GENERAL TERMS & CONDITIONS

These terms and conditions (these “Terms and Conditions”), together with the Proposal and/or Quotation, its attachments and related documents, and the invoice (if any), or other contract entered into between the Seller and Buyer identified below which reference this General Terms and Conditions constitute and govern the agreement (the “Agreement”) between us, Quantronix, Inc. (“Seller”, and/or “Quantronix”), and you (“Buyer” and/or “the Client”). Provision of products and services under this Agreement is made subject to these Terms and Conditions, and any inconsistent or additional terms or conditions contained in any acknowledgment, or other form used by the Client, are hereby rejected.

1. INTERPRETATION

1.1. In this Agreement the following words and phrases shall have the following meanings:
a) Services means the services or creation or installation of products set out in any relevant Quantronix proposal, estimate, quote, purchase order, invoice, or other document which references this Agreement;
b) Proposal means the proposal, estimate or fee quote, if applicable, provided to the Client by Quantronix relating to the Services;
c) Intellectual Property Right(s) means copyrights, trademarks (registered or unregistered), patents, patent applications (including the right to apply for a patent), service marks, design rights (registered or unregistered), trade secrets and other like rights howsoever existing;
d) Confidential Information shall mean all information in whatever form or manner presented which: (i) is disclosed pursuant to, or in the course of the provision of Services pursuant to, this Agreement; and (ii) is disclosed in writing, electronically, visually, orally or otherwise and marked or has been told to Client is confidential or is information to which would be reasonably considered to be confidential.
1.2. The headings in this agreement are for convenience only

2. THE SERVICES

2.1. Offer and Acceptance. The Proposal is submitted to the Client, only, and may not be transferred or assigned. The offer set forth in the Proposal will remain open for 60 days from the submission date. The offer is conditional and may be withdrawn at any time prior to acceptance.
2.2. The Service. Quantronix shall provide the Services to the Client in accordance to with the terms of this Agreement which is expressly incorporated into any Proposal between the Parties.
2.3. Inconsistency. In the event of any inconsistency between the terms of this Agreement and the Proposal, the terms of the Proposal shall take precedence.
2.4. Risk of Loss. Buyer acknowledges and accepts all risks of loss of products shipped or delivered to Buyer upon the moment such products are shipped to the Buyer.
2.5. Changes in Job Specifications. Unless otherwise agreed to by Seller in an addendum hereto, the product(s) purchased by Buyer shall meet Seller’s standard specifications and changes to the original specifications may delay delivery and/or necessitate a price increase.
2.6. Clients Use Only. The Services provided by Quantronix under this Agreement and/or memoranda, engineer data, calculations, measurements, estimates, notes and other material prepared by Quantronix in the course of providing or estimating the Services to the Client, together with status summaries or any other communication in any form describing the work or services performed (“Reports”) shall be only for the Client’s use and benefit and shall be considered as Confidential.
2.7. 3rd Party Obligations. In agreeing to provide the Services pursuant to this Agreement, Quantronix does not abridge, abrogate or undertake to discharge any duty or obligation of the Client to any other person.

3. QUANTRONIX WARRANTY

3.1. Quantronix warrants exclusively to the Client that the Services shall be performed in a manner consistent with that level of care and skill ordinarily exercised by other companies providing like services under similar circumstances.
3.2. In the event of a breach of warranty set out in 3.1 above Quantronix, shall, at its own expense, perform services of the type originally performed as may be reasonably required to correct any defect in Quantronix’s performance provided that Quantronix received written notice within three (3) months after completion of Service.
3.3. In addition to the above warranty Quantronix provides to Client the attached LIMITED WARRANTY on all Quantronix manufactured products, parts, and services. Integrated parts, components, or external accessories not manufactured by Quantronix are not included as part of this warranty.
3.4. Quantronix makes no other warranty, express or implied. All other warranties, conditions and other terms implied by statute or common law (including but not limited to any implied warranty of merchantability or fitness for a particular purpose) are, to the fullest extent permitted by law, excluded from this Agreement. No performance, deliverable, oral or other information or advice provided by Quantronix, its agents, sub-contractors, employees or other representatives will create a warranty or otherwise increase the scope of any warranty provided.

4. CLIENT WARRANTIES AND OBLIGATIONS

4.1. The Client represents and Warrants:
a) Authority. It has the power and authority to enter into this Agreement and procure the provision of the Services;
b) Representations. Any information, diagrams, specs, code, or related documents it (or any agent or representative of the Client) provides to Quantronix is true, accurate representative, complete and is not misleading in any respect. That Client acknowledges and accepts that Quantronix will rely on such information or materials provided by Client, without a duty to confirm or verify the accuracy or completeness thereof, as a basis to perform the Services;
c) 3rd Party Rights. The Client warrants the following: (1) it has the right to release the information provided to Quantronix, (2) Quantronix has the right to use the information to provide the Services, and (3) the release of the information will not, in any circumstances, infringe any legal rights (including Intellectual Property Rights) of any third party. In the event that the Service interfaces, integrates, or requires information from third parties the Client shall cause any such third party to acknowledge and agree to the use, interface, integration, or providing information as required prior to and as a condition precedent to receiving the information, integration, or interface. The Client shall hold Quantronix harmless from any and all claims made against it by the Client (its agents or representatives) and any 3rd party regarding the use of any information provided by the Client to Quantronix or from the breach of this section.

4.2. The Client further agrees to:
a) Cooperate. To cooperate with Quantronix in all matters relating to the Services and appoint a manager in relation to the Services who shall be duly authorized to provide instructions to Quantronix on behalf of the Client and to bind the Client contractually as required;
b) Provide Information. To provide Quantronix (including its agents, sub-contractors and employees), at its own expense, any and all specs, information, interface information, all barcoding, material or other documentation necessary or requested for the execution of the Services in a timely manner sufficient to enable Quantronix to provide the Services in accordance with this Agreement. The Client acknowledges that any documents or materials provided to Quantronix may become damaged or destroyed and undertakes to hold Quantronix harmless from any and all responsibility for an alteration to the document or material, damage or destruction. In the event that special care or handling is required for anything provided to Quantronix by the Client the Client shall make such care or handling known to Quantronix prior to providing it.
c) Cost Modifications. The Client acknowledges and accepts that Quantronix when creating a bid or the Proposal relies on information provided to it by The Client and in the event that all information was not known to Quantronix prior to beginning the work order or the Proposal, and it is discovered that additional work or products not originally considered is necessary, Quantronix shall have the right to submit a change order charging the Client for the additional work necessary to complete the Proposal. The Client shall have the right to accept or deny the change order but if denied Quantronix is under no obligation to perform the additional work or provide the additional products identified in the change order.
d) Provide Tax Status Information. The Client will be charged automatically a sales tax at the rate provided for in the county, state, country, or region as applicable for each sale. The Client will pay such sales tax unless prior to the sale being executed (each sale – not a one-time disclosure) the Client notifies Quantronix in the purchase order that it believes it may be tax exempt. In the event the sales tax was paid and later it is discovered that the Client is exempt from the tax it shall be the Client’s responsibility to reimburse Quantronix for the tax it paid and then seek reimbursement from the county, state, country, or region, for the sales tax collected and paid.
e) Feedback. To provide instructions and feedback to Quantronix in a timely manner.
f) Access to Premises. To provide Quantronix (including its agents, sub-contractors and employees) with access to its premises as may be reasonably required for the provision of the Services;
g) Safety Briefing. To provide Quantronix and its agents, sub-contractors, and employees with information concerning all health and safety rules and regulations and other reasonable security requirements that may apply at any relevant premises at which the Services are to be provided;
h) Notification of Harm. To notify Quantronix promptly of any risk, safety issues, or incidents in respect of any item delivered by the Client, or any process or systems used at the Clients premises to which the Services are being provided;
i) Import/Export Restrictions. To inform Quantronix in advance of any applicable import/export restrictions or government secrecy requirement that may apply to the Services to be provided;
j) Licensing and Regulations. To obtain and maintain all necessary licenses and consents in order to comply with applicable legislation and regulation in relation to the Services. The Client should be aware and is hereby notified that there may be certain “Legal-for-Trade” requirements and regulations if the Services are used in a manner to determine charges. The Client should be aware of and comply with all Legal-for-Trade regulations. Not all products of Quantronix have Legal-for-Trade Type-Approval.

5. CHARGES, INVOICING, PAYMENT, AND TITLE

5.1. The Client shall pay Quantronix the charges incurred or set out in the Proposal, if applicable, or as otherwise contemplated for provision of the Services (the Charges).
5.2. The Charges are expressed exclusive of any applicable taxes. The Client shall pay any applicable taxes on the Charges at the rate prescribed by law, on the issuance by Quantronix of a valid invoice. Section 4.2d in this Agreement shall apply.
5.3. The Client agrees to reimburse Quantronix for any shipping, freight, or custom clearance fees relating to the Services.
5.4. Quantronix shall invoice the Client for the Charges and expenses, if any. The Client shall pay each invoice within thirty (30) days upon receipt.
5.5. If any invoice is not paid on the due date for payment, Quantronix shall have the right to charge, and the Client shall pay, interest on the unpaid amount, calculated from the due date of the invoice to the date of receipt of the amount in full at a rate equivalent to 1.5% per month or 18% per annum.
5.6. Legal possession and title of any products sold to the Client by Quantronix shall pass to the Client upon shipment being delivered to the carrier.

6. INTELLECTUAL PROPERTY RIGHTS

6.1. All Intellectual Property Rights belonging to a party prior to entry into this Agreement shall remain vested in that party. Nothing in this Agreement is intended to transfer or grant any Intellectual Property Rights from either party to the other. Furthermore, the right to use certain software and firmware, if any, under the Agreement is a non-exclusive, non-transferable license.
6.2. Any use by the Client (or the Client’s affiliated companies, agents, or subsidiaries) of the name Quantronix, CubiScan, QMI, or any of Quantronix trademarks, logos, or brand names for any reason other than internal references to the use of the Services in its ordinary course must be prior approved in writing by Quantronix. Any other use of Quantronix trademarks, logos or brand names is strictly prohibited and Quantronix reserves the right to terminate this Agreement immediately as a result of any such unauthorized use.
6.3. In the event of a claim against the Client and/or Quantronix based upon a patent, trademark, or copyright infringement, or misappropriation of trade secret and concerning a product or service provided by Quantronix, Quantronix shall have the first right to defend, at its expense, and to settle and/or otherwise resolve the dispute, and (if applicable), to pay the costs and damages incurred in any settlement awarded as a result of any action under such claim. Notwithstanding anything herein to the contrary, Quantronix obligation to the Client shall be expressly limited to an amount not to exceed the purchase price of the Services or equipment and materials sold hereunder which constitute the alleged infringement.

7. CONFIDENTIALITY

7.1. The Client acknowledges that the Client may become exposed to or familiar with information and/or concepts that are proprietary to Quantronix related to the Services, the related software and/or license, the delivery of confidential materials such as but not limited to: instruction books, manuals, proposals, specs, product development plans, source code, design documents, drawings, venders, pricing, fixed costs, financial, diagnostics, service agreements, interfacing, sensitive materials, and/or other documentation or information. Buyer therefore agrees and covenants, for valuable consideration, that no proprietary rights are acquired under this Agreement, and that it shall not use, at any time, for itself, nor shall it disclose to any other person, any of the confidential knowledge or information acquired pursuant to this purchase or the parties ongoing contractual relationship, unless use of such information is necessary to comply with ongoing contractual obligations to the Client or in regards to using the Services in its normal course.
7.2. The Client shall not, except for its own use, copy or duplicate any proprietary documents. The Client agrees to inform its employees, representatives and agents of the confidential and proprietary nature of such items, and to adopt reasonable and appropriate measures for the protection of Quantronix confidential and proprietary rights therein.
7.3. The Client agrees that the Client shall not disassemble, decompile or reverse engineer the product(s) provided hereunder.
7.4. The Client agrees that the harm to Quantronix and remedies available may be inadequate to protect against a breach of confidentiality and that in addition to other remedies available by law Quantronix shall be entitled to equitable relief by way of injunction (temporary or permanent) in the event of an actual or threatened or anticipated breach of confidentiality.
7.5. The provisions of this confidentiality shall remain in effect for a period of five (5) years beginning on the date in which the Client received the confidential information and shall survive the termination or expiration of this Agreement.
7.6. The provisions of this Confidentiality shall not apply to any Confidential Information which: (i) is or becomes public knowledge other than by the breach of this Agreement; (ii) is received by a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or (iii) is independently developed by the Client without access or benefit to or from the relevant Confidential Information.

8. AMENDMENT

8.1. No amendment to this Agreement shall be effective unless it is in writing, expressly stated to amend this Agreement and signed by an authorized signatory of each party.

9. FORCE MAJEURE

9.1. Neither party shall be liable to the other for any delay in performing or failure to perform any obligation under this Agreement to the extent that such delay or failure to perform is a result of:
a) War, whether declared or not, civil war, riots, revolution, acts of terrorism, military action, sabotage and/or piracy;
b) Natural disasters such as but not limited to: violent storms, earthquakes, tidal waves, floods and/or lightning, explosions, and fires;
c) Strikes, labour disputes, shortage of materials, utility and communication failures;
d) Crimes committed by third parties such as but not limited to: theft, destruction of property, conspiracy, piracy, and hacking.
9.2. The same shall apply if in the event an essential subcontractor or agent of Quantronix is unable to perform the Services due to force majeure.
9.3. A party whose performance is affected by an event of Force Majeure described above shall:
a) Promptly notify the other party in writing of the Force Majeure Event and the cause and the likely duration of any consequential delay or non-performance of its obligations;
b) Use all reasonable endeavors to avoid or mitigate the effect of the Force Majeure Event and continue to perform or resume performance of its affected obligations as soon as reasonably possible; and
c) Continue to provide services that remain unaffected by the Force Majeure Event.
9.4. If the Force Majeure Event continues for more than sixty (60) days after the day on which it started, and if such event has materially altered the performance of the Agreement, the non-affected party may terminate this Agreement by giving at least ten (10) days’ written notice to the affected party and each party shall be responsible to comply with all terms and conditions related to the Services which were provided up to the date of termination.

10. LIMITATIONS AND EXCLUSIONS OF LIABILITY

10.1. In no event will Quantronix be liable to the Client or to any other person or entity for any special, consequential, incidental, or other damage, however caused, direct or indirect, whether for breach of contract, negligence or under any other legal theory, including lost profits, and whether or not Quantronix has been advised of the possibility of such damage. Quantronix sole and exclusive liability and the Clients sole and exclusive remedy for breach of this Agreement is the repair or replacement of defective hardware or software. If Quantronix is unable to make the necessary repairs within a reasonable period of time, at Quantronix option, it shall either refund the monies paid or provide a replacement.
10.2. THE MAXIMUM AGGREGATE LIABILITY OF QUANTRONIX IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND BREACH OF STATUTORY DUTY) OR OTHERWISE FOR ANY BREACH OF THIS AGREEMENT OR ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THE SERVICES TO BE PROVIDED IN ACCORDANCE WITH THIS AGREEMENT SHALL NOT EXCEED QUANTRONIX’S TOTAL FEE FOR THE SERVICES RENDERED ON THE PROJECT CREATING THE LIABILITY.
10.3. Any claim by the Client against Quantronix must be made within ninety (90) days after the earlier of (i) the date that the Client first becomes aware of any circumstances giving rise to any such claim, or (ii) within one year from the date of the incident or date in which Quantronix delivers the applicable Services. Failure to give such notice of claim within the applicable period set forth herein shall constitute a bar or irrevocable waiver to any claim, either directly or indirectly, in contract, tort or otherwise in connection with the provision of the Services under this Agreement.
10.4. Nothing in these limitations limits or excludes any liability for fraudulent misrepresentation.

11. INDEMNITY

11.1. The Client shall indemnify and hold harmless Quantronix, its officers, employees, agents, representatives, contractors and sub-contractors from and against any and all claims, suits, liabilities (including costs of litigation and attorney’s fees) arising, directly or indirectly, out of or in connection with:
a) Any claims or suits by any governmental authority or others for any actual or asserted failure of the Client to comply with any law, ordinance, regulation, rule or order of any governmental or judicial authority;
b) Claims or suits by any governmental authority or others for any actual or asserted failure of the Client to comply with any law, ordinance, regulation, rule or order of any governmental or judicial authority;
c) Claims or suits for personal injuries, loss of or damage to property, economic loss, and loss of or damage to Intellectual Property Rights incurred by or occurring to any person or entity and arising in connection with or related to the Services provided hereunder by Quantronix, its officers, employees, agents, representatives, contractors and sub-contractors;
d) The breach or alleged breach by the Client of any of its obligations set out in this Agreement;
e) Any claims made by any third party for loss, damage or expenses of whatsoever nature and howsoever arising relating to the performance, purported performance or non-performance of any Services to the extent that the aggregate of any such claims relating to any one Service exceeds the limit of liability set out above;
f) any claims or suits arising as a result of any misuse or unauthorized use of any Report or confidential information issued by Quantronix or any Intellectual Property Rights belonging to Quantronix (including trade marks); and
g) any claims arising out of or relating to any third party’s use of or reliance on any Reports, analyses, conclusions of the Client (or any third party to whom the Client has provided the Reports) based in whole or in part on the Reports, if applicable.
11.2. The obligations set out in this clause 11 shall survive the termination or expiration of this Agreement.

12. INSURANCE POLICIES

12.1. Each party shall be responsible for the arrangement and costs of its own company insurance which includes, without limitation, professional indemnity, employer’s liability, motor and property insurance.
12.2. The Client acknowledges that although Quantronix maintains worker’s compensation and employer’s liability insurance, such insurance does not cover any employees of the Client or any third parties who may be involved in the provision of the Services. If the Services are to be performed or requires access to the premises belonging to the Client or third parties Quantronix’s insurance does not provide coverage for non-Quantronix employees. The Client should use its reasonable discretion in making sure it is properly covered with an insurance policy that will protect it from liability to employees or third parties who may become injured or harmed from an act related to the Services.

13. TERMINATION

13.1. The Agreement shall continue, unless terminated earlier in accordance with this clause or until the Services and each Party’s obligations hereunder have been provided.
13.2. This Agreement may be terminated by:

a) Either Party if the other continues in material breach of any obligation imposed upon it hereunder for more than thirty (30) days after written notice has been given by that Party using recorded delivery or courier and requesting the other party to remedy such breach;
b) Quantronix on written notice to the Client in the event that the Client fails to pay any invoice by its due date and/or fails to make payment after a further request for payment; or
c) Either party on written notice to the other in the event that the other becomes insolvent and makes any voluntary arrangement with its creditors, or becomes subject to an administration order or files for relief under the bankruptcy code, or an encumbrancer takes possession of secured property due to nonpayment or other material breach, or a receiver is appointed to control any of the property or assets of the other, or the other party threatens to cease and/or carry on its obligations or commitments.

13.3. In the event of termination of the Agreement for any reason, and without prejudice, and in addition to any other rights or remedies the parties may have, the Client shall pay Quantronix for all Services performed, products and parts produced or manufactured, whether completed or incomplete, up to the date of termination. This obligation shall survive the termination or expiration of this Agreement.
13.4. Any termination or expiration of the Agreement shall not affect the accrued rights and obligations of the parties nor shall it affect any provision which is expressly or by implication intended to come into force or continue in force on or after such termination or expiration.
13.5. Acceleration If the Client defaults hereunder, Quantronix may declare the Clients obligation immediately due and payable together with accrued interest, with or without notice. The Client waives presentment and all notices and demands to which it might be entitled to under applicable law. Quantronix may also exercise all rights available to it under this Agreement and/or law, and the Client agrees that such rights shall be cumulative.

14. ASSIGNMENT AND SUB-CONTRACTING

14.1. Quantronix reserves the right to delegate the performance of its obligations hereunder and the provision of the Services to one or more of its affiliates and/or sub-contractors when necessary.
14.2. The Client may not assign the Agreement or transfer its rights or obligations without written approval from Quantronix.

15. GOVERNING LAW AND DISPUTE RESOLUTION

15.1. This Agreement shall be governed by the laws of the state of Utah. All actions, proceedings and other disputes arising out of or in any way related to this Agreement shall be submitted to, and the parties agree hereby to the jurisdiction of the state and federal courts of the state of Utah, and agree to venue in the state of Utah. Prior to the commencement of any action, the parties agree to first engage in good faith in mediation in the state of Utah, and share, equally, the expenses of mediation. Nothing herein shall prevent the parties from agreeing to resolve any dispute by resorting to binding arbitration.

16. MISCELLANEOUS

16.1. UCC Applicability. Services rendered under the Agreement shall be deemed “goods” within the meaning of the Utah Uniform Commercial Code.
16.2. Full Force and Effect. If any provision of the Agreement is or becomes invalid, illegal or unenforceable, such provision shall be severed and the remainder of the provisions shall continue in full force and effect as if the Agreement had been executed without the invalid illegal or unenforceable provision. If the invalidity, illegality, or unenforceability is so fundamental that it prevents the accomplishment of the purpose of this Agreement, the parties shall immediately commence good faith negotiations to agree on an alternative term or condition.
16.3. No Agency. Nothing in the Agreement and no action taken by the parties under the Agreement shall constitute a partnership, association, joint venture or other co-operative entity between the parties, or constitute any party to be the agent or legal representative of the other.
16.4. Waiver. The failure of any party to insist upon strict performance of any provision of the Agreement, or to exercise any right or remedy to which it is entitled, shall not constitute a waiver and shall not cause a diminution of the obligations established by the Agreement. A waiver of a breach or multiple breaches shall not constitute a waiver of any subsequent breach. No waiver of any right or remedy under the Agreement shall be effective unless it is expressly stated to be a waiver and communicated to the other party in writing.
16.5. Entire Agreement. The Agreement contains the entire agreement between the parties and supersedes all prior or contemporaneous proposals, agreements or communications, oral or written. No purchase order, invoice, statement or other similar document will add to or vary the terms of this Agreement.
16.6. Modifications. No modification, waiver or amendment of any of these terms and conditions, including any assignment of Client’s rights and responsibilities hereunder, shall be binding upon Quantronix unless agreed to in writing, signed by an authorized agent, and specifically mentions that it is modifying these Quantronix General Terms and Conditions.
16.7. Binding Effect. Each party acknowledges that in entering into the Agreement it has not relied on any representation, warranty, collateral contract or other assurance (except those set out or referred to in the Agreement) made by or on behalf of any other party before the acceptance or signature of the Agreement) made by or on behalf of any other party before the acceptance or signature of the Agreement.
16.8. Security Agreement. Upon execution, the Agreement shall constitute a Security Agreement under the UCC and any other applicable laws, and the products sold hereunder shall serve as security for the unpaid portion of the purchase price and all other costs and charges hereunder. The Client grants to Quantronix a security interest in all hardware, software and other goods sold hereunder. To perfect, continue or assign said interest, the Client agrees to complete, execute and deliver to Quantronix, without additional consideration, and all financing statements and other documents requested by Quantronix to secure its interest in the products.
16.9. Legal Fees. If the Client defaults, in addition to any other relief, Quantronix shall be entitled to recover its reasonable attorney fees (whether or not suit or arbitration is instituted) and court costs and other litigation costs, if any, incurred by Quantronix to enforce this agreement.

QBIT CLOUD TERMS AND CONDITIONS

This Qbit Cloud Terms and Conditions (the “Agreement”) is effective as of the date the license holder (“Company”) downloads or accesses Qbit Cloud software (the “Effective Date”). By Company’s, purchase, or download, or use of Qbit Cloud they agree to the terms of this Agreement with Quantronix, Inc. (dba “Cubiscan”) (“Licensor”), with offices located at 314 South 200 West, Farmington UT 84025. For purposes of this Agreement, Company and Licensor each may be referred to individually as a “Party” and together as the “Parties.”

1. Definitions. As used in this Agreement:

(a) “Company” means, the legal entity who received a license to Qbit Cloud and any present or future entity that, directly or indirectly through one or more intermediaries, controls or is controlled by Company, or is under common control with Company.
(b) “Company Data” means (i) any electronic data, customer data, information, or material that Company provides, uploads, or submits to Licensor in connection with this Agreement, and (ii) any electronic data, customer data, information, or material generated from or in connection with Company’s use of the Services, Software, and System.
(c) “Company Marks” shall mean the trademarks, service marks, copyrights, intellectual property, symbols, logos, emblems, decals, designs, colors, likenesses, or other visual representations of Company including Company Marks that may be modified by Company from time to time.
(d) “End Users” means Company’s employees, representatives, consultants, contractors, or agents who are authorized to use the Service and have been supplied user identifications and passwords by Company (or by Licensor at Company’s request).
(e) “Service” means access to the System, which includes various Web, email, and database services or other designated websites or IP addresses, including associated documentation made available to Company in written form or online.
(f) “Software” means Qbit Cloud or any software identified in a SOW or other ordering document referencing this Agreement and its related product documentation or data related to the Services and/or System, and any update, revision, replacement, or modification thereof provided by Licensor from time to time.
(g) “System” means Licensor’s system, the Software, and related information technology resources.

2. Service.

(a) Initial Service. Licensor hereby grants to Company and the End Users a nonexclusive, non-assignable (except as otherwise contemplated in this Agreement), revocable, worldwide license to access and use the Software and System in order to utilize the Service in accordance with the terms and conditions of this Agreement and any applicable Statements of Work executed by both Parties related to the Software (each, a “SOW”).
(b) Modifications. Licensor may make modifications to the Service. In the event Licensor makes modifications to the Service that materially adversely impact Company’s use of the Software, Company may terminate this Agreement by providing written notice to Licensor. Company’s sole and absolute remedy related to this section shall be a refund of any prepaid fees or expenses not earned by Licensor after the date of Company’s notification of termination.
(c) Updates. Licensor will make available to Company all features and functionality developed for the Service by Licensor and released commercially after the initial deployment of such Service at no additional charge, including all updates, maintenance releases, fixes, upgrades, new versions, or any other major and minor enhancement to such Service.
(d) Professional Services. Licensor will provide professional services, including, but not limited to development, testing, implementation, training, and any other such professional or consulting services pursuant to a SOW. By way of performing Professional Services Licensor doesn’t transfer any intellectual property rights of such services to Company.

3. Use of the Service.

(a) Licensor Responsibilities. Licensor will: (a) in addition to its confidentiality obligations under Section 6, not, edit, or disclose the Company Data (including, but not limited to, any third parties or employees, representatives, agents, or contractors acting on behalf of Licensor) for any purpose other than as set forth below or as reasonably necessary to perform its obligations hereunder; (b) maintain the security of the Service in accordance with Section 7; (c) provide support services in accordance with the “Service Level and Support Services Agreement” (Exhibit “A”) attached hereto and incorporated herein; and (d) ensure that the Service is available to Company and performing in accordance with Exhibit “A,” subject to any Force Majeure Event, as defined in Section 8.
(b) Licensor Use of Company Data. To provide constant improvements, developments to the Software, Professional Services, recommendations, testing, quality control, and other benefits from Licensor’s Software or product offerings, the Licensor will use Company Data for the following purposes:

To provide a Personalized Experience for users. We may analyze, create reports, study, gather statistics, or other methods to use the Company Data to personalize use of the Software, provide alerts, create additional Software functionality that’s available to Company and other users of the Software.

To connect Company with other users of the Software. Sharing some Company Data may be beneficial to Company if shared with partners or other users. With Company’s permission options may become available in the Software to share certain Company Data with other users or to a collective shared pool of data. For example, an option to share to a database of dimensions of certain products identified via a bar code that can be used to identify abnormalities or optimal boxing/packaging or shipping instructions.

To use and develop advanced technologies. Company Data may be used so we can develop advanced technologies such as artificial intelligence, machine learning systems, and augmented reality so users of the Software can get the most efficient and advanced experience out of the Software.

Research ways to provide optimal Service and quality Software. We will research to develop, test, and improve our Service and Software. This will include analyzing Company Data and data we have about our users to understand how our customers use the Service and Software.

For the purposes of carrying out the use of Company Data set forth above Company provides Licensor with a perpetual license, that doesn’t terminate upon termination of this Agreement, that is non-exclusive, transferable, sub-licensable, royalty-free, worldwide, to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works from.

(c) Company Responsibilities. Company is responsible for all authorized activities that occur under Company’s End User accounts. Company will: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Company Data; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Licensor promptly after becoming aware of any such unauthorized access or use; (c) comply with all applicable local, state, federal, and foreign laws in using the Service; and (d) refrain from modifying, translating, adapting, altering, or creating derivative works from the Services.
(d) Service Guidelines. Company will use the Service solely for its internal business purposes as contemplated by this Agreement and will not use the Service to: (a) harvest, collect, gather, or assemble information or data regarding other users without their consent; (b) knowingly transmit through or post on the Service unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors; (c) knowingly transmit material containing software viruses or other harmful or deleterious computer codes, files, scripts, agents, or programs; (d) knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein; (e) attempt to gain unauthorized access to the Service, computer systems, or networks related to the Service; (f) distribute, sublicense, rent, lease, loan the Service to any third party, or (g) harass or interfere with another customer’s use and enjoyment of the Service.
(e) Privacy and Security. Licensor will have and maintain throughout the Term Privacy and Security Policies. Licensor reserves the right to modify its privacy and security policies in its reasonable discretion from time to time.
(f) Usage by Third Parties. In addition to any rights and licenses granted to Company under this Agreement, Company will have the right and license to allow third parties (which may include agents, contractors, affiliates, or other third-party representatives acting on behalf of Company), who may be located within or outside the United States of America, to access and use the Services for Company’s operations so long as Company ensures that such access and use by a third party is in accordance with the terms and conditions of this Agreement.

4. Fees & Payment.

(a) User Fees. As full and complete consideration for the Service to be provided by Licensor under this Agreement, including all rights and licenses granted hereunder, Company will pay the fees specified in each SOW executed and made a part of this Agreement All fees are quoted in United States Dollars.
(b) Invoicing and Payment. Licensor will invoice Company for fees for the Service in advance and in accordance with the terms of the relevant SOW. Charges due will be payable within thirty (30) days of the date the invoice was received by Company; provided, that, Licensor has made the Service (or other services as may be set forth in a SOW) available to Company in accordance with this Agreement and Company has accepted such Service (or other services, if applicable) in accordance with this Agreement and the relevant SOW. All payments made under this Agreement will be in United States Dollars.
(c) Taxes. Company will be responsible for, and will promptly pay or reimburse Licensor for, the payment of all sales, use, excise, value-added, or similar taxes, assessments, or duties (or other similar charges) imposed by any governmental agency.
(d) Late Payments. If Company fails to pay the Fees or any other payments when due the Licensor shall be entitled to interest from the day on which the Fees became due. The Parties agree that the rate of interest on the late payment(s) shall be one and a half percent (1.5%) of the amount due per month, or reduced to the maximum amount allowed by applicable law.

5. Proprietary Rights.

(a) Reservation of Rights. Company acknowledges that in providing the Service, Licensor utilizes: (a) the name, logo, and domain name of the product names associated with the Service and other trademarks; (b) certain audio and visual information, documents, software, and other works of authorship; and (c) other technology, hardware, products, processes, algorithms, user interfaces, knowhow, and other trade secrets, techniques, designs, inventions, and other tangible or intangible technical material or information (collectively “Licensor Technology”), and that the Licensor Technology is covered by intellectual property rights owned or licensed by Licensor (“Licensor IP Rights”). Other than as expressly set forth in this Agreement, no license or other rights in the pre-existing Licensor IP Rights are granted to Company, and all such rights are hereby expressly reserved.
(b) License Grant by Company. Company grants to Licensor a non-exclusive, limited, royalty-free, revocable, and non-transferable license, for the Term, to use, copy, store, modify, and display the Company Data solely to the extent necessary to provide the Service in accordance with this Agreement.
(c) Restrictions. Except as expressly permitted herein, Company will not: (a) modify, copy, or make derivative works based on the Licensor Technology; or (b) disassemble, reverse-engineer, or decompile any of the Licensor Technology. Except as expressly permitted herein, Licensor will not: (a) use the Company Data for any other purposes than as set forth in this Agreement and to provide the Service; or (b) disassemble, reverse-engineer, or decompile any of the Company Data.
(d) License of Company Marks. Company hereby grants Licensor a non-exclusive, non-transferable, limited, revocable, and royalty-free license to use Company Marks for the limited purposes set forth in this Agreement, providing the Services, and any applicable SOW’s. Licensor shall not use the Company Marks for any purpose other than as expressly set forth in this Agreement without the prior written consent of Company.

6. Confidentiality of Proprietary Information.

(a) In the performance of this Agreement, each Party may disclose to the other Party certain Proprietary Information. For the purposes of this Agreement, the following terms will have the definitions set forth herein.

(i) “Proprietary Information” means Trade Secrets, Confidential Business Information, Company Data, and Confidential Personal Information.
(ii) “Trade Secrets” mean trade secrets as defined under Utah law, as amended from time to time, and will include without limitation and without regard to form, technical or non-technical data, a formula, a pattern, a compilation, a program, a software program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, non-public forecasts, studies, projections, analyses, all customer data of any kind, including Confidential Personal Information or information derived from Confidential Personal Information, or a list of actual or potential customers or vendors, business and contractual relationships, or any information similar to the foregoing which: (a) derives economic value, actual or potential, from not being generally known and not being readily ascertainable by proper means to other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Company Data may include Trade Secrets, but only to the extent such Trade Secrets also meets the definition of Company Data.
(iii) “Confidential Business Information” means any valuable, non-public business information, other than Trade Secrets, that is designated or identified as confidential at the time of the disclosure or is by its nature clearly recognizable as confidential information to a reasonably prudent person with knowledge of the Disclosing Party’s business and industry. “Confidential Business Information” also means this Agreement and all matters discussed relating to this Agreement, information regarding either Party’s activities that is not available to the public and that, if disclosed, would likely provide such person with an advantage over the Disclosing Party or other third parties in a transaction with either Party or could otherwise be used to the detriment of the Disclosing Party. Company Data may include Confidential Business Information, but only to the extent such Confidential Business Information also meets the definition of Company Data.
(iv) “Confidential Personal Information” means personally identifiable health, medical, employment, and similar private personal information (including personally identifiable information, such as name, social security number, date of birth, driver’s license number, or credit card information) that can be reasonably associated with an identified or an identifiable person, household, or device. Company Data may include Confidential Personal Information, but only to the extent such Confidential Personal Information also meets the definition of Company Data.
(v) “Disclosing Party” means the Party disclosing any Proprietary Information hereunder, whether such Party is Company or Licensor and whether such disclosure is directly from the Disclosing Party or through the Disclosing Party’s employees, contractors, or agents.
(vi) “Receiving Party” means the Party receiving any Proprietary Information hereunder, whether such Party is Company or Licensor and whether such disclosure is received directly or through the Receiving Party’s employees, contractors, or agents.

(b) Notwithstanding subsection (a) above, and except for any Confidential Personal Information (for which the confidentiality obligations will remain intact unless otherwise required by applicable law), Proprietary Information does not include any information that: (a) was in the Receiving Party’s possession before receipt from the Disclosing Party; (b) is or becomes a matter of public knowledge through no fault of the Receiving Party; (c) is rightfully received by the Receiving Party from a third party without a duty of confidentiality; (d) is independently developed by the Receiving Party; or (e) is disclosed by the Receiving Party with the Disclosing Party’s prior written approval.
(c) The Receiving Party acknowledges and agrees that the Proprietary Information of the Disclosing Party will remain the sole and exclusive property of the Disclosing Party or a third party providing such information to the Disclosing Party. The disclosure of the Proprietary Information to the Receiving Party does not confer upon the Receiving Party any license, interest, or right of any kind in or to the Proprietary Information, except as provided under this Agreement. At all times and notwithstanding any termination or expiration of this Agreement, the Receiving Party agrees that it will hold in strict confidence and not disclose to any third party the Proprietary Information of the Disclosing Party, except as approved in writing by the Disclosing Party. The Receiving Party will only permit access to the Proprietary Information of the Disclosing Party to those of its employees or authorized representatives having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations substantially similar to those contained in this Agreement. The Receiving Party will be responsible to the Disclosing Party for any third party’s use and disclosure of the Proprietary Information that the Receiving Party provides to such third party in accordance with this Agreement. The Receiving Party will use at least the same degree of care it would use to protect its own Proprietary Information of like importance, but in any case with no less than a reasonable degree of care, including maintaining information security standards for such Proprietary Information as are commercially reasonable and customary for the type of Proprietary Information. In addition, with regard to Confidential Personal Information, Licensor will comply with the information security standards specific to such Proprietary Information as set forth in this Agreement.
(d) If the Receiving Party is required by a governmental agency or law to disclose any of the Proprietary Information of the Disclosing Party, the Receiving Party must, if legally permissible, first give written notice of such required disclosure to the Disclosing Party, make a reasonable effort to obtain a protective order requiring that the Proprietary Information so disclosed be used only for the purposes for which disclosure is required, take reasonable steps to allow the Disclosing Party to seek to protect the confidentiality of the Proprietary Information required to be disclosed, and will disclose only that part of the Proprietary Information which, in the written opinion of its legal counsel, it is required to disclose.
(e) Each Party to this Agreement will immediately notify the other Party in writing upon discovery of any unauthorized loss, access, or disclosure of the Proprietary Information of the other Party.
(f) The Receiving Party will not reproduce the Disclosing Party’s Proprietary Information in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Proprietary Information by the Receiving Party will remain the property of the Disclosing Party and will contain any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the Disclosing Party.
(g) Neither Party will communicate any information to the other Party in violation of the proprietary rights of any third party.
(h) If either Party should breach or threaten to breach any provision of this Section of the Agreement, the non-breaching Party, in addition to any other remedy it may have at law or in equity, will be entitled to seek a restraining order, injunction, or other similar remedy in order to specifically enforce the provisions of this Agreement. Each Party specifically acknowledges that money damages alone would be an inadequate remedy for the injuries and damages that would be suffered and incurred by the non-breaching Party as a result of a breach of any provision of this Section. In the event that either Party should seek an injunction hereunder, the other Party hereby waives any requirement for the submission of proof of the economic value of any Proprietary Information or the posting of a bond or any other security. In the event of a dispute between the Parties, the nonprevailing Party will pay all costs and expenses, including, but not limited to, reasonable attorneys’ fees, associated with resolving the dispute.
(i) Notwithstanding any expiration or termination of this Agreement, all of the Receiving Party’s nondisclosure and use obligations pursuant to this Agreement will survive for two (2) years after expiration or termination with respect to any Confidential Business Information received prior to such expiration or termination. With respect to Trade Secrets, nondisclosure and use obligations pursuant to this Agreement will continue for so long as such information continues to constitute a trade secret under applicable law; and with respect to Confidential Personal Information, for so long as required by applicable state and federal laws.
(j) The provisions set forth in this Section of the Agreement supersede any previous agreement between the Parties relating to the protection of any Proprietary Information as set forth herein.

7. Security.

(a) Licensor will maintain data backup procedures and information security standards and practices so as to reasonably ensure that any Company Data provided by or for Company is not lost and that it is not modified or disclosed to any other party or accessed by any other party without Company’s prior written approval. Such security measures will equal or exceed standard industry practices for similar vendors dealing with the same or similar type of Company Data.
(b) Licensor warrants to Company that Licensor will reasonably monitor, evaluate, and adjust its information security systems and procedures in response to relevant changes in technology, changes in the sensitivity of any Company Data, as reasonably determined by Licensor, and internal and external threats to information security. Licensor will promptly notify Company of: (a) any unauthorized possession, use, or knowledge or attempt thereof, of the dataprocessing files, transmission messages, or other Company Data by any person or entity that may become known; (b) the effect of such; and (c) the corrective action taken in response thereto.

8. Force Majeure and Disaster Recovery/Contingency Planning.

(a) Force Majeure. Subject to paragraph Error! Reference source not found. below and notwithstanding Licensor’s security, disaster recovery, and/or business continuity obligations set forth in this Agreement, neither Party will be liable for any failure or delay in the performance of its obligations under this Agreement to the extent such failure or delay both:

(i) is caused by any of the following: acts of war, domestic and/or international terrorism, civil riots or rebellions; quarantines, health related orders, embargoes, and other similar unusual governmental actions; extraordinary elements of nature or acts of God (other than localized fire, hurricane, tornado, or flood); and
(ii) could not have been prevented by the non-performing Party’s reasonable precautions or commercially accepted processes, or could not have been reasonably circumvented by the non-performing Party through the use of substitute services, alternate sources, work-around plans, or other means by which the requirements of a buyer of services substantively similar to the Services hereunder would be satisfied.

Events meeting both criteria set forth in clauses Error! Reference source not found. and 8(a)(ii) above are referred to individually and collectively as “Force Majeure Events.” The Parties expressly acknowledge that Force Majeure Events do not include vandalism, the regulatory acts of governmental agencies, labor strikes, or the non-performance of third parties or subcontractors relied on for the delivery of the Services, unless such failure or non-performance by a third party or subcontractor is itself caused by a Force Majeure Event. Upon the occurrence of a Force Majeure Event, the non-performing Party will be excused from any further performance or observance of the affected obligation(s) for as long as such circumstances prevail, and such Party continues to attempt to recommence performance or observance to the greatest extent possible without delay.

9. Warranties and Disclaimers.

(a) Licensor Warranties.

(i) Licensor warrants and represents to Company that, during the Term: (i) the Service and Work Product will be free in all material respects from substantial programming errors, bugs, and defects in manufacturing and workmanship; (ii) the Service and Work Product will conform to and operate in accordance with specifications and documentation; and (iii) any updates and/or modifications to the Service and Work Product will not materially degrade the Service and Work Product, or have an material adverse effect on the functionality of the Service and Work Product.
(ii) Licensor warrants and represents to Company that (i) it owns or has acquired rights to all proprietary rights related to the Service and Work Product necessary to grant the intellectual property license rights set forth in this Agreement; (ii) Company’s use of and exercise of its rights under this Agreement in the Service and Work Product will not infringe, misappropriate, or otherwise violate any patent, copyright, trademark, trade secret, and or any other intellectual property right of any third party; (iii) no third party has made any claim of infringement of intellectual property rights with respect to the Service and Work Product.; and (iv) Licensor has not and will not grant any rights to any third party that are in conflict with any of the rights granted to Company under this Agreement.
(iii) Licensor warrants and represents to Company that, at the time of delivery, the Service and Work Product will not contain any (i) viruses or other computer programming routines or defects that are intended to damage, detrimentally interfere with, or expropriate any system, data, or information; or (ii) any feature that does, or with the passage of time could, in any way impair the operation of the Service or Work Product now or hereafter.

(b) Company Warranties.
Company warrants and represents to Licensor that it owns or has acquired rights to all Proprietary Information it uses and/or stores within the Services, Software, and Work Product provided by Licensor.

Company will not use or access the Services, Software, and Work Product in a manner that contains, shares, distributes, etc…, any viruses or other computer programming routines or defects that are intended to damage, detrimentally interfere with, or expropriate any system, data, or information belonging to Licensor or others.

(c) Mutual Warranties. Each Party warrants and represents that it has the authority to execute, deliver, and perform its obligations under this Agreement, having obtained all required Board of Directors’ or other consents, and is duly organized or formed, and validly existing and in good standing under the laws of the state of its incorporation or formation.
(d) Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, LICENSOR MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

10. Indemnity.

For purposes herein, each Party, when providing indemnification, will be termed an “Indemnifying Party” and each Party, when receiving the benefits of indemnification, shall be termed an “Indemnified Party.” The term “Indemnified Party” will include the other Party’s respective shareholders, officers, directors, administrators, managers, employees, servants and agents, and successors and assigns.

(a) Mutual General Indemnity. For purposes of this mutual general indemnity, each Party (Company and Licensor) are an Indemnifying Party and conversely an Indemnified Party in relation to each other. Each Indemnifying Party will indemnify, defend, and hold each Indemnified Party harmless from and against any and all damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, actions, demands, lawsuits, costs, and expenses including, without limitation, reasonable attorneys’ fees, incurred by the Indemnified Party which arise out of or relate to (i) acts or omissions of gross negligence, willful misconduct, or fraud of the Indemnifying Party (including any of its Personnel), or (ii) third-party claims for property damage or personal injury that either (a) is caused by the acts or negligence of the Indemnifying Party or (b) a claim regarding the Indemnifying Party’s Personnel; provided, however, that the foregoing does not in any manner relieve either Party or any third party of its obligations under statutory workers’ compensation law and other laws regarding employer obligations as to such Party’s own employees. The Indemnifying Party’s obligations under this Section will be subject to the Indemnified Party providing the Indemnifying Party prompt notice of the event giving rise to an indemnity obligation, providing reasonable cooperation and assistance in the defense or settlement of any claim (at the Indemnifying Party’s sole cost and expense), and granting the Indemnifying Party control over the defense and settlement of the same. With respect to this Section, in the event the Indemnifying Party fails to provide a reasonably sufficient defense of an indemnified claim, the Indemnified Party may, after written notice to the Indemnifying Party, retain its own legal counsel and provide its own defense with respect to the indemnified claim, and the Indemnifying Party will reimburse the Indemnified Party for reasonable attorneys’ fees and expenses for such defense. The Indemnifying Party will have the right to consent to any settlement or judgment that is binding upon the Indemnifying Party. For purposes of this Section, “Personnel” is defined as such Party’s employees, servants and agents, independent contractors, and subcontractors.
(b) Infringement Indemnity. Licensor and Company each agree to indemnify the other as to intellectual property infringement claims as provided below.

(i) Licensor, at its expense, will defend, indemnify, and hold each Indemnified Party (Company) harmless from and against any and all damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys’ fees, against the Indemnified Party which relate to a claim, action, suit, or proceeding made or brought against the Indemnified Party by a third party alleging the infringement or violation of such third party’s registered patent, trade secret, copyright, or trademark (each an “STI Claim”) by way of Company’s intended use (i.e. using the Service or Work Product in the manner in which the Service and Work Product was designed for).
(ii) Company, at its expense, will defend, indemnify, and hold each Indemnified Party (Licensor) harmless from and against any and all damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys’ fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against the Indemnified Party which directly relate to any such claim, action, suit, or proceeding made or brought against the Indemnified Party by a third party alleging the infringement or violation of such third party’s registered patent, trade secret, copyright, or trademark (each a “Licensor Claim”) by way of Licensor’s use of any Company Data that Company provides to Licensor and Licensor uses in provision of this Agreement, the Service, or Work Product for Company.
(iii) Each Indemnifying Party’s obligation under this Section (b) is expressly subject to the Indemnified Party’s providing the Indemnifying Party with prior prompt notice of the applicable STI or Licensor Claim (as applicable), the Indemnified Party’s providing reasonable cooperation with and assistance to the Indemnifying Party in the defense and settlement of such STI or Licensor Claim (as applicable), and the Indemnified Party’s granting the Indemnifying Party sole control over the defense or settlement of the STI or Licensor Claim (as applicable). With respect to this Section (b), in the event the Indemnifying Party fails to provide a reasonably sufficient defense of an STI or Licensor Claim (as applicable), the Indemnified Party may, after written notice to the Indemnifying Party, retain its own legal counsel and provide its own defense with respect to such STI or Licensor Claim (as applicable), and the Indemnifying Party will reimburse the Indemnified Party for reasonable attorneys’ fees and expenses for such defense. The Indemnifying Party will have the right to consent to any settlement or judgment that is binding upon the Indemnifying Party.
(iv) In the event a court of competent jurisdiction makes a determination that the Service or Work Product infringes on or otherwise violates any third-party registered patent, trade secret, copyright, or trademark, or if Licensor determines that the Service or Work Product likely infringes or otherwise violates such third party’s foregoing intellectual property rights, Licensor, at its sole option and expense, will: (a) modify the allegedly infringing or violating portion of the Service or Work Product so as to make it noninfringing and non-violating, provided such modification does not materially alter the functionality of such Service or Work Product; (b) replace the allegedly infringing or violating Service or Work Product, or any portion thereof, with a non-infringing and/or non-violating product having reasonably equivalent functionality; (c) obtain the right for Company to continue using the allegedly infringing or violating portion of the Service or Work Product; or (d) revoke the license to the allegedly infringing or violating Service or Work Product and refund to Company all prepaid fees and fees incurred during the period Company is unable to use the Service or Work Product due to the infringement.
(v) Neither Indemnifying Party’s obligations under this Section (b) will apply to the extent of any STI or Licensor Claim (as applicable) resulting from:

(A) The Indemnified Party’s continued use of the infringing or violating Service, Work Product, or Company Data (as applicable), after receipt of notice of an STI or Licensor Claim (as applicable) and prior to resolution of the STI or Licensor Claim such that continued use of the Service, Work Product, or Company Data (as applicable) does not infringe or violate the rights of a third party as addressed in this Section (b).
(B) The Indemnified Party’s or a third party’s modification of the Service, Work Product, or Company Data (as applicable), made without Licensor’s consent, as to the Service and Work Product, or Company, as to Company Data, but only to the extent such modifications contributed to the infringement or violation of a third party’s rights with respect to the Service, Work Product, or Company Data (as applicable).
(C) Company’s use of the Service or Work Product, other than as permitted under this Agreement, or Licensor’s use of the Company Data, other than as permitted under this Agreement.

11. Limitation of Liability.

EXCEPT FOR (I) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, (II) EITHER PARTY’S CLAIMS AGAINST THE OTHER PARTY FOR ACTS OR OMISSIONS OF GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT OF THE OTHER PARTY (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBCONTRACTORS, SUCCSESSORS OR ASSIGNS, AS APPLICABLE), NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF INCOME, PROFITS OR DATA, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF, OR HAD REASON TO KNOW OF, THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT FOR (I) LICENSOR’S INDEMNIFICATION OBLIGATIONS, (II) COMPANY CLAIMS AGAINST THE LICENSOR FOR ACTS OR OMISSIONS OF GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT OF THE OTHER PARTY (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBCONTRACTORS, SUCCSESSORS OR ASSIGNS, AS APPLICABLE), LICENSOR’S TOTAL LIABILITY TO COMPANY UNDER THIS AGREEMENT WILL NOT EXCEED TWO TIMES THE FEES THAT COMPANY IS OBLIGATED TO PAY PURSUANT TO THIS AGREEMENT.

12. Term and Termination.

(a) Term of Agreement. This Agreement commences on the Effective Date and continues for the duration of Company’s use of the Software (“Initial Term”).
(b) Termination for Cause. Either Party may terminate this Agreement for cause: (a) upon thirty (30) days’ written notice of a material breach to the other Party, provided such breach remains uncured at the expiration of such notice period; or (b) immediately if the other Party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, which proceeding is not dismissed within sixty (60) business days.

Licensor may terminate this Agreement or suspend Service, Software, and/or access to System for cause if Company has failed to pay any balance owed to Licensor upon thirty (30) days written notice of the delinquent amount provided the amount owed hasn’t been paid within the thirty (30) days. Suspension may last until the amount owed is current plus a reasonable amount of time to reinstate Services, Software, and/or access to System.

Upon any termination for cause by Company, Licensor will refund Company any prepaid fees or expenses not yet earned by Licensor.

(c) Termination for Convenience. Company may terminate this Agreement, without cause and in its sole discretion, at any time upon written notice to Licensor after three (3) months following the Effective Date. If Company so terminates, Company agrees to pay to Licensor as liquidated damages the lessor of (a) the amount due by Company calculated over a monthly basis and multiplied by three (3), or (b) the amount due for the remainder of the Term of the Service. Licensor will refund Company any prepaid fees or expenses in excess of the liquidated damages and any other fees owing under the Agreement.

Licensor may terminate this Agreement, without cause and in its sole discretion, with thirty (30) day’s notice to Company. If Licensor so terminates, Licensor agrees to refund Company any prepaid fees or expenses for Services, Software, or Work Product not yet delivered or incurred after the date of termination.

13. Insurance.

(a) Requirements. Upon request of Company the Licensor agrees to provide Company with a certificate of insurance evidencing its insurance coverage.

14. General Provisions.

(a) Entire Agreement. This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto. No course of dealing or usage of trade will be used to modify the terms hereof.
(b) No Oral Modification. No modification, extension, or waiver of or under this Agreement will be valid unless made in writing. No written waiver will constitute, or be construed as, a waiver of any other obligation or condition of this Agreement.
(c) Unenforceability. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole; rather, this Agreement will be construed as if not containing the particular invalid or unenforceable provision or portion thereof, and the rights and obligations of the Parties hereto will be construed and enforced accordingly. In such event, the Parties will negotiate, in good faith, a replacement provision that would best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
(d) Notices.

All notices or reports permitted or required under this Agreement will be in writing and will be delivered by personal delivery, facsimile transmission, certified or registered mail (return receipt requested), electronic mail, or push notifications in the Software.

(e) Survival. Any and all provisions, promises, and warranties contained herein, which by their nature or effect are required or intended to be observed, kept, or performed after termination or expiration of this Agreement, will survive the termination or expiration of this Agreement and remain binding upon and for the benefit of the Parties hereto.
(f) Independent Contractor; Subcontractors. Licensor will perform this Agreement solely as an independent contractor, and not as Company’s agent or employee. Licensor has no authority to make any statement, representation, or commitment of any kind or to take any action binding upon Company, without Company’s prior written authorization.
(g) Disputes. The Parties agree that any dispute arising in connection with the interpretation of this Agreement, the performance of either Party under this Agreement, or otherwise relating to this Agreement will be treated in accordance with the procedures set forth in this Section, prior to the resort by either Party to arbitration or litigation in connection with such dispute. The dispute will be referred for resolution first to an executive for Company, and an executive for Licensor. Such procedure will be invoked by either Party presenting to the other a Notice of Request for Resolution of Dispute (a “Notice”) identifying the issues in dispute sought to be addressed hereunder. A telephone or personal conference of those executives will be held within ten (10) business days after the delivery of the Notice. In the event that the telephone or personal conference between these executives does not take place or does not resolve the dispute, either Party may move forward with litigation or if agreed to by both parties refer the dispute to binding arbitration.
(h) Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Utah, without reference to conflict of laws principles. Further, neither the United Nations Convention on Contractors for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement. The Parties agree that any legal action brought under or in conjunction with this Agreement will be brought in a federal or state court of appropriate jurisdiction in the State of Utah and venue will be proper in that court.
(i) Attorney Fees. The prevailing Party as determined by the court or arbitrators shall be entitled to an award for all of its reasonable costs and fees in resolving the matter which shall include but not be limited to attorney fees, court costs, expert fees, administrative fees, arbitrator fees, travel expenses, mediation expenses, out of pocket expenses, witness fees, etc..
(j) Exhibits. The following Exhibits are attached hereto and incorporated herein by this reference:

Exhibit “A”: Service Level and Support Services Agreement for Internet Based Product

Exhibit A. Service Level and Support Services Agreement for Internet Based Product

Licensor will provide the Service and Work Products to Company and operate the Service and Work Products seven (7) days a week, every week of the year, twenty-four (24) hours a day, not including scheduled maintenance time. Scheduled maintenance time will not exceed [five (5) hours] a month, and will take place during Non-Peak Hours. “Non-Peak Hours” will be the hours between [12:00 AM and 5:00 AM EST]. Licensor will provide at least forty-eight (48) hours prior notice of scheduled maintenance, and will provide notification of unscheduled outages within thirty (30) minutes thereafter. The Service and Work Products will Function and be available as provided in this Agreement with the Uptime specified below (with the exception of any scheduled maintenance performed by Licensor). “Uptime” will mean: each of the database, application, and web servers on an operational network that are capable of transmitting data. “Function” will mean: (a) the ability to execute HTTP services as defined by industry standards; (b) online with operational network capability; and (c) available to accept protocol compliant requests. Uptime will be calculated as follows: (Total Hours Available – Actual Outage Hours) divided by Total Hours Available. “Total Hours Available” means the total hours during the month less any hours designated for scheduled maintenance downtime (up to the maximum permitted herein). “Actual Outage Hours” means the total number of hours elapsed, beginning with the earlier of (a) when Licensor knew of an Outage or (b) when Licensor first notifies Company of an Outage, and ends with the time that the Outage has been resolved, as agreed upon by Licensor and Company. “Outage” means due to the Licensors Software or Services not being available, and for not fault of Company, the Company’s inability to gain access to the Service to perform online transactions or performance problems that result in Company’s inability to perform online transactions.

Technical Contacts. During the Term, Licensor will make available a technical point of contact for Company technical support inquiries.

Critical Problems. For purposes of this Agreement, “Critical Problems” will mean Severity Level 1 and Severity Level 2 problems defined in the Escalation Procedures hereto attached as Attachment 1. For all Critical Problems, Licensor will respond to any request for technical assistance from Company pursuant to the Escalation Procedures.

Deductions from Monthly Fees as a result of Service Level Non-Performance. If Licensor has failed to meet any of the Service Levels set forth herein, Company will be entitled to receive deductions from its monthly fee by making a request for a deduction at least but no later than twenty (20) days after the month has passed. The amount of the deduction is as set forth below in the form of a credit. Deductions are expressed as a percentage of Licensor’s total monthly charges during the month in which the service deduction applies, with each section being applied separately against the total monthly charges and then the totals of each chart aggregated.

Uptime. Licensor will provide an Uptime of 95% or better. If Licensor’s noncompliance is between [90% to 94.9%, Company may be credited five percent (5%) of its monthly fee. If noncompliance is from 80% to 89.9%, the credit will be ten percent (10%) of the monthly fee. There will be an additional two percent (2%) credit of the monthly fee for each additional one percent (1%) of noncompliance beyond 79.9%, up to a maximum credit equal to 100% of the then-applicable monthly fee.

Chronic Failure. In addition to any other remedy available to Company under this Agreement or otherwise, Company may terminate this Agreement and/or the applicable SOW/Service, effective upon written notice to Licensor, in the event the Uptime for a Service is less than the required Uptime set forth in this Exhibit in any three months during any consecutive six-month rolling period. In such an event, Licensor will issue Company a refund equal to the balance of any prepaid and unearned fees as of the effective date of such termination.

Escalation Procedures

Licensor Corporate Office: Licensor personnel are available to assist you during normal business hours. Monday – Friday, 8:00 am – 5:00 pm MST/MDT.

The Licensor Corporate Office is Company’s resource to discuss overall issues. If Company is ever unsure of whom to approach with a question or concern, Company should call the Corporate Office at (801)451-7000.

Shipping Address: 314 South 200 West, Farmington UT 84025.

Licensor Website: www.Cubiscan.com
Visit the Licensor website for corporate and other information.

Licensor Client Support Contact Information: Email: [email protected]

Client Support Line (phone): (801)451-0500
Electronic mail is the most efficient and preferred means for a client to request technical support. By sending technical problems to [email protected] Client will ensure the fastest response, as these email requests are monitored by our support staff seven (7) days a week.

If Client does not have access to email to report its technical problems, contact the Client Support Line. The Client Support Line is staffed seven (7) days a week, twenty-four (24) hours a day.

Licensor Escalation List: Client Support Line: (385)408-3899.

Client based issues are prioritized in the following manner:

Severity Level 1
The entire Service and Work Product are down or are failing to meet Service Level requirements and functionality.

Severity Level 2
Service and Work Product are significantly impacted by the outage. Generally, one or more parts of the Service and Work Product are down or significant network problems and/or latency.

Severity Level 3
The Service and Work Product are responding sub-optimally.

Severity Level 4
Company Requests – i.e., HTML Change Requests

The table below identifies example time frames, and whom the trouble is escalated to based upon priority.

Escalation Notification for Issue Resolution
Action Level:

Time frames for escalations given above are and the assigned individual may, at any time, escalate to the next level when it appears appropriate to do so.