Software as a Service Agreement

This Software as a Service Agreement is between Smartwyre, Inc., a Delaware corporation (“Company” or “Smartwyre”) and the customer identified in the Initial Order Form (“Customer”) (each a “Party” and collectively, the “Parties”).  This Software as a Service Agreement, the Exhibits, the Initial Order Form and any other Order Form(s), statements of work (“SOW”) or other documents agreed by the Parties and made a part hereof shall collectively be the “Agreement.”  This Agreement will become effective on the date the Initial Order Form has been submitted by Customer and accepted by Company (the “Effective Date”).

WHEREAS, Company provides access to its software-as-a-service offerings to its customers;

WHEREAS, Customer desires to access certain software-as-a-service offerings described herein, and Company desires to provide Customer access to such offerings, subject to the terms and conditions set forth in this Agreement, the Initial Order Form and any subsequent Order Form, statements of work or other exhibits or documents attached hereto.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions. Capitalized terms will have the meanings set forth in this Section 1, or where they are first used in this Agreement.

   • “Access Protocols” means any user name, identification number, password, access code, license or security key, security token, PIN, or other security code, method, technology, or device, technical specifications, connectivity standards or protocols, or other relevant procedures, used alone or in combination, as may be necessary to verify Customer Systems, Customer or any Authorized Users’ identity and authorization to access and use the Company Solution the Services.

   • “Authorized User” means Customer’s employees, consultants, contractors, and agents who are authorized to access and use the Company Solution pursuant to Customer’s rights under this Agreement and for whom access to the Company Solution has been purchased by Customer.

   • “Company Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Company or its designee to disable Customer’s or any Authorized User’s access to or use of the Company Solution automatically with the passage of time or under the positive control of Company or its designee.

   • “Company Solution” or “Smartwyre Solution” means the Company’s proprietary software-as-a-service application identified in the Initial Order Form or a subsequent Order Form that allows Authorized Users to access and use certain features and functions through a web interface, API or mobile application.

   • “Company Personnel” means all individuals involved in the performance of the Company Solution or Services as officers, employees, agents, representatives, or independent contractors of Company.

   • “Company Systems” ” means the information technology infrastructure used by or on behalf of Company in providing the Company Solution or performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Company or through the use of third-party services.

   • “Customer Content” means information, data, and other content, including Personal Information, in any form or medium, that is collected, downloaded, transmitted, provided by, or otherwise received, directly or indirectly, from or on behalf of a Customer, an Authorized User, or Customer’s Systems for use by Company to provide the Company Solution or Services.

   • “Customer Personnel” means all individuals involved in Customer’s and its Authorized Users’ access to and use of the Company Solution or Services as officers, employees, agents, representatives, or independent contractors of Customer.

   • “Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), networks, and business systems, including, but not limited to, Customer’s accounting, ERP or CRM business systems, whether operated directly by Customer or through the use of third-party services

   • “Documentation” means the documents, technical materials, and instructions provided by Company to Customer in any form or medium describing the functionality, features, use and operation of the Company Solution, including, without limitation, the minimum Customer Systems and connectivity configuration(s) required to allow Customer and Authorized Users to access and use the Company Solution.

   • “Error” means a reproducible failure of the performance of the Company Solution to substantially conform to the Documentation.

   • “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data accessed, stored or processed by the Company Solution; or (b) prevent Customer or any Authorized User from accessing or using the Company Solution or Company’s Services as intended by this Agreement.

   • “Initial Order Form” means the first Order Form for the Company Solution submitted by Customer and accepted by Company.

   • “Intellectual Property Rights” means any and all now known or hereafter existing, registered and unregistered, granted, or applied for (a) rights associated with works of authorship, including copyrights, mask work rights, moral rights and database protection; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.

   • “Order Form” means the Initial Order From and any order form subsequent thereto submitted by Customer and accepted by Company which references this Agreement or the Customer Solution.

   • “Personal Information” means information that Customer or an Authorized User provides or allows Company to access, or information which Company creates or obtains on behalf of Customer, in accordance with this Agreement that: (i) directly or indirectly identifies an individual; or (ii) can be used to authenticate an individual, including sensitive Personal Information as defined by Applicable Law. Customer’s and Authorized Users’ business contact information is not by itself Personal Information.

   • “Product Regulatory Data” means product regulatory data Company obtains from a third party data provider (“TP Data Provider”) for the purpose of allowing Customer and Authorized Users to access and use such data through the Company Solution. Terms and Conditions related to Product Regulatory Data are attached hereto as Exhibit A.

   • “Professional Services” means professional services provided by Company to Customer which are not included as part of the Company Solution or standard support services, as described in a SOW or Order Form as further described in Section 7.

   • “Reports” means results, output, logs, compilations, displays, and other reports or information generated by use of the Company Solution and Services.

   • “Services” means any services provided by Company to Customer or an Authorized User under this Agreement as set forth in an Order Form or SOW, including, but not limited to, provision of the Company Solution and Professional Services.

   • “Trading Partner(s)” means Customer’s various suppliers, distributors and retailers of chemical, seed, fertilizer, fuel, equipment, financing, insurance and other agricultural-related products, or any other third party whose content and information Customer or its Authorized Users receive from that Trading Partner or provide to Company or otherwise make available to be managed using the Company Solution.

   • “Trading Partner Content” means content and information regarding a Trading Partner’s SKU’s, discounts, rebates and incentives, transaction information, inventory data or other business content provided to or submitted by, or on behalf of, Customer or a Trading Partner for use with the Company Solution.

2. Provision of Services.  Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement at all times during the Term and Customer’s timely payment of all fees set forth in the Order Form(s) (“Fees”), the Parties agree as follows:

   • Use Licenses. Company hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 13 7ᵗʰ) right to access and use the features and functions of the Company Solution and Services at the levels of usage and data storage ordered by Customer during the Term, solely for Customer’s internal use by Authorized Users in accordance with the terms and conditions herein. Company further grants to Customer (a) a non-exclusive, non-sublicensable, non-transferable  license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Company Solution and (b) a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 13 7ᵗʰ), non-sublicensable license to use the Reports solely for Customer’s internal business purposes.

   • Access Protocols. Company will provide Customer with access to the Company Solution.  On or as soon as reasonably practicable after the Effective Date, the Parties will work together to coordinate the Customer Systems connections and Access Protocols necessary to allow Customer and its Authorized Users to access the Company Solution and features and functions thereof at the levels of usage and data storage purchased by Customer.

   • Unauthorized Access. Customer will ensure that only Authorized Users will access the Company Solution. Customer is responsible for maintaining the confidentiality of Customer’s and all Authorized Users’ Access Protocols, and is solely responsible for all activities that occur through the use thereof.  Customer agrees (a) not to allow unauthorized third parties to use any Customer Access Protocols to access the Company Solution, and (b) to notify Company promptly of any actual or suspected unauthorized use of Customer’s or any Authorized User’s Access Protocols.  Company reserves the right to change or update the Access Protocols in Company’s sole discretion from time to time.  Company also reserves the right to suspend or terminate by use of a Company Disabling Device or any other lawful means any Access Protocols that Company reasonably determines may have been used by an unauthorized third party.

   • Support Services. Subject to the terms and conditions of this Agreement, Company will exercise commercially reasonable efforts to (a) provide customer support for the use of the Company Solution by Authorized Users during Company’s standard customer support schedule of operation, and (b) keep the Company Solution operational and available for use by Customer and Authorized Users, in each case in accordance with Company’s standard support service policies and procedures, unless the Parties have mutually agreed to a higher level of support Services in an SOW or Order Form (each a “Service Level Agreement” or “SLA”). Unless Customer pays Fees pursuant to an SLA, this Agreement does not entitle Customer to any SLA or minimum support Services or service levels.   Customer’s sole and exclusive remedy for Company’s failure to comply with an agreed SLA is the remedy specified in the applicable SLA.

   • Hosting.  Company will, at its own expense, host the Company Solution, the Customer Content uploaded or transferred to the Company Solution, and the Product Regulatory Data, provided that nothing herein will be construed to require Company to provide, or bear any responsibility with respect to, any telecommunications or Customer Systems required by Customer or any Authorized User to access the Company Solution from the internet.

   • Changes. Company reserves the right, in its sole discretion, to make any changes to the Company Solution, Services and Documentation that it deems necessary or useful to: (a) maintain or enhance: (i) the features, functions, quality or delivery of the Company Solution; (ii) the competitive strength of or market for the Company’s Services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with Applicable Law.

3. Use of the Company Solution.

   • Usage Levels. Subject to the terms and conditions of this Agreement, Company will make the Company Solution available to Customer solely for Customer’s internal business purposes and in accordance with the limitations (if any) on the number or type of Authorized Users, usage and data storage set forth in the Order Form(s).  Customer is permitted to access and use (a) the features and functions of the Company Solution at the level ordered by Customer in accordance with the Documentation, and (b) the Documentation solely to support Customer’s use of the Company Solution.  Customer may permit any Authorized Users to access and use the features and functions of the Company Solution as contemplated by this Agreement.

   • Limitations. Customer acknowledges and agrees that the Reports provided hereunder by Company are purely predictive in nature, are based on the Customer Content, Trading Partner Content, and Product Regulatory Data and Company’s interpretations thereof, and that Company does not provide financial or accounting advice or make revenue recognition or other accounting decisions.  Customer is solely responsible for determining and obtaining any discounts, rebates and incentives it is eligible, or may be eligible, to receives from a Trading Partner, and Customer’s financial decisions and accounting determinations based thereon.

   • Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Company Solution, Reports or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Company Solution, Reports or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Company Solution or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Company Solution, in whole or in part; (e) interfere in any manner with the operation of the Company Solution or the Company Systems used to operate the Company Solution; (f) modify, copy or make derivative works based on any part of the Company Solution or Documentation; (g) access or use the Company Solution to build a similar or competitive product or service; (h) attempt to access the Company Solution through any unapproved interface; (i) bypass or breach any security device or protection used by the Company Solution; (j) input, upload, transmit, or otherwise provide to or through the Company Solution or Company Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code; (k) access or use the Company Solution, Documentation or Reports in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party or that violates any Applicable Law; or (l) otherwise use the Company Solution, Reports, or Documentation in any manner that exceeds the scope of use permitted by this Agreement or in a manner inconsistent with Applicable Law, the Documentation, or this Agreement.  Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Company, its licensors, or any TP Data Provider on any Documentation, Report, or any copies thereof.

   • Ownership. The Company Solution and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Company and its licensors and other service providers and suppliers.  All rights in and to the Company Solution and Documentation not expressly granted to Customer in this Agreement are reserved by Company, its licensors, service providers, suppliers, and TP Data Providers.  Except as expressly set forth in this Agreement, no express or implied license or right of any kind is granted to Customer regarding the Company Solution or Documentation, or any part thereof.

   • Feedback. Customer hereby grants to Company a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Company Solution and Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or Authorized Users relating to the Services.  Company will not identify Customer as the source of any such feedback.

   • Product Regulatory Data. If set forth in an Order Form, Customer will have access to Product Regulatory Data.  Access to and use of the Product Regulatory Data is subject to the terms set forth in Exhibit A.

4. Fees and Expenses; Payments

   • Fees. In consideration of the access and use rights granted to Customer and the Services performed by Company under this Agreement, Customer will pay to Company the Fees and any agreed expenses in full, without reduction, deduction, set-off or withholding for any reason.  Except as otherwise provided in an Order Form or SOW, all Fees are invoiced quarterly, in advance, beginning with the Effective Date. If the Effective Date does not fall on a month-end or month-starting date, the first invoice will reflect Fees from the Effective Date through the end of the first month and be invoiced on the Effective Date.  The first invoice is due and payable on the earlier date of 15 days after the Effective date or the date the Customer is provided with Access Protocols for the Company Solution.  All subsequent invoices are invoiced quarterly, with invoices delivered to Customer 30 days in advance of each 3 month period and then payable by Customer within thirty (30) days of the date of the invoice. Company reserves the right to modify the Fees payable hereunder upon written notice to Customer at least ninety (90) days prior to the end of the then-current Term.  Company will be reimbursed for expenses that are expressly provided for in an Order Form or SOW or that have been approved in advance in writing by Customer.  Company will furnish such documentation for authorized expenses as Customer may reasonably request.  Invoices for Fees and expenses will be paid by Customer to Company at such address or account as Company may specify from time to time, in US dollars, via check, ACH, direct debit, or wire transfer unless another payment method is agreed by Company.  Company reserves the right (in addition to any other rights or remedies Company may have) to discontinue the Company Solution and suspend all Authorized Users’ and Customer’s access to the Services by use of a Company Disabling Device or any other lawful means if any Fees are more than fifteen (15) days overdue until such amounts are paid in full.  Customer will provide complete, accurate and up-to-date Customer billing and contact information to Company at all times.

   • Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Company’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees, the provision of the Services, or the licenses granted to Customer hereunder.  Customer will make all payments of Fees to Company free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Company will be Customer’s sole responsibility, and Customer will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as the Company may reasonably request, to establish that such taxes have been paid.

   • Fee Disputes, Interest and Collection. If Customer reasonably disputes any invoice, Customer must notify Company, in writing, of the reason for the dispute, and provide supporting documentation, within 15 days of receiving the invoice. If Customer does not dispute an invoice within the notice period, Customer shall be deemed to accept the invoice.  Customer shall pay all invoices when due, even if Customer has sent Company a notice of dispute.   The Parties agree to negotiate in good faith to resolve any disputed invoice.  If the Parties mutually agree that an invoice is incorrect and Customer overpaid Fees or expenses, Company will credit Customer for the overpayment on the next invoice.  If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies, any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid. Customer shall reimburse Company for all costs incurred by Company in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.

5. Customer and Trading Partner Content

   • Rights. Customer is solely responsible for any and all obligations with respect to the completeness, accuracy, and quality of all Customer Content and Trading Partner Content (collectively, the “Content”)  provided to, or assessable by, Company, Customer or Authorized Users in accordance with this Agreement. Customer shall be solely responsible for obtaining all Trading Partner or other third party licenses, consents, and permissions necessary or needed for Company to collect, store, share and use the Content as part of the Company Solution and Services in accordance with the Agreement. Customer grants Company a non-exclusive, worldwide, royalty-free and fully paid license (a) to use Customer Content as necessary for purposes of providing and improving the Company Solution and Services, (b) to use the Customer Content in an aggregated and anonymized form to: (i) improve the Company Solution and Services, and Company’s related products and services; (ii) perform and provide analytics and benchmarking; and (iii) generate and disclose statistics regarding the use and benefits of the Company Solution and Services, provided, however, that no statistics that are specific to Customer or which identify Customer will be disclosed to third parties without Customer’s consent.  The Customer Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer.  All rights in and to the Customer Content not expressly granted to Company in this Agreement are reserved by Customer.

   • Data Exchange. Using the Company Solution, Customer may (a) elect to share certain Customer Content with Trading Partner it selects and authorizes to receive or access such Customer Content; and (b) access certain Trading Partner Content directly from Trading Partners that permit their Trading Partner Content to be accessed by authorized Customers via the Company Solution. Customer acknowledges and agrees that (x) Company provides such data exchange functionality as part of the Company Solution as a convenience to Customer; (y) Company is not responsible, and shall bear no liability, for Trading Partner’s access to and use of Customer Content and Customer’s access to and use of Trading Partner Content through the Company Solution; and (z) that Customer is solely responsible for obtaining all necessary consents, authorizations, or any other agreement with Trading Partners with respect thereto.

   • Customer Warranty. Customer represents and warrants that Content will not (a) infringe upon any third party’s rights; (b) misappropriate any trade secret or other Confidential Information; (c) be unlawful; (d) contain any Hazardous Code; or (e) otherwise violate the rights of any individual or third party.

6. Data Security.

   • Content. Customer shall be solely responsible for all modifications, additions or other changes to and/or deletions of Content and the physical, administrative and technical controls and security of all passwords and other Access Protocols required to control the Content and access to the Company Solution.  The Company Solution and Services do not replace the need for Customer to maintain regular data backups or redundant data archives. Customer will have the ability to export Reports and Content out of the Company Solution and is encouraged to make its own back-ups of the Reports and Content.

   • Company Services. Company and its service providers have implemented commercially reasonable data security measures designed to keep the Company Systems and the Company Solution secure from accidental loss and from unauthorized access, use, alteration, and disclosure. The Company employs security measures but cannot guarantee the security of Content transmitted to or from, or stored in, the Company Solution.  COMPANY HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CONTENT OR REPORTS.

7. Professional Services. If the Parties have agreed Company will provide Professional Services, not included as part of the Company Solution and agreed Support Services, the details and Fees for such Professional Services will be documented in a written SOW or Order Form.  The SOW or Order Form will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the applicable Fees, reimbursable expenses and payment schedule for the Professional Services.  Each SOW or Order Form will incorporate the terms and conditions of this Agreement.  To the extent that a conflict arises between the terms and conditions of an SOW or Order From and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the SOW or Order Form expressly states that it supersedes specific language in the Agreement.

8. Company’s Warranties and Disclaimers.

   • Limited Warranty. Company warrants that it will provide Professional Services in a professional and workmanlike manner substantially consistent with general industry standards.  If Company has agreed to provide, and Customer has paid all Fees for, a Service Level Agreement, and there is a material failure by Company to comply with the agreed SLA, Customer’s sole and exclusive remedy will be that Company will provide the remedy (if any) related to the failure specified in the SLA. If Company provides Professional Services that do not comply with the limited warranty specified above, if Customer notifies Company in writing of the breach within thirty (30) days following performance of the defective Professional Services, specifying the breach in reasonable detail, Company will, as Customer’s sole and exclusive remedy, re-perform the Professional Services which gave rise to the breach or, at Company’s option, refund the Fees paid by Customer for the Professional Services which gave rise to the breach.  Company further warrants to Customer that Company will use commercially reasonable efforts to operate the Company Solution free from Errors during the Term, provided that such warranty will not apply to Errors to the extent they result, in whole or in part, from (a) any use of the Company Solution not in accordance with this Agreement or as specified in the Documentation; (b) any use of the Company Solution in combination with Customer Systems, or other products, equipment, software, data, materials or content not supplied by Company; (c) any modification of the Company Solution by any person other than Company or its authorized agents; or (d) Customer Content, Trading Partner Content or Product Regulatory Data.  Provided that Customer notifies Company in writing of the Error during the Term, Company will, as Customer’s sole and exclusive remedy, provide the support Services described in Section 2 4ᵗʰ to correct the Error without additional cost to Customer.  If the Error cannot be corrected within a commercially reasonable amount of time, Company may, in its discretion, modify the Company Solution and Documentation as necessary to eliminate the Error.

   • Disclaimer.  THE LIMITED WARRANTIES SET FORTH IN SECTIONS 2 4ᵗʰ AND 8 1ᵗʰ ARE MADE FOR THE BENEFIT OF CUSTOMER ONLY.  EXCEPT AS EXPRESSLY PROVIDED IN SECTION 2 4ᵗʰ AND 8 1ᵗʰ, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CUSTOMER SOLUTION, SERVICES, REPORTS, DOCUMENTATION AND PRODUCT REGULATORY DATA ARE PROVIDED “AS IS,” AND COMPANY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, DATA PRESERVATION, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.  COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, REPORTS, OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH CUSTOMER SYSTEMS, OR THIRD PARTY SERVICES, OR BE SECURE, ACCURATE, COMPLETE, OR FREE OF HARMFUL CODE.  COMPANY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE COMPANY SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.  COMPANY SHALL NOT BE RESPONSIBLE FOR, AND IS EXPRESSLY RELIEVED OF RESPONSIBILITY FOR ITS REASONABLE RELIANCE ON, ANY INACCURATE OR INCOMPLETE CONTENT PROVIDED TO IT HEREUNDER.  The company solution may be subject to limitations, delays and other communications problems inherent in telecommunication systems, and the use of the internet, and Company is not responsible for any delays, delivery failures, data loss, or other damages resulting from such problems.

9. Limitation of Liability.

   • Types of Damages.  EXCEPT FOR CLAIMS RELATED TO THE PARTIES’ OBLIGATIONS REGARDING CONFIDENTIAL INFORMATION, INTELLECTUAL PROPERTY RIGHTS, AND INDEMNIFICATION, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA, CONTENT, REPORTS, OR DOCUMENTATION, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

   • Amount of Damages.  THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO COMPANY DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.  IN NO EVENT WILL COMPANY’S SERVICE PROVIDERS, LICENSORS, OR SUPPLIERS HAVE ANY LIABILITY TO CUSTOMER ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.  NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE CUSTOMER’S OBLIGATION TO PAY FEES OWED TO COMPANY HEREUNDER, OR EITHER PARTY’S LIABILITY TO THE OTHER PARTY RELATED TO BREACH OF ITS OBLIGATIONS REGARDING CONFIDENTIALITY, INTELLECTUAL PROPERTY RIGHTS, OR INDEMNIFICATION, OR FOR THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS PERSONNEL.

   • Basis of the Bargain. The Parties agree that the limitations of liability set forth in this Section 9 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy.  The Parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the Parties.

10. Confidentiality.

    • Confidential Information. “Confidential Information” means any nonpublic information of a Party (the “Disclosing Party”), disclosed in any form or medium, orally, or by observation, that is either identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving Party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party.  Confidential Information includes, but is not limited to, information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, vendors, suppliers, pricing, costs and fees.  The Services and Documentation, as they may be modified, enhanced, or improved from time to time during the Term, will be considered Confidential Information of Company.

    • Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement.  The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those Company Personnel or Customer Personnel who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information.  In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.  At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.

    • Exceptions. The confidentiality obligations set forth in this Agreement will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party or its Personnel; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by Personnel of the Receiving Party who had no access to the Confidential Information of the Disclosing Party.  In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party, at Disclosing Party’s expense, if the Disclosing Party seeks an appropriate protective order.

11. Indemnification.

    • By Company. Company shall indemnify, defend, and hold harmless Customer, Customer Personnel, and Customer equity holders, directors and managers  (each, a “Customer Indemnitee”) from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder (collectively “Losses”) incurred by a Customer Indemnitee to the extent that such Losses result from any claim by a third party that Customer’s use of the Company Solution (excluding Content and Product Regulatory Data) in accordance with this Agreement infringes or misappropriates such third party’s United States Intellectual Property Rights.   If any portion of the Company Solution becomes, or in Company’s opinion is likely to become, the subject of a claim of infringement, Company may, at Company’s option: (a) procure for Customer the right to continue using the Company Solution; (b) replace or modify, in whole or in part, the Company Solution so that it becomes non-infringingwithout materially impairing the functionality of the Company Solution; or (c)  terminate this Agreement and refund any unused prepaid Fees for the remainder of the Term then in effect, and upon such termination, Customer will immediately cease all use of the Company Solution and Documentation.  Notwithstanding the foregoing, Company will have no obligation under this Section 11 1ᵗʰ or otherwise with respect to any third party infringement claim based upon (i) any use of the Company Solution not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Company Solution in combination with Customer Systems, other products, equipment, software, data or content not supplied by Company; or (iii) any modification of the Company Solution by any person other than Company or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”).  This Section 11 1ᵗʰ states the sole and exclusive remedy of Customer and the entire liability of Company and Company Personnel, directors, or shareholders of Company, for infringement claims and Losses.

    • By Customer. Customer shall indemnify, defend, and hold harmless Company, Company Personnel, and Company equity holders, directors and managers (each, a “Company Indemnitee”) from and against any and all Losses incurred by such Company Indemnitee resulting from any claim by a third party related to  (a) the use of Content in accordance with this Agreement; (b) Customer’s  or an Authorized User’s breach of this Agreement; (c) an Exception; or (d) gross negligence or willful misconduct by Customer, Customer Personnel, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.  This Section 11 2ᵗʰ states the sole and exclusive remedy of Company and Company Indemnitees and the entire liability of Customer, Customer Personnel, directors, or shareholders of Customer, for the claims and Losses described herein.

    • Procedure.  The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the applicable Customer Indemnitee or Company Indemnitee (each an “Indemnitee”) will promptly notify the indemnifying Party in writing of any threatened or actual claim or Losses; (b) the indemnifying Party will have sole control of the defense or settlement of all claims and Losses; and (c) the Indemnitee will cooperate with the indemnifying Party, at the indemnifying Party’s expense, to facilitate the settlement or defense of any claim. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The indemnifying Party shall not settle any claim on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed.

12. Term And Termination.

    • Suspension or Termination of Services. Company may, directly or indirectly, by use of a Company Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any Trading Partner’s access to or use of all or any part of the Company Solution or Documentation, without incurring any resulting obligation or liability, if: (a) Company receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Company to do so; or (b) Company believes, in its good faith discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Company Solution or Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with the Documentation; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with the Company Solution or Services; or (iii) this Agreement expires or is terminated. This Section does not limit any of Company’s other rights or remedies, whether at law, in equity, or under this Agreement.

    • Term.  This Agreement will begin on the Effective Date and continue in full force and effect as long as any Order Form or SOW remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”).  The term of an Order Form or SOW will begin on the effective date of the Order Form or SOW and continue in full force and effect for the longer of one (1) year or the period of time stated therein, unless earlier terminated in accordance with the Agreement.  Order Forms will automatically renew for additional terms of one (1) year unless either Party gives written notice of non-renewal to the other Party at least sixty (60) days prior to the expiration of the then-current Term. SOW’s will not automatically renew unless specifically agreed by the Parties.

    • Termination for Breach. Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. Company may terminate this Agreement immediately upon notice to Customer if Customer or any Authorized User breaches Company’s Intellectual Property Rights or violates the Access Protocols.

    • Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each Party will comply with the obligations to return all Confidential Information of the other Party, as set forth in the Section 10; and (c) any Fees or other amounts owed to Company under this Agreement will become immediately due and payable.  Any rights or obligations of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement for any reason.

    • Reports.  For twenty (20) days after the termination or expiration of this Agreement for reasons other than Customer’s breach of this Agreement, Company will make Reports available to Customer through the Company Solution on a limited basis, unless Company is instructed by Customer to delete Content or Reports before that period expires.

13. Miscellaneous.

    • Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Colorado, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.  Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Denver, Colorado for any lawsuit filed there against Customer by Company arising from or related to this Agreement.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

    • Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of the other Party’s Confidential Information or Intellectual Property Rights would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

    • Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other Party arising out of or related to this Agreement, the prevailing Party is entitled to recover its reasonable attorneys’ fees and other costs related to such action from the non-prevailing Party.

    • Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data or Documentation acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.

    • Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

    • Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

    • No Assignment. Neither Party will assign or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other Party, and any attempted assignment or transfer in violation of the foregoing will be null and void; provided, however, that either Party may assign this Agreement in connection with a merger, acquisition, or sale of all or substantially all of its assets, without the consent of the other Party.  The terms of this Agreement will be binding upon the Parties and their respective successors and permitted assigns.

    • Compliance with Law. Customer will comply, and ensure that Authorized Users comply, at all times with all applicable international and domestic laws, ordinances, regulations, and statutes (collectively “Applicable Law”) related to its performance of this Agreement and its access and use of the Company Solution, Reports and Documentation. Company will comply at all times with Applicable Law related to its provision of the Company Solution and other Services pursuant to this Agreement.

    • Force Majeure.  Any delay in the performance of any duties or obligations of either Party (except the payment of Fees or other amounts owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, telecommunications or internet interruptions, Acts of God, fire, earthquake, flood, government or regulatory action, epidemics, pandemics, or any other event beyond the reasonable control of such Party, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the cause of such delay and to resume performance as soon as possible.

    • Independent Contractors. Customer’s relationship to Company is that of an independent contractor, and neither Party is an agent or partner of the other.  Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Company.

    • No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

    • Notices. All notices required or permitted under this agreement must be delivered in writing, if to Company, by emailing info@smartwyre.comand if to Customer by emailing the Customer Personnel identified on the applicable Order Form, provided, however, that with respect to any notices relating to breaches of this Agreement or termination of this Agreement, a copy of such notice will also be sent in writing to the other Party at the address listed on the Initial Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service.  Each Party may change its email address and/or mailing address for receipt of notice by giving notice of such change to the other Party.

    • Entire Agreement. This Agreement is the final, complete and exclusive agreement of the Parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the Parties with respect to such subject matters.  No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Company.

Exhibit A

Smartwyre Saas Agreement
Product Regulatory Data
Additional TP Data Provider Terms and Conditions

The product information displayed in the Product Regulatory Data is provided ” AS IS,” without warranty express or implied, and is provided for information purposes only.  Although the TP Data Provider endeavors to present current and accurate information, search results contain information created and maintained by a variety of external sources that may not be current or complete.  The TP Data Provider does not control, monitor or guarantee the timeliness or accuracy of the information provided by such external sources.  Inclusion of a product in the Product Regulatory Data does not constitute endorsement of that product.  It is Customer’s responsibility to review the official manufacturer product label information, applicable regulations, and otherwise research the accuracy, completeness and usefulness of all information, claims and opinions contained in the Product Regulatory Data.  In no event will the Company, TP Data Provider or its data providers be responsible or liable directly or indirectly for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any information contained in the Product Regulatory Data, including information that is outdated or incorrect.  The Product Regulatory Data is provided under a limited, non­exclusive license, and may not be redistributed or used to develop a stand-alone database.  Further, the Product Regulatory Data may include materials covered by registered copyrights and trademarks.  Customer agrees to honor all Intellectual Property Rights and display copyright and trademark notices as required by TP Data Provider.  All rights not expressly granted herein are reserved by the owners of the Intellectual Property Rights.  In no event shall the liability of any TP Data Provider, its officers, directors, employees, agents or representatives exceed $100 in the aggregate.

• Features or capabilities, Company will immediately notify Customer and provide an estimate of the time required for necessary development.

• Customer Requirements. Customer is responsible for maintenance and management of its computer network(s), servers, and software, and any equipment or services related to maintenance and management of the foregoing.  Customer is responsible for correctly configuring its systems in accordance with any instructions provided by Company, as may be necessary for provision of access to the features and functions of the Company Solution and Services.