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. P1ston HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, IN FACT, ARISING BY OPERATION OF LAW OR OTHERWISE, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT AND DESIGNATED AS REPRESENTATIONS OR WARRANTIES, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

15. Limitations on Liability. In no event shall P1ston be liable for any indirect, special, incidental, consequential, or exemplary damages, including without limitation, damages for lost profits or revenues, loss of use of any software or hardware, loss of data, or interruption of business, whether claimed in contract, tort, or otherwise, and arising out of or in connection the Agreement, even if P1ston is informed of the possibility of such loss or damage. The cumulative liability of P1ston for all claims relating to or arising under the Agreement, whether in contract, tort, or otherwise, shall not exceed the total amount of all fees paid by Customer to P1ston for services under the Agreement.

16. No Hire/Solicitation. Customer acknowledges that the services to be performed under the Agreement require highly trained individuals and that P1ston expends significant resources to properly train and educate such individuals. Customer will not solicit or offer employment to any P1ston employee who performs services under the Agreement during the term of the Agreement and for a period of six months thereafter. Customer agrees to pay P1ston the amount of $50,000.00 if Customer either directly or indirectly hires any such individual during the term of the Agreement and or for a period of six months thereafter. Customer acknowledges that this amount represents fair and reasonable compensation to P1ston for the loss of such individual.

17. Termination. Either party may terminate the Agreement upon thirty days written notice if the other party breaches the Agreement unless the breaching party cures the breach within such thirty-day period. The foregoing notwithstanding, P1ston may stop work and terminate the Agreement immediately upon written notice if Customer fails to make any payment when and as due to P1ston. In addition, if P1ston initiates the change order process pursuant to a SOW, and the parties are unable to agree upon a mutually acceptable change order, then either party may terminate the Agreement by giving the other party written notice. The right to terminate the Agreement shall be in addition to any other rights the parties may have at law or in equity. Upon the termination of the Agreement for any reason whatsoever, Customer shall pay P1ston for Deliverables performed and reimbursable expenses incurred prior to the date of termination at the rates set forth in a SOW. All payment obligations described in the Payment paragraph above as well as all terms and conditions described in the Ownership, Confidentiality, DISCLAIMER OF WARRANTIES, Limitations on Liability, and No Hire/Solicitation paragraphs above, shall survive the termination of the Agreement.

18. Disputes, Arbitration, Governing Law.

18.1 Binding Arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be submitted to the American Arbitration Association (“AAA”) for mandatory binding arbitration in front of a single arbitrator (“Arbitrator”) chosen in accordance with the AAA Commercial Arbitration Rules and Mediation Procedures (using then in place AAA Expedited Procedures) (“Rules”). Unless provided otherwise herein, Arbitrator may not award non-monetary or equitable relief of any sort. Arbitrator shall have no power to award damages inconsistent with this Agreement, and the parties expressly waive their right to obtain such damages in arbitration. All aspects of the arbitration shall be treated as confidential. Neither the parties nor Arbitrator may disclose the existence, content or results of the arbitration, except as necessary to enforce the results of the arbitration or to comply with legal or regulatory requirements. Before making any such disclosure, a party shall give written notice to the other party and shall afford such party a reasonable opportunity to protect its interests. Arbitrator shall render its award in writing and will include the findings of fact and conclusions of law upon which the award is based. The result of the arbitration shall bind the parties and judgment on the Arbitrator’s award may be entered in any court having jurisdiction. In addition to any and all other relief to which a party may be entitled, Arbitrator shall award reasonable attorneys’ fees and costs, including reasonable expert witness fees and costs (if applicable), to the prevailing party (should there be one) in any such arbitration. In the event of conflict between these Terms of Services and the Rules, these Terms of Services shall be first in precedence.

18.2 Waiver of Jury Trial; Individual Basis; Equitable Relief. THE PARTIES SURRENDER AND WAIVE THE RIGHT TO SUBMIT ANY DISPUTE TO A COURT OR JURY, OR TO APPEAL TO A HIGHER COURT. The Parties agree to arbitration on an individual basis. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). Notwithstanding the foregoing, nothing in this Agreement shall prohibit either party (prior to the commencement of arbitration) from seeking and obtaining from a court of competent jurisdiction (without necessity of posting bond) injunctive relief in order to preserve the status quo and/or avoid irreparable harm which may be inadequately compensable by monetary damages, for example in respect of a threatened breach of the confidentiality or license-restriction provisions hereof. Nothing in this “Disputes, Arbitration, Governing Law” section shall be construed to prohibit P1ston from using an attorney or collections agency to collect unpaid fees.

18.3 Where Held; Language; Governing Law. The place of arbitration shall be Albany (Albany County), NY, USA, and the proceedings shall be conducted in the English language. The Agreement shall be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws and Arbitrator shall follow the law and judicial precedents that a United States District Judge sitting in the Northern District of New York would apply to the dispute.

19. General Provisions.

19.1 Notice. Except for Legal Notices: (a) We may provide You notice via the Services or via email to Your contact person or to the email address on your latest Order Form, (b) You may provide us notice to the P1ston contact email address on the Order Form or to the contact email address published in the Services, as updated from time to time, or (c) either party may provide notice via an electronic messaging platform (the “Messaging Platform”) in the event that both parties have mutually agreed, in writing, to use the Messaging Platform. A notice is deemed received on the first business day after posting or sending..

Legal Notices must be in writing. Legal Notices are deemed received only upon actual delivery (or refusal) and shall be sent (if to You): to the address set forth on Your most recent Order Form (or such address as You have updated in writing), and (if to P1ston) to P1ston, Inc., Attn: CEO, 414 Union St, Schenectady, NY 12305. “Legal Notices” means any notice of termination (except if the recipient confirms receipt of the email by a human-generated response), notices alleging breach hereof, or notices pertaining to an indemnifiable claim.

Notwithstanding anything in this Agreement to the contrary, You or We can use email as a method of sending Legal Notices. To send a Legal Notice by email, the sending party will include “LEGAL NOTICE” in the email subject field and direct the Legal Notice email to the other party’s email address appearing in the most recent Order Form.

19.2 Authority. Each party warrants and represents that the individual who signs this document on behalf of that party has the requisite authority to legally bind that party, and in the case of Customer, has the authority to approve payment of forthcoming invoices for services performed by P1ston pursuant to this Agreement.

19.3 Relationship of the Parties; No Third-Party Beneficiaries; Waiver. The parties are independent contractors to each other. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties, and neither party has the right to bind the other party to any agreement, understanding, or contract. There are no third-party beneficiaries to this Agreement. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. A waiver of any default is not a waiver of any subsequent default.

19.4 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld), except that a party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

19.5 Entire Agreement; No Reliance; Order of Precedence. The Agreement (as defined above), constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. You acknowledge that You have not relied on any oral promises or any other terms, representations, commitments, understandings, or matters, other than those expressly set forth in writing in the Agreement. No modification, amendment, or waiver of any provision of the Agreement shall be effective against either party unless in writing and received and or signed by either party. The order of precedence in the event of any inconsistency among different documents comprising the Agreement is as follows (from highest to lowest): (a) any provision of an SOW expressly stating that is intended to modify or supersede a provision of the MSA; (b) this MSA; (c) any online policy. Other executed SOWs, no POs, preprinted forms, order documentation, or any other forms provided by You (“Forms”) shall be deemed to vary, add to, or delete any provisions hereof, and all such unilateral terms of Yours shall be null and void, even if we execute the Forms.

19.6 Force Majeure. Any delay or failure of performance of either party to this Agreement shall not constitute a breach or default of the Agreement, or give rise to any claims for damages, if and to the extent that such delay or failure is caused by an occurrence beyond the control of the party affected, including, but not limited to, acts of governmental authorities, acts of God, the discovery of materially different site conditions, wars, riots, rebellions, sabotage, fire, explosions, accidents, floods, strikes, lockouts, or changes in laws, regulations, or ordinances. In the event that a party intends to invoke this force majeure provision, that party shall provide prompt notice to the other party as soon as possible after the occurrence of the event giving rise to the claim of force majeure. If the performance of the Deliverables is delayed by an event of force majeure, the schedule shall be extended by an amount of time equal to the delay. Customer shall have no obligation to pay a Rescheduling Fee if the performance of the Deliverables is delayed by an event of force majeure, however, Customer shall reimburse P1ston for any actual out-of-pocket expenses incurred by P1ston as a result of the delay, including, without limitation, any non-refundable travel-related expenditures.