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SITEPRO TERMS AND CONDITIONS AGREEMENT

PLEASE READ THIS AGREEMENT CAREFULLY. BY EXECUTING AN APPLICABLE SITEPRO ORDER FOR GOODS, SERVICES AND/OR SOFTWARE, OR BY ACCESSING OR LOGGING ONTO A SITEPRO SYSTEM, OR BY INSTALLING OR OTHERWISE ACCESSING OR USING SITEPRO SOFTWARE, CUSTOMER AND/OR USER OF THE SITEPRO SYSTEM, GOODS OR SOFTWARE AGREES TO THIS AGREEMENT.

IN CONSIDERATION OF CUSTOMER OR USER’S ABILITY TO ACCESS AND USE SITEPRO’S SERVICES, GOODS, SOFTWARE AND/OR SYSTEM, CUSTOMER AND/OR USER AGREE TO THIS AGREEMENT.

This Agreement is effective as of the earlier of the date that Customer or User (1) executes an applicable Order or (2) accesses, uses or installs SitePro’s System or Software (the “Effective Date”).  Each party represents and warrants that it has read and understands all of the provisions of this Agreement. If Customer or User is entering into this Agreement on behalf of another legal entity, Customer or User represents and warrants that it has authority to bind such entity to this Agreement, in which case the term “Customer” or “User” shall refer to such entity.

This Agreement together with any Order constitute the entire agreement between the parties related to the SitePro Goods, Services, Documentation, Software and System, and supersede all prior or contemporaneous understandings, agreements, negotiation, representations and warranties, and communications, both written and oral.

SitePro provides an automation solution (the “System”) which consists of Goods (as defined below) installed on Customer’s property and accessed remotely and/or Software (as defined below) hosted by SitePro and/or installed on customers’ computers, the Software being capable of being accessed and controlled remotely as provided in this Agreement. SitePro also provides professional Services (as defined below) related to implementation, installation, and customization of the System, including Goods, Software and Documentation (as defined below). The parties have agreed that SitePro will provide the System (including Software and Documentation) to Customer, as well as Services as the parties may agree, now and pursuant to Orders executed between Customer and SitePro. In addition, Users may access the System (including Documentation and Software) via their relationship with Customer or otherwise. Therefore, in consideration for the commitments set forth below, the adequacy of which consideration the parties hereby acknowledge, the parties agree as follows.

1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.

“Agreement” means this agreement, including all Orders executed in connection herewith and any other document incorporated by reference herein or into any Order.

“Customer” means the business or other legal entity that is the intended recipient of SitePro’s System, Goods, Services, Software and/or Documentation pursuant to an Order or otherwise, and causes a duly authorized representative to accept this Agreement on its behalf.

“Customer Data” means electronic data and information submitted to SitePro by or on behalf of the Customer. “Documentation” means user manuals, technical manuals, training materials, emails relating to the System or Software, screenshots (or printouts or other images) of any portion of the System or Software, and any other materials provided by SitePro, in printed, electronic or other form, that describe or constitute the installation, operation, use, or technical specifications of the Software or Services.

“Goods” means all hardware goods that are sold, licensed, or leased to Customer by SitePro.

“Order” means an ordering document, proposal, or other form, in print or electronic format, that specifies the Goods, Services or Software to be provided under this Agreement, which is entered into between Customer and SitePro, including any addenda and supplements thereto.

“Services” means the installation of Goods, the hosting of Software or the System, and the maintenance, trouble-shooting and support of the Software or System.

“SitePro” means SitePro, Inc.

“Software” means the proprietary software solutions of SitePro and its licensors (including source code that is compiled or uncompiled, displays, screens, tabs, HMI, databases, database schema, configurations, settings, control narratives, scaling, equations, reports and other information from, displayed and used by the SitePro System) that are made available to Customer as a part of the System.

“User” means an individual who is accesses the SitePro System or Software. Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business. In addition, Users include any entity or person who accesses or installs the SitePro System or Software.

2. SERVICES

2.1 Service Fees. SitePro shall provide certain Services to Customer in accordance with the applicable Order and this Agreement. In consideration of the Services provided by SitePro, Customer shall pay the fees for the Services in accordance with the applicable Order and this Agreement.  For avoidance of doubt, any labor estimates and performance dates specified in the applicable Order are estimates only and are subject to the actual scope of the Services. Customer shall be billed by the SitePro on the basis of the actual scope of the Services. To the extent the Services include providing use of and access to SitePro’s System, Software or Documentation, Customer and User agree to the limited use and restrictions set forth below as applicable to Services, as well as Software and Documentation.

2.2 Availability. To the extent Services pursuant to an Order include the provision of SitePro Software or Documentation online or otherwise as a Software-as-a-Service (SaaS) offering, SitePro will use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which SitePro shall give advance electronic notice); and (b) any unavailability caused by circumstances beyond SitePro’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving SitePro employees), Internet service provider failure or delay, or denial of service attack. Customer acknowledges that 24×7 availability of such online Services is only a goal and SitePro does not represent or guarantee that such goal will be achieved at all times.

2.3 Usage Limits. In addition to the use restrictions for Software as set forth below, Services are subject to usage limits specified in Orders. Such usage limits may include, but are not limited to, the number of Customer locations for which the Services can be accessed or used, and/or the maximum number of Users that can access and use the Services, the number of automation points measured and monitored, or any other constraint as agreed to by both parties and documented on the applicable Order. If Customer’s use of the Services exceeds any of the usage limitations set forth in the Order, then upon notice, SitePro may invoice Customer for such excess usage and Customer agrees to pay the additional fees for such excess usage. Each User must have a unique user identification and password, which may not be shared.

2.4 Access to Services and Software. Customer shall not access or attempt to access the Services or Software by any means other than the web interface, applications, mobile application(s), or any SitePro branded devices provided by SitePro or attempt to circumvent or disable any access or use restrictions or security mechanisms put in place by SitePro or its licensors. Unless otherwise specified in an Order, Customer is responsible for obtaining the data network access necessary to use the Services or Software. Mobile network data and messaging rates and fees may apply if you access or use the Services or Software from a wireless device. Unless otherwise specified in an Order, Customer is responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services or Software and any updates thereto; provided that, SitePro may recommend compatible hardware or devices necessary to use the Services or Software. SitePro does not guarantee that the Services or Software, or any portion thereof, will function on any particular hardware or devices. SitePro’s competitors are prohibited from accessing the Services, except with SitePro’s prior written consent, and Customer agrees that it will not allow access to any SitePro Services, Software or Documentation by any SitePro competitor. In addition, the Services, Software or Documentation may not be accessed by Customer, User or any associated entity or person for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose.

2.5 Safe Work Environment. Customer acknowledges that in the provision of Services, SitePro employees, agents and other related individuals may need to access Customer’s facilities and premises. Customer shall provide SitePro employees, agents, or contractors with a safe working environment while on Customer premises that is in compliance with all applicable health and safety laws. SitePro will ensure that while SitePro employees, agents, or contractors are on Customer premises, all proper and legal health and safety precautions are taken while performing the Services. SitePro warrants that while SitePro employees, agents, or contractors are on Customer premises, they will comply with all reasonable workplace policies of Customer, as notified by Customer to SitePro.

2.6 Revisions. SitePro may revise the features and functions of the Services at any time, provided no such revision materially reduces features or functionality provided pursuant to an outstanding Order.

3. GOODS

3.1 Price. As specified in the applicable Order, Customer shall purchase the Goods from SitePro at the prices set forth in the SitePro’s quotation or proposal referenced in the Order; provided, however, if SitePro’s prices for such Goods should increase before delivery of the Goods to a carrier for shipment to Customer, then this Agreement shall be construed as if the increased prices were originally inserted herein, and Customer shall be billed by SitePro on the basis of such increased prices.

3.2 Security Interest. As collateral security for the payment of the purchase price of the Goods and for so long as the payment of such purchase price remains outstanding, Customer hereby grants to SitePro a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Goods, wherever located, and whether now existing or here after arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code.

3.3 Shipment. SitePro shall deliver the Goods within the time identified in the Order or in lieu thereof a reasonable time after the receipt of the Order using SitePro’s standard methods for packaging and shipping such Goods. Delivery shall be made FOB SitePro’s Lubbock, Texas facility or such other location as may be designated in the Order. SitePro may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the Goods shipped whether such shipment is in whole or partial fulfillment of the Order. Title and risk of loss shall pass to Customer upon delivery of the Goods at the designated delivery point (the “Delivery Point”).  SitePro shall not be liable for any delays, loss or damage in transit.

3.4 Acceptance. Customer shall take delivery of the Goods upon the date of SitePro’s written notice that the Goods have been delivered to the Delivery Point. Customer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point unless specified otherwise in an Order. If for any reason Customer fails to accept delivery of any of the Goods on the date fixed pursuant to SitePro’s notice that the Goods have been delivered at the Delivery Point, or if SitePro is unable to deliver the Goods at the Delivery Point on such date because Customer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Customer; (ii) the Goods shall be deemed to have been delivered; and (iii) SitePro, at its option, may store the Goods until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

3.5 Limited Liability. Any liability of SitePro for non‐delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered. SitePro shall not be liable for any non‐delivery of Goods (even if caused by SitePro’s negligence) unless Customer gives written notice to SitePro of the non‐delivery within ten (10) days of the date when the Goods would in the ordinary course of events have been received. The quantity of any installment of Goods as recorded by SitePro on dispatch from SitePro’s designated shipping point is conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence proving the contrary.

3.6 Inspection. Customer shall inspect the Goods within ten (10) days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Goods unless it notifies SitePro in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by SitePro. “Nonconforming Goods” means only the following: (i) item shipped is different than identified in Customer’s purchase order; or (ii) item’s label or packaging incorrectly identifies its contents. If Customer timely notifies SitePro of any Nonconforming Goods, SitePro shall, in its sole discretion, (a) replace such Nonconforming Goods with conforming Goods, or (b) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to SitePro’s Lubbock, Texas facility unless SitePro instructs Customer to direct shipment to another location. If SitePro exercises its option to replace Nonconforming Goods, SitePro shall, after receiving Customer’s shipment of Nonconforming Goods, ship to Customer, at Customer’s expense and risk of loss, the replaced Goods to the Delivery Point. Customer acknowledges and agrees that the remedies set forth in this Section 3.6 are Customer’s exclusive remedies for the delivery of Nonconforming Goods. Except as set forth in the Order or under this Section 3.6, all sales of Goods to Customer are made on a one‐way basis and Customer has no right to return Goods purchased under this Agreement to SitePro.

3.7. Limited Use. Customer agrees that it shall not, directly or indirectly, reverse engineer, use or access the Goods for purposes of (1) developing any goods, hardware or software that are not sold or licensed by SitePro, (2) competitive analysis, or (3) the development, improvement, benchmarking or any other purpose related to any other software product, hardware, or service not offered, sold or licensed by SitePro.

4. SOFTWARE AND DOCUMENTATION

4.1. SitePro shall provide certain Software (and Documentation) to Customer pursuant to license or subscription agreements in accordance with the applicable Order and this Agreement. Users may also have access to Software and Documentation in accordance with an applicable Order and this Agreement, or through access to SitePro’s Software (including remote access, online access, Software as a Service access, or access to local installed versions of SItePro’s Software). All Customers and Users – regardless of how SitePro Software and Documentation is accessed or used, and regardless of whether such access is authorized or not – agree to be bound by all terms and conditions of this Agreement.

4.2 SITEPRO PROVIDES THE SOFTWARE AND DOCUMENTATION TO YOU (HEREIN, “YOU” REFERS TO BOTH CUSTOMER AND/OR USER) SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION YOU ACCEPT AND COMPLY WITH THEM. BY CLICKING THE “ACCEPT” BUTTON, CHECKING THE “ACCEPT” BOX ON THE ORDER FORM, OR OTHER MEANS PROVIDED FOR ACCEPTANCE YOU (A) ACCEPT THIS AGREEMENT AND AGREE TO BE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOURSELF, INCLUDING ANY RELATED CUSTOMER, AND BIND YOURSELF AND ANY RELATED CUSTOMER TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, SITEPRO WILL NOT AND DOES NOT LICENSE OR OTHERWISE PROVIDE THE SOFTWARE OR DOCUMENTATION TO YOU OR YOU IN ANY WAY TO ACCESS OR USE THE SOFTWARE OR DOCUMENTATION FOR ANY PURPOSE.

4.3 From time to time, SitePro may modify the Software by adding or removing features and functionalities without prior notice to You. Except as expressly provided in the Order, SitePro also may revise this Agreement from time to time in SitePro’s sole discretion, subject to applicable law. All future access and use of the Software or Documentation by YOU will be subject to the version of this Agreement in effect at the time of such access or use. If SitePro revises this Agreement, SitePro will post the revised version on its website. You will be free to decide whether or not to accept the revised version of this Agreement, but accepting the revised Agreement will be required for You to continue accessing or using the Software or Documentation. IF YOU DO NOT AGREE TO THE REVISED VERSION OF THIS AGREEMENT, YOU MUST TO TERMINATE ALL ACCESS OR USE OF THE SOFTWARE OR DOCUMENTATION.

4.4. Use of Software and Services.

(a) Subject to and conditioned upon Your payment of all fees owed to SitePro pursuant to an Order or subscription (or otherwise) and strict compliance by You with all terms and conditions set forth in this Agreement, SitePro hereby grants You a non-exclusive, non-transferable, nonsublicensable, limited license during the Term to access and use the Software and Documentation solely for the limited purpose set forth in the Order or, if not set forth in an Order, for the limited internal business purpose of a SitePro Customer, which limited internal business purpose specifically excludes the use restrictions set forth below.

(b) Use Restrictions. You shall not directly or indirectly:

(i) use (including make any copies of) the Software or Documentation beyond the scope of the limited rights set forth in Section 4.4(a);

(ii) provide any other person or entity, including any subcontractor, independent contractor, affiliate or service provider of Customer, access to or use of the Software or Documentation who are not authorized by SitePro or who accessing the Software or Documentation for any purpose other than as specified in Section 4.4(a);

(iii) copy the Software or Documentation, in whole or in part, or modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software Documentation or any part thereof;

(iv) combine the Software or Documentation or any part thereof with, or incorporate the Software or Documentation or any part thereof in, any other software, documentation or other works;

(v) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;

(vi) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof,

(viii) sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software or Documentation, or any features or functionality of the Software or Documentation, to any third party or person who has not been specified authorized by SitePro to access or use the Software or Documentation for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time- sharing, service bureau, software as a service, cloud or other technology or service;

(ix) use the Software or Documentation in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including: (1) power generation systems; (2) aircraft navigation or communication systems, air traffic control systems or any other transport management systems; (3) safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; and (4) military or aerospace applications, weapons systems or environments;

(x) use the Software or Documentation in violation of any law, regulation or rule;

(xi) reverse engineer, use or access the Software or Documentation for purposes of competitive analysis, or the development, improvement, benchmarking or any other purpose related to any other software product or service not offered, sold or licensed by SitePro;

(xii) participate in any action that results or may result in fraud or otherwise interfere in any way with use of the Software or SitePro System;

(xiii) use or exploit any errors in design, features which have not been documented, or “bugs” to gain access in any way that is not generally known and intentionally made available by SitePro, and You agree that You will promptly report to SitePro Your discovery of any such errors, features or bugs.

(xiv) attempt to harvest, copy or use any account information, pricing or any confidential or proprietary business information, SitePro Intellectual Property (as defined below) from the Software Service for any purpose;

(xv) collect or store personal information about any other individual on the Service, or otherwise stalk, repeatedly contact or harass another user;

(xvi) impersonate any other person, adopt a false identity, or misrepresent an identity or a relationship with any person or entity, including misrepresenting a relationship with SitePro or Customer, or attempt to deceive or defraud SitePro, for the purpose of allowing Users access or for any other purpose that is inconsistent with the limited purpose set forth in Section 4.4(a);

(xvii) manipulate the Software or Service so as to hide your identity or access the Software by using another person’s identity, creating a fake identify, changing headers, or otherwise modifying any other possible identifier, or masking Your actions or activity;

(xviii) post or upload any content that contains any viruses, cancel bots, Trojan horses, harmful code, or other computer programs or code designed to interrupt the Service, or the proper functioning of any software, hardware or equipment or materials used in connection with the Software or Service; or

(xiX) remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection or security features of the Software or Services.

4.5 Responsibility for Use. Customer is responsible and liable for all direct or indirect access to or uses of the Software, System or Documentation by any User associated with Customer. Specifically, and without limiting the generality of the foregoing, Customer is responsible and liable for all actions and failures to take required actions with respect to the Software, System or Documentation by any User associated with Customer, or to whom Customer provides direct or indirect access to the SitePro Software, System or Documentation.

4.6 Compliance. During the Term, SitePro may, in SitePro’s sole discretion, audit Customer’s use of the Software, System or Documentation to ensure Customer’s compliance with this Agreement. SitePro also may, in its sole discretion, audit Customer’s systems within 24 months after the end of the Term to ensure Customer has ceased use, or to ensure there has been no unauthored or unlicensed use, of the Software, System or Documentation and that Customer has removed the all copies from such systems as required hereunder. The Customer shall fully cooperate with SitePro’s personnel conducting such audits and provide all access requested by SitePro to records, systems, equipment, information and personnel, including machine IDs, serial numbers and related information.

4.7 Right to Immediate Termination Upon Violation of Use or Restriction. If SitePro reasonably believes that Customer or User has exceeded the scope of the licenses granted herein, or otherwise violated a restriction on use or access (set forth in the Article or elsewhere in this Agreement), SitePro may, in its sole discretion, terminate this Agreement and the licenses granted herein effectively immediately upon written notice to Customer. SitePro’s remedies set forth in this Section are cumulative and are in addition to, and not in lieu of, all other remedies SitPro may have at law or in equity, whether under this Agreement or otherwise.

4.8 Customer or User Competitive Work. Due to the fact that use and access to SitePro’s System, Software, Services, Goods and Documentation necessarily requires SitePro to provide access to SitePro’s Confidential Information and Intellectual Property, Customer and User agree that if Customer, User or any entity or person associated with or working on behalf of Customer or User develops, plans, works on or otherwise contributes to any hardware or software that is in any way competitive with or provides similar functionality as SitePro’s System, Software, Services, Goods or Documentation (herein, “Competitive Work”), Customer or User will (i) provide immediate written notice to SitePro of such Competitive Work, (ii) represent and warrant that no SitePro Confidential Information or Intellectual Property shall be used or disclosed in such Competitive Work and (iii) provide a description of all safeguards that Customer and/or User have put in place to prevent use or disclosure of SitePro Confidential Information or Intellectual Property shall be used in such Competitive Work. Upon receipt of such notice from Customer or User, SitePro may, in its sole discretion, terminate this Agreement and the licenses granted herein effectively immediately upon written notice to Customer. SitePro’s remedies set forth in this Section are cumulative and are in addition to, and not in lieu of, all other remedies SitPro may have at law or in equity, whether under this Agreement or otherwise.

4.9 License to Use Customer Data. Customer grants SitePro and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Customer Data to provide and ensure proper operation of the Services and Software in accordance with this Agreement. To be clear, such license only pertains to services being provided to Customer, this does not grant a license to host, copy, use, transmit, and/or display any Customer Data to any third-parties (other than the use of aggregate, anonymized data in accordance with Section 4.9). Subject to the limited licenses granted herein, SitePro acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data.

4.10 Collection and Use of Information. Notwithstanding anything in this Agreement to the contrary, SitePro shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services, Software and related systems and technologies (including, without limitation, information concerning Customer Data and data that is based on or derived therefrom, such as aggregate, anonymized data), and SitePro shall also have the right (during and after the term hereof) to use such information and data for any purpose, including, without limitation, to improve and enhance the Services and Software and for other development, diagnostic and corrective purposes in connection with the Services, Software and other SitePro offerings.

5. MAINTENANCE AND SUPPORT

5.1 Subject to Section 5.3, the license granted hereunder entitles Customer to the basic software maintenance and support services for the Software described from time to time on SitePro’s website located at www.sitepro.com for 90 days following the date set forth on the applicable Order; and thereafter, solely if Customer purchases additional support services

5.2 Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches and other error corrections (collectively, “Updates”) as SitePro makes generally available free of charge to other customers of the Software then entitled to maintenance and support services. SitePro may develop and provide Updates in its sole discretion, and Customer agrees that SitePro has no obligation to develop any Updates at all or for particular issues. Customer further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Customer acknowledges that SitePro may provide some or all Updates via download from a website designated by SitePro and that Customer’s receipt thereof will require an internet connection, which connection is Customer’s sole responsibility. SitePro has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that SitePro may issue as a separate or new product, and SitePro may determine whether any issuance qualifies as a new version, new release or Update in its sole discretion.

5.3 SitePro reserves the right to condition the provision of maintenance and support services, including all or any Updates, on Customer’s registration of the copy of Software for which support is requested. SitePro has no obligation to provide maintenance and support services, including Updates: (i) for any but the most current version or release of the Software; for any copy of Software for which all previously issued Updates have not been installed; if Customer is in breach under this Agreement; or (iv) for any Software that has been modified other than by SitePro, or that is being used with any hardware, software, configuration or operating system not specified in the Documentation or expressly authorized by SitePro in writing.

6. COLLECTION AND USE OF INFORMATION

6.1 Customer and each of its Authorized Users acknowledges that SitePro may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software, System or Documentation, including, but not limited to, information and about any devices or equipment on or through which the Software, Services or Documentation are accessed or used. Without limiting the generality of the foregoing, Customer acknowledges that Software contains or may contain in future versions automated reporting routines that will automatically identify and analyze certain aspects of use and performance, as well as the operator and operating environment, and among other things, transmit electronic reports to SitePro. SitePro will provide Customer, on request, with a description of these routines in the Software and Customer agrees not to disrupt or interfere with them without prior written authorization by SitePro. SitePro will be entitled to inspect the installation and configuration of the Software from time to time on reasonable notice.

6.2 Customer agrees that SitePro may use such information for any purpose, including, but not limited to, improving the performance of the Software or System or developing Updates, verifying Customer’s compliance with the terms of this Agreement and enforcing SitePro’s rights, including SitePro’s Intellectual Property Rights (as defined below).

7. ADDITIONAL CUSTOMER OBLIGATIONS

7.1 Customer Obligations. Customer shall: (i) cooperate with SitePro in all matters relating to the SitePro Software, Documentation Goods and Services and provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by SitePro, for the purposes of providing the SitePro Goods, Software and Services; (ii) respond promptly to any SitePro request to provide direction, information, designs, approvals, authorizations or decisions that are reasonably necessary for SitePro to provide the SitePro Goods, Software and Services in accordance with the requirements of this Agreement; (iii) provide such Customer Data as SitePro may reasonably request to provide the SitePro Goods, Software and Services in a timely manner and ensure that such Customer Data is complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the SitePro Goods, Software and Services before the date on which the SitePro Goods, Software and Services are to be provided.

7.2 Customer’s Acts or Omissions. If SitePro’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its Users, agents, subcontractors, consultants or employees, SitePro shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay

8. CONFIDENTIALITY

8.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by SitePro to Customer, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of SitePro includes all information relating to the Software, Documentation, Services and System, and the terms and conditions of all Orders (including pricing) whether or not marked or designated as confidential. Confidential Information of SItePro includes business and marketing plans, technology, and technical information (including, but not limited to, its source code (both in compiled and uncompiled format) setpoints, database schema, control narratives, scaling and other algorithms, hardware configurations of cameras and other hardware and Goods, register polling information, hardware mappings, input / output layouts, its HMI and other technical aspects and know-how relating to the Software, Documentation and System), product plans and designs, and business processes disclosed by such party and any other nonpublic, sensitive information the parties should reasonably consider a trade secret or otherwise confidential. However, Confidential Information does not include any information that: (a) is or becomes fully and generally known to the public without breach of any obligation owed to SitePro; (b) was fully known to Customer prior to its disclosure by SitePro without breach of any obligation owed to SitePro; (c) is fully received from a third-party without breach of any obligation owed to SitePro; or (d) is fully and independently developed by the Customer without reference to or use of the Confidential Information of SitePro.

8.2 Protection of Confidential Information. SitePro retains all ownership rights, title, and interest, including intellectual property rights, in and to its Confidential Information.  Customer will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). Customer will: (a) not use any Confidential Information of SitePro for any purpose outside the scope of this Agreement; and (b) except as otherwise authorized by SItePro in writing, limit access to Confidential Information of SitePro to those of its employees and contractors who need that access for purposes consistent with this Agreement and who are informed of and consent to the confidentiality provisions hereunder. Customer shall promptly notify SitePro of any misuse or misappropriation of Confidential Information that comes to Customer’s attention.

8.3 Compelled Disclosure. Customer may disclose Confidential Information of SitePro to the extent compelled by law to do so, provided Customer gives SitePro prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance.

8.4 Non-Solicit. During the course of this Agreement as well as during a period of one year following the termination of this Agreement, Customer shall not in any way, directly or indirectly, approach or entice away any employees of SitePro to terminate their employment agreement with SitePro or to enter into an agreement with Customer.

8.5 Injunction. Customer agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in this Article 9; (b) it would be difficult to determine the damages resulting from its breach of this Article 9, and such breach would cause irreparable harm to SitePro; and (iii) a grant of injunctive relief provides the best remedy for any such breach, without any requirement that SitePro prove actual damage or post a bond or other security. Customer waives any opposition to such injunctive relief or any right to such proof, bond, or other security. (This Section 8.5 does not limit either party’s right to injunctive relief for breaches not listed.)

8.6 Destruction of Confidential Information. Upon termination of this Agreement, Customer shall wipe clean all copies of Confidential Information or certify, in writing, the destruction thereof.

8.7 SitePro’s Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. SitePro will retain all right, title, and interest in and to all of its Confidential Information.

9. INTELLECTUAL PROPERTY

All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know‐how and other Confidential Information (as described above), trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement, to which Customer has access to under this Agreement, or that are prepared by or on behalf of SitePro in the course of performing the Services or providing Software, including any items identified as such in the Order (collectively, the “Work Product”) shall be owned by SitePro. Customer and User agree that all enhancements, improvements, updates and addition to the Services or Software, even if made at the suggestion, request, recommendation, correction, or other feedback provided by Customer or Users relating to the SitePro Software or Services shall be owned exclusively as Intellectual Property Rights of SitePro, and Customer and User hereby agree to execute any documents, assignments or other transfers, if required by law, to effect or confirm such exclusive ownership by SitePro.

SitePro hereby grants Customer a limited, non‐exclusive, non‐transferable, non‐sublicensable license under any Intellectual Property Rights of SitePro that are embodied in any Work Product provided by SitePro to Customer hereunder to the limited extent necessary to enable Customer to make reasonable use of such Work Product for the duration of the applicable Work Product at the Customer. Further, SitePro retains all right, title, and interest in and to the Solution, including without limitation all software used to provide the Solution and all graphics, user interfaces, logos, and trademarks reproduced through the Solution and components. Customer also specifically acknowledges that the Software and System are covered by patents belonging to SitePro, Customer specifically acknowledges its knowledge and awareness of SitePro’s patents, and Customer specifically acknowledges that it put on notice with respect to SitePro’s patents, which are shown and disclosed on SitePro’s website, for example at https://www.sitepro.com/legal/patent-information.

10. PAYMENT TERMS

10.1 Invoicing and Payment. Customer shall pay all invoiced amounts due to SitePro within thirty (30) days from the date of SitePro’s invoice. Customer shall make all payments hereunder in US dollars. Customer is responsible for providing complete and accurate billing and contact information to SitePro and notifying SitePro of any changes to such information. If customer believes that SitePro has billed Customer incorrectly, Customer must contact SitePro no later than sixty (60) days following the receipt of the applicable invoice in order to receive an adjustment or credit.

10.2 Taxes. Customer shall be responsible for the payment of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer for any Goods, Software or Services provided to Customer hereunder, other than any taxes imposed on, or with respect to, SitePro’s income, revenues, gross receipts, personnel or real or personal property or other assets, an any federal income taxes, withholding requirements, self‐employment taxes, social security taxes, sales taxes, use taxes and other taxes on payments made by SitePro to its employees and contractors.

10.3 Overdue Charges. Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse SitePro for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

10.4 Suspension of Service. In addition to all other remedies available under this Agreement or at law (which SitePro does not waive by the exercise of any rights hereunder), if Customer fails to pay within 30 days after becoming due any amounts due to SitePro under this Agreement or any other agreement between SitePro and Customer and such failure is not cured within ten (10) days after written notice by SitePro, SitePro shall be entitled to suspend the performance of any Services, access to the Software, Documentation or System, and the delivery of any Goods until payment has been made in full.

10.5 Setoff. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with the SitePro, whether relating to SitePro's breach, bankruptcy or otherwise.

11. LIMITED WARRANTY AND REMEDIES

11.1 Warranty. SitePro warrants that (i) the Services will be performed in a professional and workmanlike manner in accordance with industry standards and applicable law, (ii) the Goods (excluding Third Party Products, as defined in Section 7(e) below) will materially conform with the applicable written specifications as set forth in a mutually agreed exhibit to the Order and will be free from material defects in material or workmanship, upon delivery and for the duration of the Warranty Period (applied to Goods and Services), under normal operating conditions and within the limits of any specified test provisions, and (iii) the Software will operate in accordance with the applicable Documentation in all material respects. Further, the warranty set forth in this Section 11.1 will not apply and will become null and void, and SitePro specifically disclaims all such warranties, if Customer or User breaches any provision of this Agreement, or if Customer or User or any other person provided access to the Goods, Services or Software by Customer or any User, whether or not in violation of this Agreement, accesses or uses the Goods, Services or Software on or in connection or combination with any hardware or software not specified in the Documentation or expressly authorized by SitePro in writing. For purposes of this express limited warranty, the “Warranty Period” means (x) in the case of Goods, the 60‐day period beginning on the date the Goods in question are installed by SitePro (or the date of delivery if such Goods are not installed by SitePro) and (y) in the case of Services, the 14‐day period beginning on the date the Services in question are performed by SitePro.

11.2 Remedies. Subject to the terms and conditions of the express limited warranty provided by this Article 11, SitePro, at its election and expense, shall repair or replace any such defective or non‐conforming Goods (or part thereof) and shall re‐perform any such defective or non‐conforming Services (or part thereof), as applicable, or at its election, return the stated contract price paid for such defective or non‐conforming portion of the Goods or Services, as applicable. With respect to the Software, if the Software covered by the warranty set forth in Section 11.1 fails to perform materially in accordance with the applicable Documentation, and such failure is not excluded from warranty pursuant to this Article 11, SitePro will, at its sole option, either: (i) repair or replace the Software. (ii) provide an update to the Software to address the failure, or (iii) provide a prorated refund of pre-paid fees for the Software, subject to Customer or User’s ceasing all use of the Software; provided that (applicable to (i), (ii) and (iii)) Customer provides SitePro with all information SitePro requests to resolve the reported failure, including sufficient information to enable SitePro to recreate such failure. SitePro shall not be liable for or required to remedy a breach of the warranty unless: (i) Customer or User gives written notice to SitePro during the Warranty Period (as applicable to Goods and Services) or during the Term of use of the Software that reasonably describes the alleged failure, defect or non‐conformity; (ii) SitePro is given a reasonable opportunity after receiving the notice to investigate such failure, defect or non‐conformity and Customer or User grants SitePro access to all relevant facilities and locations at all reasonable times in order to conduct such investigation (or returns the Goods in question to SitePro’s place of business, if requested to do so by SitePro, for such investigation to take place there); and (iii) SitePro reasonably verifies Customer’s or User’s claim that the Software, Goods or Services do not comply with the express limited warranty provided by this Article 11. If an alleged failure, defect or nonconformity is found not to be covered by the express limited warranty provided by this Article 11, Customer shall be charged the SitePro’s standard rates for service calls and any replacement Goods, repairs or additional work performed by the SitePro. Customer shall assume all responsibility and expense for removal, reinstallation and freight in connection with the express limited warranty provided by this Article 11.

11.3 SitePro shall not be liable for a breach of the express limited warranty provided by this Article 11 in the case of: (i) any further use of such Goods, Services or Software by Customer or User after giving such notice (other than as authorized by SitePro); (ii) the failure, defect or non‐conformity related to acts or omissions on the part of Customer or User, including, but not limited to, errors attributable to inaccurate or incomplete information supplied by Customer or User; (iii) any failure by Customer or User to follow SitePro’s oral or written specifications, guidelines or instructions as to the storage, installation, commissioning, maintenance, operation or use of the Software, Goods or Services; or (iv) any change, modification, alteration, reconstruction or repair by Customer or User or persons other than SitePro or SitePro’s authorized representatives without the prior written consent of SitePro.

11.4 The express limited warranty provided by this Article 11 does not apply in cases of: (i) abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper maintenance, improper handling, overheat, overload, power quality disturbances (sags, surges, harmonics, etc.), abnormal physical stress, and/or abnormal environmental conditions; (ii) storage, operation or use outside of specified temperatures or pressures or other specifications, guidelines or instructions issued by SitePro; or (iii) use with any third party product or service that has not been previously approved in writing by SitePro.

11.5 Certain Software, Goods or Services provided by one or more third parties (“Third Party Products”) may constitute, contain, be contained in, incorporated into, attached to, packaged or provided together with, the Goods or Services, including, without limitation, Third Party Products provided by Customer to be tied into the Goods and Services. Third Party Products are not covered by the express limited warranty provided by this Article 11. SitePro shall have no liability or obligation whatsoever with respect to any Third Party Product under the terms of the original manufacturer’s warranty or otherwise; however, SitePro may, in its discretion, with respect to Third Party Products provided by SitePro facilitate the warranty processing which may occur between Customer and the original manufacturer or other provider of the Third Party Product, in which case any cost will be passed through SitePro to Customer. SITEPRO MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, STATUTE OR OTHERWISE, AND SITEPRO SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.

11.6 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11(a), SITEPRO MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ANY GOODS OR SERVICES, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, STATUTE OR OTHERWISE AND SITEPRO SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. FURTHERMORE, CUSTOMER IS RESPONSIBLE FOR IMPLEMENTING AND MAINTAINING SECURITY MEASURES ON SITE TO ENSURE CUSTOMER DATA WILL REMAIN SECURE.

11.7 THE PROVISIONS OF THIS ARTICLE 11 ARE IN LIEU OF ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, STATUTE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, AND EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6(a), ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED BY SITEPRO TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6(a), SITEPRO SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES AS TO THE CONDITION, VALUE OR QUALITIES OF ANY GOODS, SERVICES, INFORMATION OR MATERIALS PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, WHETHER ANY SUCH GOODS, SERVICES, INFORMATION OR MATERIALS WILL BE ACCURATE, COMPLETE, SECURE, CONTINUOUS, UNINTERRUPTED OR ERROR‐FREE. FURTHERMORE, SITEPRO SHALL NOT BE LIABLE TO CUSTOMER FOR USE OF THE SITEPRO GOODS AND SERVICES IN HAZARDOUS OR HIGH-RISK ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, IN WHICH THE FAILURE OR MALFUNCTION OF THE SITEPRO GOODS AND SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE. SUCH USE IS AT CUSTOMER’S OWN RISK, EVEN IF SITEPRO KNOWS OF SUCH USE, AND SITEPRO DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH HIGH-RISK ACTIVITIES.

11.8 THE PROVISIONS OF THIS ARTICLE 11 CONSTITUTE SITEPRO’S SOLE LIABILITY AND OBLIGATION AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY, DEFECT OR NON‐CONFORMITY WITH RESPECT TO ANY GOODS OR SERVICES PROVIDED BY SITEPRO OR OTHERWISE, WHETHER SUCH CLAIMS ARE BASED ON BREACH OF CONTRACT, STATUTE, INDEMNITY, CONTRIBUTION, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHER THEORIES. THESE LIMITATIONS APPLY EVEN IF ANY OF THE LIMITED REMEDIES PROVIDED BY THIS SECTION FAILS OF ITS ESSENTIAL PURPOSE. Without limiting the generality of the foregoing, Customer specifically waives any right to seek damages or claims for loss associated with downtime of its operations or remediation or clean‐up costs from an undesirable occurrence arising out of or related to the Goods or Services.

12. LIMITATION OF LIABILITY; INDEMNIFICATION

12.1 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL SITEPRO, SITEPRO’S CONTRACTORS AND SUBCONTRACTORS OF ANY TIER, AND SITEPRO’S DIRECTORS, OFFICERS, OWNERS, EMPLOYEES, REPRESENTATIVES, AGENTS, PARENT, AFFILIATES, AND SUBSIDIARIES, DIRECT AND REMOTE, AS WELL AS INVITEES OR GUESTS OF ANY OF THE FOREGOING OR INDIVIDUALS OR ENTITIES (hereinafter the “SITEPRO GROUP”) BE LIABLE TO CUSTOMER, CUSTOMER’S CONTRACTORS AND SUBCONTRACTORS OF ANY TIER, AND CUSTOMER’S DIRECTORS, OFFICERS, OWNERS, EMPLOYEES, REPRESENTATIVES, AGENTS, PARENT, AFFILIATES, AND SUBSIDIARIES, DIRECT AND REMOTE, AS WELL AS INVITEES OR GUESTS OF ANY OF THE FOREGOING OR INDIVIDUALS OR ENTITIES (hereinafter the “CUSTOMER GROUP”) OR ANY THIRD PARTY WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR A BREACH THEREOF, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (WHETHER SUCH BE IN CONTRACT, TORT, NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, INDEMNITY OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, FOR ANY: CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA, COSTS OF CAPITAL, OR OF SUBSTITUTE USE OR PERFORMANCE, CLEAN‐UP, REMEDIATION, DOWNTIME, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATED TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CUSTOMER OR COULD HAVE BEEN REASONABLY FORESEEN BY CUSTOMER, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

12.2 Limitation of Liability. EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE 12, IN NO EVENT SHALL SITEPRO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO SITEPRO DURING THE 12 MONTH PERIOD PRECEDING THE CLAIM TO SITEPRO FOR THE SITEPRO GOODS AND SERVICES PROVIDED UNDER THE RELATED ORDER REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

12.3 Indemnification by SitePro. SitePro will defend Customer against any lawsuit filed in a state or federal court claim against Customer by a third party alleging in that any Software, Good or Services infringes or misappropriates such third party’s intellectual property rights (an “Infringement Claim”), and SitePro will indemnify Customer from any damages, reasonable attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by SitePro in writing of an Infringement Claim, provided that Customer (a) promptly gives SitePro written notice of the Infringement Claim (and in no event shall prompt notice be less than thirty (30) days), (b) gives SitePro sole control of the defense and settlement of the Infringement Claim (except that SitePro may not settle any Infringement Claim unless it unconditionally releases Customer of all liability), and (c) gives SitePro all reasonable assistance, at SitePro’s expense, in connection with the defense of the Infringement Claim. If SitePro receives information about an infringement or misappropriation claim related to the Goods, Software or Services, SitePro may in its discretion and at no cost to Customer (i) modify the Goods, Software or Services so that they no longer infringe or misappropriate, (ii) obtain a license for Customer’s continued use of that Good, Software or Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions or Agreement for that Good, Software or Service upon 30 days written notice and refund Customer or User any prepaid fees covering the remainder of the term of the terminated subscriptions.

The above defense and indemnification obligations do not apply, and SitePro specifically disclaims any indemnification, if (1) the allegation does not state with specificity that the SitePro Goods, Software or Services are the basis of the Infringement Claim; (2) an Infringement Claim arises from the use with or combination of the Software, Goods or Services or any part thereof with software, hardware, data, or processes not provided by SitePro, if the Goods, Software Services or use thereof would not infringe without such combination; (3) an Infringement Claim arises from Software, Goods or Services under an Order for which there is no charge or Fee; or (4) an Infringement Claim arises from a non-SitePro application or Customer’s breach of this Agreement.

12.4 Indemnity by Customer and User. Customer and User shall indemnify and defend SitePro Group against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the Goods, Software or Services and components including without limitation: (a) claims by Customer’s Clients or other Users or by Customer's or Customer’s Clients’ employees; (b) claims related to Data Incidents (as defined below); (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded through Customer’s account, including without limitation by Customer Data. Indemnified Claims pursuant to the preceding sentence also include claims related to the injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of Customer or of any of its agents, subcontractors, or employees. (A “Data Incident” is any (i) unauthorized disclosure of, access to, or use of Customer Data, or (ii) violation of Privacy/Security Law through Customer’s account. Data Incidents include, without limitation, such events caused by Customer, User, Customer’s customers or other users, by hackers, and by any other third party.

12.5 Customer and User hereby further agrees to protect, release, defend, indemnify and hold the SitePro Group harmless from and against any and all claims, demands, and causes of action of every kind and character (including without limitation, fines, penalties, remedial obligations, court costs and reasonable attorneys’ fees, including attorneys’ fees incurred in the enforcement of this indemnity) (collectively the “Indemnifiable Claims”) arising out of the emission, discharge or release of pollutants or substances prohibited by law, unless such emission, discharge or release arises out of the gross negligence or willful misconduct of a member of the SitePro Group.

12.6 Litigation & Additional Terms. The obligations of the indemnifying party (“Indemnitor”) pursuant to this Article 12: (a) include retention and payment of attorneys and payment of court costs, as well as settlement at Indemnitor’s expense and payment of judgments; and (b) will be excused to the extent the other contracting party’s (“Indemnified Party’s”) or any of such Indemnified Party’s Associates’ fail to provide prompt notice of the Indemnified Claim or reasonably cooperate in a manner which materially prejudices the defense. If Indemnitor fails to assume the defense on time to avoid prejudicing the defense, Indemnified Party may defend the Indemnified Claim, without loss of rights pursuant to this Article 12. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (A party’s “Associates” are its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)

13. INSURANCE

During the term of this Agreement, Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, casualty insurance adequate to insure against loss or damage from any external cause and commercial general liability (including product liability) with financially sound and reputable insurers and with the SitePro named as insured or co‐insured. Upon SitePro’ request, Customer shall provide the SitePro with a certificate of insurance from the Customer’s insurer evidencing the insurance coverage specified in this Agreement. Customer shall provide the SitePro with ten (10) days’ advance written notice in the event of a cancellation or material change in the Customer’s insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against the SitePro’s insurers and SitePro.

14. GENERAL PROVISIONS

14.1 Compliance with Law. Customer and User shall comply with all applicable laws, regulations, and ordinances. Customer and User shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Customer and User shall comply with all export and import laws of all countries involved in the sale or provision of SitePro Goods or Services under this Agreement or any resale by Customer. Customer assumes all responsibility for any government import clearance. SitePro may terminate this Agreement if any governmental authority imposes countervailing duties or any other penalties on any SitePro Goods or Services.

14.2 Term and Termination. This Agreement commences on the earliest of (i) the date Customer first accepts it and continues until all Orders hereunder have expired or have been terminated, or (ii) upon first access to, instillation or or use of the Goods, Software or Services. In addition to any remedies that may be provided under this Agreement, SitePro may terminate this Agreement with immediate effect upon written notice to Customer or User, if Customer or User: (i) fails to pay any amount when due under this Agreement or and Order; (ii) has otherwise failed to perform or comply with any of these terms or this Agreement (whether material or not), in whole or in part, and such failure continues for 30 days after Customer’s or User’s receipt of written notice of such failure; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors; or as otherwise provided in this Agreement. Either party may terminate this Agreement for cause upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period. The term for a subscription to Software or Services shall be as specified in the applicable Order. Except as otherwise specified in an Order, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is longer), unless either party gives the other written notice of non-renewal (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order, renewal of promotional or one-time priced subscriptions will be at SitePro’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Software or Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

14.3 Payment upon Termination. If this Agreement is terminated by SitePro, Customer will pay any unpaid fees covering the remainder of the term of all Orders (the “Termination Fee”). It is specifically agreed that the Termination Fee represents partial liquidated damages and not a penalty. Such partial liquidated damages only relate to the fees owned through the remainder of any term, and do not limit or otherwise affect any damages caused by Customer or User’s breach of any provision of this Agreement. In no event will termination relieve Customer of its obligation to pay any fees payable to SitePro for the period prior to the effective date of the termination. If the Termination Fee is 30 days or more overdue and is not cured within ten (10) days after written notice by SitePro, SitePro may, without limiting its other rights and remedies, suspend Services or apply a lien to the applicable assets until such amounts are paid in full. If this Agreement is terminated by Customer in accordance with this Agreement, SitePro will refund Customer any prepaid fees covering the remainder of the term of all Orders after the effective date of termination.

14.4 Public Announcement. Customer hereby agrees that, upon reasonable notice to Customer, the SitePro may make a public announcement of the transactions contemplated by this Agreement, and may publicize the same in marketing materials, newspapers, and other publications, on the SitePro’s website and otherwise, and in connection therewith may use Customer’s name, tradenames, and logos.

14.5 Force Majeure. The SitePro shall not be liable or responsible to Customer or User, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of SitePro including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock‐outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers, or inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage.

14.6 Goods and Services Change Orders. If either party wishes to change the scope or performance of any Order related to Goods, Software or Services, it shall submit details of the requested change to the other party in writing. SitePro shall, within a reasonable time after such request, provide a written estimate to Customer of: (i) the likely time required to implement the change; (ii) any necessary variations to the fees and other charges arising from the change; (iii) the likely effect of the change on the provision of Software, Goods or Services; and (iv) any other impact the change might have on the performance of this Agreement. Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with this Agreement. Notwithstanding the foregoing, SitePro may, from time to time, make changes to the Software or Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Software or Services or the performance dates set forth in the Order, or the fees set forth in the Order by more than 5%, and the Customer shall be billed by SitePro and the Customer agrees to pay such bill on the basis of such changes.

14.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Orders), without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

14.8 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

14.9 No Third‐Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

14.10 Governing Law; Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder may be instituted in the federal courts of the United States, or the courts of the State of Texas and each party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.

14.11 Notices. All notices, request, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre‐paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

14.12 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

14.13 Survival. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Section 4.4(b) (Use Restrictions), 4.5 (Responsibility for Use), Article 6 (Collection and Use of Information), Article 7 (Additional Customer Obligations), Article 8 (Confidentiality), Article 9 (Intellectual Property), Article 10 (Payment Terms), Article 11 (Limited Warranty and Remedies), Article 12 (Limitation of Liability; Indemnification) and Article 14 (General Provisions).

14.14 Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.

14.15 Conflicts. In case of a conflict among the attachments to this Agreement and this main body, the following order of precedence will govern: (a) this main body of this Agreement; (b) any Order, with more recent Orders taking precedence over later ones; and (c) any SitePro ancillary agreements posted online. No Order or other attachment incorporated into this Agreement after execution of this main body will be construed to amend this main body or any earlier attachment unless it specifically states its intent to do so and cites the section or sections amended.

14.16 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

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