SMARTPM TECHNOLOGIES, INC

SOFTWARE-AS-A-SERVICE

Terms and Conditions

 

1. DEFINITIONS. Certain capitalized terms, not otherwise defined herein, have the meanings set forth or cross-referenced in this Section 1.

1.1  “Application Service” and “Application Software” will mean the technology and application software set forth and described on the Purchase Order.

1.2 “Application Documentation” will mean text and/or graphical documentation, whether in electronic or printed format, that describe the features, functions and operation of the Application Service, (“functionality”) whether such functionality is provided in a scheduled release which materials are designed to facilitate use of the Application Service and which are provided by Company to Customer in accordance with the terms of this Agreement.

1.3 “Application IP” will mean the Application Service, the Application Documentation, and any and all intellectual property provided to Customer (and/or any applicable Authorized End Users) in connection with the foregoing.

1.4 “Customer”  will mean a business organization or an authorized end user who has an Application Software License in good standing.

1.5 “Authorized End User” shall mean, collectively, any individual employees, agents, or contractors of Customer accessing or using the Application Service under the rights granted to Customer pursuant to this Agreement; and through the Web Interface, under the rights granted to Customer pursuant to this Agreement.

1.6 “Confidential Information” will mean all written or oral information, disclosed by either Party to the other, related to either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential.  Without limiting the foregoing, for purposes of this Agreement, the Application Documentation will be deemed Confidential Information of Company.

1.7 “Customer Content” will mean the data, information and content provided by Customer in connection with the Application Service.

1.8 “Project” will mean each individual development or construction project for which Customer is utilizing the Application Service to manage or analyze the work, output, personnel and/or performance under such project, as further described on the Purchase Order.

1.9 “Scheduled Activity” will mean an activity, action or task associated with a Project that is tracked or otherwise managed within the Application Service.

1.10 “Web Interface” will mean the website or websites through which Customer’s Authorized End Users may access the Application Service in accordance with the terms of this Agreement.

2. ACCESS AND USE.

2.1  Provision of Access.  Subject to the terms and conditions contained in this Agreement, Company hereby grants to Customer a non-exclusive, non-transferable right to access the features and functions of the Application Service only for the duration of the applicable Project, during the Term, solely for use by Authorized End Users in accordance with the terms and conditions herein.  Such use shall be limited to use of the Application Service for the benefit of, or in relation to, the operation of Customer’s business.  As soon as reasonably practicable after configuration of the application Company shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Application Service (the “Access Protocols”).  Company shall also provide Customer the Application Documentation to be used by Customer in accessing and using the Application Service.  Customer acknowledges and agrees that, as between Customer and Company, Customer shall be responsible for all acts and omissions of Authorized End Users, and any act or omission by an Authorized End User which, if undertaken by Customer, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer.  Customer shall undertake reasonable efforts to make all Authorized End Users aware of the provisions of this Agreement as applicable to such Authorized End User’s use of the Application Service, and shall cause Authorized End Users to comply with such provisions.

2.2  Application Documentation License.  Subject to the terms and conditions contained in this Agreement, Company hereby grants to Customer a non-exclusive, non-transferable right and license to use the Application Documentation during the Term for Customer’s internal purposes in connection with its use of the Application Service as contemplated herein.

2.3  Usage Restrictions.  Customer will not, and will not permit any Authorized End Users to, (i) copy or duplicate any of the Application IP;  (ii) copy or duplicate any of the features or functionality of the Application Service; (iii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of any of the Application IP is compiled or interpreted, or apply any other process or procedure to derive the source code of any software included in the Application IP, or attempt to do any of the foregoing, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such source code; (iii) modify, alter, tamper with or repair any of the Application IP, or create any derivative product from any of the foregoing, or attempt to do any of the foregoing, except with the prior written consent of Company; (iv) interfere or attempt to interfere in any manner with the functionality or proper working of any of the Application IP; (v) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within any of the Application IP; or (vi) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under Sections 2.1.  Customer will not use any of the Application IP except in compliance with Company’s obligations to any third party with respect thereto incurred prior to the Effective Date, including without limitation complying with those terms set forth on Schedule B, provided that Company has notified Customer of such obligations.  Customer will ensure that its use of any of the Application IP complies with all applicable laws, statutes, regulations or rules, including any export and import requirements and will not use or compile any of the Application IP for the purpose of any illegal activities.

2.4  Retained Rights; Ownership.  As between the Parties, subject to the rights granted in this Agreement, Company and its licensors retain all right, title and interest in and to the Application IP and its components, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement. Customer further acknowledges that Company retains the right to use the foregoing for any purpose in Company’s sole discretion.

2.5  Suspension.  Notwithstanding anything to the contrary in this Agreement, Company may temporarily suspend Customer’s and any Authorized End User’s access to any portion or all of the Application IP if (i) Company reasonably determines that (a) there is a threat or attack on any of the Application IP; (b) Customer’s or any Authorized End User’s use of the Application IP disrupts or poses a security risk to the Application IP or any other customer or vendor of Company; (c) Customer or any Authorized End User is/are using the Application IP for fraudulent or illegal activities; (d) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; or (e) Company’s provision of the Application Service to Customer or any Authorized End User is prohibited by applicable law; or (ii) any vendor of Company has suspended or terminated Company’s access to or use of any third party services or products required to enable Customer to access the Application IP  (each such suspension, in accordance with this Section 2.6, a “Service Suspension”). Company will make commercially reasonable efforts, circumstances permitting, to provide written notice of any Service Suspension to Customer (including notices sent to Company’s registered email address) and to provide updates regarding resumption of access to the Application IP following any Service Suspension. Company will use commercially reasonable efforts to resume providing access to the Application Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured.  Company will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.  Company does not include any limits for Customer’s usage of disk storage and bandwidth in connection with the Application Service but such commitment is subject to (i) Customer complying with the terms of this Agreement; and (ii) Customer ensuring that it does not infringe the intellectual property rights of any third party.

3. CUSTOMER OBLIGATIONS.

3.1  Authorized End User Access to Services.  Subject to the terms and conditions herein, Customer may permit any Authorized End User to access and use the features and functions of the Application Service.  Customer will ensure that any such Authorized End User will be bound by a contractual, enforceable agreement, which agreement, will, by its terms, provide substantially the same or greater protections for Company’s Confidential Information and the Application IP as are provided by the terms hereof.  An Authorized End User is an individual person whose license may not be shared with any other individual.

3.2  Provision of Support to Authorized End Users.  Company shall provide technical support in accordance with Schedule B.

3.3 Assistance to Company.  Customer will, at its own expense, provide assistance to Company, including, but not limited to, by means of access to, and use of, Customer facilities and Customer equipment, as well as by means of assistance from Customer personnel, to the limited extent any of the foregoing may be reasonably necessary to enable Company to perform its obligations hereunder, including, without limitation, any obligations with respect to support services performed pursuant to Section 3.

3.4  Data.  Customer acknowledges that Company may use any data in an anonymized and de-identified manner in accordance with Section 5.4 below

3.5  Customer Content.  Company acknowledges that Customer owns or otherwise has rights to all Customer Content that it provides or otherwise permits access to Company through the Application Service and Customer grants to Company a non-exclusive license during the Term of the Agreement to use such Customer Content solely in connection with the provision of the Application Service to Customer.  Customer represents and warrants that it has sufficient rights to transmit or otherwise permit access to any such Customer Content to Company, including any data or information contained therein and that, to the extent Customer shares or otherwise permits Company or the Application Service to make use of any credentials to obtain such data or information, that such sharing of credentials shall not violate the rights of, or any contractual obligations with, any third party.  Customer may archive one or more authorized projects and retain access to the data in accordance with the terms of the Clients Current Purchase Order.  Customer acknowledges that Company may, in its discretion, archive Customer Content that is two (2) or more years old such that this archived Customer Content is not readily accessible through the Application Service.

4. FEES AND EXPENSES; PAYMENTS.

4.1  Fees. In consideration for the rights granted to Customer and the performance of Company’s obligations under this Agreement, Customer shall pay to Company, without offset or deduction, certain fees, in such amounts as may be determined by reference to the Purchase Order (the “Fees”).  As further described in the Purchase Order, such fees shall be paid on a per-usage basis as set forth in the Purchase Order.  Unless otherwise provided in a Schedule, all such fees shall be due and payable within thirty (30) calendar days after an invoice is issued by Company with respect thereto. Company may adjust the Fees at its election after the initial term of this Agreement and upon each anniversary thereafter by providing at least thirty (30) days notice (which may be delivered electronically).

4.2  Customer Operating Expenses. Customer will bear all expenses incurred in performance of its obligations hereunder, including, without limitation, through use by Customer and/or any Authorized End User of the Application Service, and/or through provision of support to Authorized End Users with respect to such use of the Application Service.

4.3  Taxes.  Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Company’s income), and any related penalties and interest for the grant of license rights hereunder, or the delivery of related services.  Customer will make all required payments to Company free and clear of, and without reduction for, any withholding taxes.  Any such taxes imposed on payments to Company will be Customer’s sole responsibility, and Customer will, upon Company’s request, provide Company with official receipts issued by the appropriate taxing authorities, or such other evidence as Company may reasonably request, to establish that such taxes have been paid.

4.4  Late Payments; Interest.  Any portion of any amount payable hereunder that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.

5. TREATMENT OF CONFIDENTIAL INFORMATION.

5.1  Ownership of Confidential Information.  The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential.  Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party.

5.2  Mutual Confidentiality Obligations.  Each Party agrees as follows: (i) to use Confidential Information disclosed by the other Party only for the purposes described herein; (ii) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with he terms of this Agreement; and (v) to return or destroy, pursuant to Section 9.4, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement.

5.3  Confidentiality Exceptions.  Notwithstanding the foregoing, the provisions of Sections 5.1 and 5.2 will not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing Party without restriction.  Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.

5.4  Aggregated Statistics.  Notwithstanding anything else in this Agreement or otherwise, Company may, solely in an aggregated, de-identified, and anonymous manner, use any and all data and information related to such use of the Application to compile statistical and performance information related to the provision and operation of the Application Service and to enhance the functionality and features of the Application Service (“Aggregated Statistics”).  Aggregated Statistics are not considered Confidential Information.

6. REPRESENTATIONS AND WARRANTIES.

6.1  Mutual Representations.  Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.

6.2  Service Levels.  Company warrants that the Application Service will conform in all material respects to the Service Standard set forth in Schedule B when accessed and used in accordance with the Application Documentation and the Access Protocols. Notwithstanding any other provision of this Agreement (including, without limitation, Section 6.1 of this Agreement), Customer acknowledges and agrees that its sole and exclusive remedy, and Company’s sole and exclusive obligation, with respect to any breach of the foregoing warranty shall be remedies specified in such Schedule B.   Company does not make any representations or guarantees regarding uptime or availability of the Application IP unless specifically identified in Schedule B.

7. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY.

7.1  Disclaimer.  EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 6, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION IP, INCLUDING THE APPLICATION SERVICE, THE APPLICATION DOCUMENTATION, AND ALL SERVICES PERFORMED BY COMPANY ARE PROVIDED “AS IS,” AND COMPANY AND ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY.  COMPANY, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, DOES NOT WARRANT THAT THE APPLICATION IP, INCLUDING THE APPLICATION SERVICE OR ANY OTHER SERVICES PROVIDED BY COMPANY WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.  COMPANY WILL WORK TO CORRECT ERRORS AND INTERRUPTED SERVICES, AS REPORTED BY THE CUSTOMER OR INTERNALLY, AS QUICKLY AS POSSIBLE AND IN ACCORDANCE WITH THE SERVICE LEVEL AND SUPPORT TERMS BELOW.

7.2  Exclusions of Remedies; Limitation of Liability.  EXCEPT FOR INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8, BELOW, IN NO EVENT WILL COMPANY OR ITS LICENSORS AND SUPPLIERS BE LIABLE TO CUSTOMER 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 OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF COMPANY 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.  EXCEPT FOR INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8, BELOW, THE CUMULATIVE LIABILITY OF COMPANY TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO COMPANY BY CUSTOMER UNDER SECTION 4.1 DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR EVENT GIVING RISE TO SUCH LIABILITY.  THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

7.3   Use Disclaimer.  CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT THE APPLICATION SERVICE INCORPORATES COMPANY’S VIEWS OF INDUSTRY BEST PRACTICES AND STANDARDS; AND THAT THE COMPANY AND/OR THE INFORMATION GENERATED FROM USE OF THE APPLICATION SERVICE IS NOT INTENDED TO SERVE AS AN EXPERT TESTIMONY OR REPORT NOR IS COMPANY INTENDED TO SERVE AS AN ADVISOR, CONSULTANT OR AS AN EXPERT WITNESS.  SUCH INFORMATION IS NOT INTENDED TO SERVE AS THE SOLE BASIS FOR CUSTOMER’S DECISION MAKING.  INFORMATION CONTAINED IN OR DERIVED FROM THE APPLICATION SERVICE MAY NOT MEET CUSTOMER’S NEEDS.  CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR ANY DECISIONS MADE OR ACTIONS TAKEN BASED ON THE INFORMATION CONTAINED OR GENERATED FROM THE APPLICATION SERVICE.  CUSTOMER’S RELIANCE UPON INFORMATION AND CONTENT OBTAINED BY CUSTOMER THROUGH THE APPLICATION SERVICE IS SOLELY AT CUSTOMER’S RISK.  COMPANY DOES NOT ASSUME ANY LIABILITY OR RESPONSIBILITY FOR DAMAGE OR INJURY TO CUSTOMER ARISING FROM ANY USE OF OR RELIANCE ON THE APPLICATION SERVICE.

7.4  Essential Basis of the Agreement.  Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 7 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.

8. INDEMNIFICATION.

8.1  Indemnification of Customer.  Company agrees to indemnify, defend and hold harmless Customer from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any claim by any third party that the Application Service and/or the Application Documentation infringes such third party’s U.S. patents issued as of the Effective Date or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws of the United States of America, provided that Customer promptly notifies Company in writing of the claim, cooperates with Company, and allows Company sole authority to control the defense and settlement of such claim.  If such a claim is made or appears possible, Customer agrees to permit Company, at Company’s sole discretion, to enable it to continue to use the Application Service or the Application Documentation, as applicable, or to modify or replace any such infringing material to make it non-infringing.  If Company determines that none of these alternatives is reasonably available, Customer shall, upon written request from Company, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim.  This Section 8.1 shall not apply to the extent that  the alleged infringement arises from (i) modification of any of the Application IP by Customer, (ii) combination, operation or use of any of the Application IP with other software, hardware or technology not provided by Company, (iii) use of a superseded or altered release of any of the Application IP, if such infringement would have been avoided by the use of a then-current release of the Application IP, as applicable, and if such then-current release has been made available to Customer, (iv) any Customer Content, or (v) any applications owned or otherwise distributed by Customer (any of the foregoing circumstances under clauses (i), (ii), (iii), (iv), or (v) a “Customer Indemnity Responsibility”).  IN NO EVENT SHALL COMPANY’S LIABILITY UNDER THIS SECTION 8 EXCEED THE CAP ON LIABILITY SET FORTH IN SECTION 7.2 ABOVE.

8.2  Customer’s Indemnity Obligations.  Customer agrees to hold, harmless, indemnify, and, at Company’s option, defend Company from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from (i) Customer’s or any Authorized End User’s negligence or willful misconduct; (ii) Customer’s or any Authorized End User’s use of the Application IP in a manner not authorized or contemplated by this Agreement; or (iii) a Customer Indemnity Responsibility, provided that Customer will not settle any third-party claim against Company unless such settlement completely and forever releases Company from all liability with respect to such claim or unless Company consents to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.

9. TERM AND TERMINATION.

9.1  Term.  The term of this Agreement will commence on the Effective Date and will continue for the period set forth on the Purchase Order (the “Initial Term”), unless earlier terminated in accordance with this Section 9, and will automatically renew for successive one (1)-year terms, unless either Party provides written notice of its desire not to renew at least sixty (60) days prior to the expiration of the then-current term (the initial term, together with any renewal terms, collectively, the “Term”).

9.2  Termination for Breach.  Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party.  Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based.  The breaching Party will have a right to cure such breach or breaches within twenty-five (25) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such twenty-five (25)-day period.  Notwithstanding the foregoing, nothing in this Section 9.2 shall limit Company’s rights to suspend Customer’s access to the Application Service in accordance with Section 2.6 above.

9.3  Effect of Termination.  Upon any termination of this Agreement, Customer will  immediately discontinue all use of the Application Service, the Application Documentation, and any Company Confidential Information and both Parties will delete any of the other Party’s Confidential Information from  computer storage or any other media including, but not limited to, online and off-line libraries; (iii) return to the other Party or, at the other Party’s option, destroy, all copies of the Application Documentation and any Confidential Information then in the other Party’s possession; and (iv) promptly pay to Company all amounts due and payable to the other Party hereunder. Customer shall have the right for up to sixty (60) days following the Termination of this Agreement to export Customer Content, only to the extent Customer is current on all payments owed to Company under this Agreement.

9.4  Survival.  The provisions of Sections 2.5, 3.4, 5, 7, 8, 9.3, 9.4 and 10 will survive the termination of this Agreement.

10. MISCELLANEOUS.

10.1  Entire Agreement.  This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided on the current executed purchase order, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.

10.2  Independent Contractors.  In making and performing this Agreement, Customer and Company act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them.  Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of, the other Party.

10.3  Notices.  All notices required by or relating to this Agreement shall be in writing and shall be sent by means of certified mail, postage prepaid, to the Parties to the Agreement and addressed, if to Customer, to the address set forth on the Cover Page, and if to Company, as follows:

If to Company:

SMARTPM TECHNOLOGIES
53 Perimeter Center East Ste 200
Atlanta, GA, 30346
Attention: Legal

or addressed to such other address as that Party may have given by written notice in accordance with this provision.  All notices required by or relating to this Agreement may also be communicated by facsimile, provided that the sender receives and retains confirmation of successful transmittal to the recipient.  Such notices shall be effective on the date indicated in such confirmation.  In the event that either Party delivers any notice hereunder by means of facsimile transmission in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender.

10.4  Amendments; Modifications.  This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.

10.5  Assignment; Delegation.  Neither Party shall assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of the other Party , and, absent such consent, any attempted assignment or delegation will be null, void and of no effect.  Notwithstanding the foregoing, Company may assign this Agreement, without consent, in connection with a merger, sale, transfer or other disposition of all or substantially all of its stock or assets.

10.6  No Third Party Beneficiaries.  The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns.  Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

10.7  Severability.  If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability.  The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.

10.8  Waiver.  No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought.  Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time.  Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.

10.9  Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days’ written notice.

10.10 Reference.  Company may issue a press release announcing Customer as a customer of the Application Service, subject to Customer’s written approval. Company may list Customer as such at its corporate Website at www.smartpmtech.com. Company may create a white paper on Customer’s use case subject to Customer’s written approval.

10.11  Governing Law.  THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS.  FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN FULTON COUNTY, GEORGIA.

10.12  U.S. Government End-Users.  Each of the Application Documentation and the software components that constitute the Application Service is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Application Service and the Application Documentation with only those rights set forth therein.

10.13  Counterparts.  This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.

10.14  Headings.  The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.

 

SCHEDULE B

APPLICATION SERVICE

SERVICE LEVELS AND TECHNICAL SUPPORT

 

1  DEFINITIONS.  Certain capitalized terms, not otherwise defined in this Schedule, will have the meanings set forth in the Agreement.  The following capitalized terms will have the definitions set forth below:

1.1  “Error” will mean any material nonconformity of the Application Service with the Application Documentation

1.2  “System Uptime” will mean the total amount of time during any calendar month, measured in minutes, during which Customer has the ability to access the features and functions of the Application Service according to the Access Protocols.

1.3  “Scheduled Downtime” will mean the total amount of time during any calendar month, measured in minutes, during which Customer is not able to access the Application Service, according to the Access Protocols, due to planned system maintenance performed by Company. Company will use commercially reasonable efforts to: (1) provide at least five (5) days of notice to Client prior to any scheduled maintenance, and (2) perform scheduled maintenance during Saturdays and Sundays.

1.4  “System Availability” will mean, with respect to any particular calendar month, the ratio obtained by subtracting Unscheduled Downtime during such month from the total time during such month, and thereafter dividing the difference so obtained by the total time during such month.  Represented algebraically, System Availability for any particular calendar month is determined as follows:

 

                                                                        

NOTE:  “Total Monthly Time” is deemed to include all minutes in the relevant calendar month, to the extent such minutes are included within the Term of this Agreement.

1.5  “Technical Support” means the provision of responses by qualified Company personnel to questions from Eligible Customer Personnel related to use and operation of the Application Service, including basic instruction or assistance related to Errors within the Application Service.

1.6  “Unscheduled Downtime” will mean the total amount of time during any calendar month, measured in minutes, during which Customer is not able to access the features and functions of the Application Service according to the Access Protocols, other than Scheduled Downtime, as defined above.

2. SYSTEM PERFORMANCE.

2.1 System Availability:  Company will undertake commercially reasonable measures to ensure that, beginning on the Effective Date, System Availability equals or exceeds 99% during each calendar month (the “Service Standard”), provided that any Unscheduled Downtime occurring as a result of circumstances beyond Company’s reasonable control including, without limitation, (i) Customer’s breach of any provision of this Agreement; (ii) non-compliance by Customer with any provision of this Schedule; (iii) incompatibility of Customer’s equipment or software with the Application Service; (iv) poor or inadequate performance of Customer’s or Customer’s systems; (v) equipment failures; (vi) acts or omissions of vendors or suppliers; (vii) transportation difficulties; or (viii) force majeure (as contemplated in Section 10.9 of the SaaS Terms), shall not be considered toward any reduction in System Availability measurements.  The Application Service is an on-demand offering that has portions of its infrastructure in the Amazon Elastic Compute Cloud (“EC2“), a commercial hosting service provided by Amazon Web Services, LLC (“AWS“). Therefore System Availability is based on the AWS EC2 Service Level Agreement. Company reserves the right to changes its hosting service provider from time to time and adjust its Service Standard and terms of this Schedule B based upon changes to AWS Service Level Agreement or terms of Company’s alternative hosting provider.

2.2  Access to Support; Response Times:  Customer may report Unscheduled Downtime by emailing Company at support@smartpmtech.com.  Company will exercise commercially reasonable efforts to respond to reports of Unscheduled Downtime by email acknowledgement within 30 minutes of each such report.

3. MEASUREMENT AND REPORTS.

3.1 System Monitoring and Measurement:  Company will provide for monitoring of System Availability on an ongoing basis.  All measurements of System Availability will be calculated on a monthly basis for each calendar month during the Term.  Availability of access to the features and functions of the Application Service through the Application Client and/or the Web Interface can be viewed at http://status.smartpmtech.com.

4. CUSTOMER REQUIREMENTS.

4.1  Additional Customer Obligations:  Except as otherwise agreed between the Parties pursuant to a separate written agreement, Customer is responsible for (i) maintenance and management of its computer network(s), telecommunication lines and services, and any servers, software, Web site(s), and any equipment or services related to maintenance and management of the foregoing necessary to access the features and functions of the Application Service; and (ii) correctly configuring Customer’s systems in accordance with the Access Protocols.

4.2 Reporting of Unscheduled Downtime:  Customer must promptly notify Company in the event Unscheduled Downtime occurs.  Unscheduled Downtime will be deemed to begin when Company receives accurate notification thereof from Customer, or when Company first becomes aware of such Unscheduled Downtime, whichever first occurs.

4.3  Non-Performance by Customer:  The obligations of Company set forth in this schedule will be excused to the extent any failures to meet such obligations result in whole or in part from Customer’s or its Authorized Users’ failure(s) to meet the foregoing requirements.

5. TECHNICAL SUPPORT.

5.1  Support Obligations.  Subject to Customer’s payment of all applicable fees pursuant to this Agreement, Customer will be permitted to designate in writing to Company a single individual for purposes of obtaining Technical Support from Company (“Eligible Customer Personnel”).  Company will provide Technical Support to such Eligible Customer Personnel by means set forth in the following table, subject to the conditions regarding availability or response times with respect to each such form of access as set forth in the table.

FORM OF SUPPORT	AVAILABILITY
Telephonic support (at such phone number as Company may provide from time to time)	Mon-Fri 8:00 AM ET to 5:00 PM ET
Email Support (at such email address as Company may provide from time to time)	Mon – Fri 8:00 AM ET to 5:00 PM ET

 

5.2  Customer Access. Company shall be excused from any non-performance of its obligations hereunder to the extent Customer does not provide such data and access as Company may reasonably request to render such Technical Support.

5.3  Error Corrections.  Company will use commercially reasonable efforts to adapt, re-configure or re-program the Application Service, as applicable, in order to correct in a timely fashion any Errors reported to Company by Eligible Customer Personnel, as defined below, provided that if Company determines in good faith that any such Error is the result of errors or misstatements in the Application Documentation, Company may correct such non-conformity solely by amending the Application Documentation, as necessary, and further provided that any failure or inability by Company to correct any such Error, or failure or inability to do so in a timely fashion, will in no event be deemed a breach of Company’s obligations hereunder.

5.4 Procedural Workarounds.  In the event that Company fails or is unable to correct any Error, as required by this Schedule, Company will use commercially reasonable efforts to develop in a timely fashion procedures or routines, for use by end users of the Application Service, which, when employed in the regular operation of the Application Service, will avoid or substantially diminish the practical adverse effects of the relevant Error, provided that any failure or inability by Company to develop any such procedure or routine, or failure or inability to do so in a timely fashion, will in no event be deemed a breach of Company’s obligations hereunder.

6. LIMITATIONS TO TECHNICAL ASSISTANCE.

6.1  Eligible Recipients.  Company shall have no obligation to provide Technical Support, other than to Eligible Customer Personnel.

6.2  Company Corporate Holidays.  Company shall have no obligation to provide Technical Support during any holiday recognized by Company which shall include all federally recognized holidays and the day after Thanksgiving and Christmas Eve.

6.3  Technical Support Exemptions.  Unless otherwise agreed by the Parties, Company shall have no obligation to provide Technical Support with respect to any Error resulting from (i) use of the Application Service other than according to the Application Documentation and the terms of this Agreement; (ii) modification of the Application Service by Customer or any third party, except as expressly permitted in writing by Company; or (iii) any combination or integration of the Application Service with hardware, software and/or technology not approved in writing by Company, regardless of whether such combination or integration is permitted under the terms of the Agreement.

6.4  General Protection of Company Intellectual Property.  Company shall not be required to provide Technical Support to the extent the provision thereof might reasonably be expected to jeopardize or harm Company’s rights in any intellectual property, or reveal trade secrets or other proprietary information of Company not generally available to the public or to end users of the Application Service.

6.5  No Source Code.  Nothing in this Agreement shall be construed to give Customer a right to use, or otherwise obtain access to, any source code from which the Application Service or any portion thereof is compiled or interpreted.

6.6  Compliance with Third-Party Constraints.  Company shall not be required to provide Technical Support to the extent the provision thereof would violate Company’s obligations to its third party licensors and suppliers with respect to such third parties’ intellectual property.