Terms and Conditions

GEOFORCE GENERAL PURCHASE TERMS AND CONDITIONS

These Geoforce Terms and Conditions, including all attachments, addenda, schedules and exhibits, and documents at referenced URLs (collectively, this “Agreement”) are entered into by and between Geoforce, Inc. or one of its Affiliates (“Geoforce”), and the entity identified as the Customer or Purchaser (“Customer” or “Purchaser”) in the signature block of the applicable Order (as defined herein) executed by and between Geoforce and Customer, as of the date specified in such Order (the “Effective Date”).

In connection with either the purchase or Device Lease of Equipment, Customer agrees to enter into a subscription agreement for Software and Services in accordance with the terms of this Agreement. In consideration of the mutual covenants and obligations of the parties set forth in this Agreement, Company and Customer hereby agree as follows:

1. Definitions

“Affiliate” means, as to a Party, each person that is Controlled by such Party, that Controls such Party, or that is under common Control with such Party.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of management, policies or activities of a Party, whether through ownership of voting securities, beneficial interests, by contract or otherwise. The terms “Controlled” and “Controlling” shall have correlative meanings. Upon request, each Party agrees to confirm in writing to the other Party the status of any or all Affiliates.

“Customer Networks” means Customer’s information technology networks, systems, assets, files, information, data and Required Products.

“Equipment” means the Hardware Leased or purchased by Customer as set forth in the preamble to this Agreement.

“Hardware” means certain hardware components and ancillary accessories necessary to connect to and communicate with Company systems that may include, but shall not be limited to, the following: tags (such as RFID tags or GPS enabled network delivery devices that may be attached to Customer’s assets) and equipment (such as tag readers and communication systems that may be installed within Customer’s facilities or other locations).

“Intellectual Property Rights” means, on a worldwide basis, any and all tangible and intangible: (i) copyrights; (ii) trademarks, service marks, logos, trade dress, trade names and the goodwill associated therewith; (iii) rights relating to know-how or trade secrets; (iv) patents; (v) rights in domain names, universal resource locator addresses, telephone numbers (including toll free numbers) and similar identifiers; (vi) all other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; and (vii) all registrations, initial applications (including intent to use applications), renewals, extensions, continuations, divisions or reissues of any of the foregoing now or hereafter in force (including any rights in any of the foregoing).

“Order” means a Company quote for Company’s Services and Equipment to be provided to Customer in writing by Company and accepted by Customer pursuant to countersignature by Customer of such written quote, and which Order shall be subject to and governed by the terms and conditions of this Agreement. Notwithstanding anything to the contrary contained herein, any and all pre-printed terms stated on a Customer order are void and of no force or effect to the extent that they conflict with this Agreement.

“Purchased Equipment” means all Equipment that is purchased by Customer pursuant to this Agreement.

“Leased Equipment” means all Equipment that is Leased by Customer pursuant to this Agreement.

“Required Access” means the Customer Networks required by Company to be provided by Customer for the purposes of Company providing the Services and Equipment described in this Agreement.

“Required Access Rights” means the full license, rights and authorizations provided by Customer to the Company, at its sole costs and expense, that are necessary to allow Company to access or use Customer Networks in order to provide the Services and Equipment.

“Required Products” means the third-party hardware, software, appliances, telecommunications, Internet and other connectivity (but only the model, version, release or other technical specifications of the foregoing that are supported by Company from time to time) as may be specified by Company in the Service descriptions for the applicable Services set forth in the Order.

“Services” means the Company services (including GAAS) to be provided to Customer under the applicable Order. Customer’s Affiliates and third-party contractors may provide the Services to Customer on behalf of Company. Customer acknowledges and agrees that such Affiliates and third-party contractors will be entitled to provide the Services to Customer.

“Software” means any software owned or licensed by Company and provided to Customer under the applicable Order or used by Company to provide the Services under the Order, whether stand alone or as incorporated in Hardware, including any APIs, guides and documentation provided therewith.

“Term” means each of the Software Subscription Term and the Device Lease Term, respectively.

“Work Product” means all deliverables (including Deliverables), data, information, reports, software, works of authorship, materials, inventions and discoveries created, developed or reduced to practice by Company or its personnel or contractors as part of or in the course of providing the Services. For clarity, Work Product does not include Customer’s Confidential Information.

2. Term

(a) Device Lease Term. Equipment shall be Leased on a timeline specified in the quote or order (the “Device Lease Term”). The Device Lease Term shall automatically renew for an additional Term if this Agreement has not been otherwise terminated in accordance with Section 3. Upon termination, Customer shall return Leased Equipment to Company in full working condition within 30 days at the location designated in the notice. Notwithstanding the foregoing, if Customer has Leased the same equipment for a period of five (5) years or longer and such Leased Equipment has not been replaced by Company within that timeframe, Customer is not obligated to return the Leased Equipment. If the Leased Equipment has been replaced during the past five (5) years Customer must return the Leased Equipment in accordance with the provisions of this Paragraph.

(b) Software and Services Subscription Term. Customer agrees to subscribe to the Software and Services for a period of time specified in the quote or order (the “Software Subscription Term”). The Software Subscription Term shall automatically renew for an additional Term unless otherwise terminated in accordance with Section 3.

3. Termination

(a) Termination of Auto-Renewal. The Device Lease Term and the Software and Services Subscription Term shall automatically renew for an additional respective 12 month Term unless within thirty (30) days prior to the expiration of any Term Customer provides written notice to Company of its intent to terminate.

(b) Termination for Convenience. Customer may terminate this Agreement or any Order hereunder for convenience upon thirty (30) days written notice, or if later, upon such date as the notice may specify. On the date of such termination, Customer shall pay to Company an early termination fee equal to 100% of the fees for Services not yet performed and products not yet provided under any Order (the “Termination for Convenience Payment”). It is expressly acknowledged by both Parties that this Termination for Convenience Payment shall not be considered liquidated damages due to Company.

(c) Termination for Breach. In the event that: (i) either Party breaches the covenants or obligations contained in this Agreement or the applicable Order; and (ii) such breach is not cured within thirty (30) days (or within five (5) days with respect to a failure to make any payment required hereunder) after the non-breaching Party gives to the breaching Party written notice of such breach, then the non-breaching Party will be entitled to terminate this Agreement and the Order immediately upon written notice thereof to the breaching Party.

(d) Termination by Company. In addition to its rights to terminate this Agreement pursuant to Section 6 at any time during the Term the Company may terminate this Agreement in its sole discretion without penalty.

(e) Effect of Termination. Upon the expiration or earlier termination of this Agreement, all licenses granted to Customer hereunder will terminate and Customer shall cease using the Software in any form and shall return all Leased Equipment in accordance with Section 2.

4. Payment

(a) Leased Equipment Payment. Customer shall pay per Device Lease Term for the Leased Equipment. Company will invoice Customer each month during the Device Lease Term. Customer shall pay each invoice within thirty (30) days after the Customer’s receipt thereof, without deduction, setoff or delay for any reason, including circumstances arising under any other Order executed by the Parties. Customer may pay Company by making an in-person cash payment to Company or by authorizing Company to continuously charge the debit card or credit card on file with Company during the Device Lease Term in an amount equal to all payments and fees due under this Agreement. Except as in accordance with Section 2, Customer shall also pay other charges in accordance with this Agreement due upon return of the Leased Equipment, including but not limited to: (i) applicable taxes; (ii) charges for maintenance services and cleaning, if any; (iii) loss of, or damage or repair, to the Leased Equipment, loss of use, diminution of the Leased Equipment’s value caused by damage to it or repair to it.

(b) Purchased Equipment Payment.. Geoforce shall invoice Customer for the Hardware, Software, Services and Deliverables in accordance with the applicable Order. Unless otherwise set forth in the Order, Customer shall pay each invoice within 30 days after Customer’s receipt thereof, without deduction, setoff or delay for any reason, including circumstances arising under any other Order executed by the Parties.

(c) Subscription Payment. Customer shall pay per month during the Software Subscription Term for the Services and Software in accordance with the applicable Order (the “Subscription Fees”). Unless otherwise set forth in the Order, Customer shall pay each invoice within thirty (30) days after Customer’s receipt thereof, without deduction, setoff or delay for any reason, including circumstances arising under any other Order executed by the Parties. Customer may pay Company by making an in-person cash payment to Company or by authorizing Company to continuously charge the debit card or credit card on file with Company during the Device Lease Term in an amount equal to all payments and fees due under this Agreement.

5. Leased Equipment and Purchased Equipment

(a) Location of Leased Equipment; Restrictions on Use. During the Term, Leased Equipment shall remain in Customer’s possession, unless expressly agreed otherwise in writing by Company. Leased Equipment shall only be used in a careful, proper and good workman-like manner and for its intended use. The use and operation by Customer of the Leased Equipment shall comply with all laws, ordinances, and regulations relating to the possession, use, or maintenance of such Leased Equipment. Customer shall not: (i) permit the Leased Equipment to be used by any person who is not authorized by Company in writing to use such Leased Equipment and (ii) operate, use, maintain, or store the Leased Equipment in a manner that is unsafe, hazardous, or likely to cause damage to the Leased Equipment or to any person or the surrounding environment. If at any time Company determines that Customer has engaged in the actual or potentially unsafe and/or hazardous use of the Leased Equipment, Company may immediately terminate the Agreement. Upon notification of termination for unsafe or hazardous use, Customer shall immediately return the Leased Equipment to the Company and shall be not be entitled to any refund or to a return of the Security Deposit.

(b) Maintenance and Repair; Risk of Loss or Damage. Customer shall maintain the Leased Equipment in good repair and operating condition, allowing for reasonable and normal wear and tear during the Term. Customer shall pay all costs required to maintain and repair the Leased Equipment in good operating condition beyond reasonable and normal wear and tear. Such costs shall include labor, material, parts, shipping, delivery, replacement and similar related costs. The Company shall perform any service of the Leased Equipment related to reasonable wear and tear. If the Leased Equipment requires repair, Company, at its sole discretion may decide to make the repairs. If the Leased Equipment requires third-party repair, Customer shall contact Company to obtain a referral to a third-party repair company. Leased Equipment shall not be repaired or replaced without Company’s prior written consent (it being understood and agreed that e-mail correspondence shall satisfy the requirement of written consent for the purposes described in this Section 6). In the event the Leased Equipment requires replacement, Customer shall return the Leased Equipment within thirty (30) days of the Company issuing any replacement Leased Equipment (subject to Section 2(a)). Customer assumes all risks of loss and damage to the Leased Equipment for any cause and agrees to return Leased Equipment in the condition received from the Company, with exception of normal wear and tear. The Company or its representative will determine normal wear and tear. All determinations made by the Company shall be final, binding and conclusive.

(c) Equipment Return. In accordance with Section 2(a), Customer shall return the Leased Equipment at nearest Geoforce Office or such other address as agreed at Customer’s sole expense. Except in the case of Leased Equipment that has been Leased for over five (4) years, Leased Equipment shall be returned to Company in the same condition as Customer received it, except for normal wear and tear, within 15 days after expiration of any Term. If Leased Equipment has been in the possession of Customer for less than five (4) years, such Leased Equipment must be returned to Company. If Customer fails to return the Leased Equipment, Company reserves the right to take any action necessary to regain possession of the Leased Equipment.

(d) Device Buyout Option: If the leased device is less than four (4) years old at the end of the lease term, the Customer has the option to purchase the device for a one-time payment of twenty dollars ($20.00). To exercise this buyout option, the Customer must notify Geoforce in writing at least thirty (30) days before the end of the lease term. Upon receipt of the buyout payment, Geoforce will transfer ownership of the device to the Customer, and all lease obligations for the device will terminate.

(e) Acceptance of Equipment. Customer acknowledges and certifies that Customer has examined the Equipment pursuant to this Agreement and that it is in good condition, except as otherwise specified herein. Customer shall immediately notify the Company in writing of any preexisting damage or defect to Equipment. If Customer fails to provide such notice in writing within 24 hours after acceptance of the Equipment, Customer will be conclusively presumed to have accepted the Equipment in good condition, “AS-IS, WHERE IS, AND WITH ALL FAULTS (PATENT AND LATENT)” and Customer shall be prohibited and estopped from making any subsequent claim to the contrary, and any such subsequent claim (whether made in contravention of the foregoing prohibition or estoppel, or otherwise) that the Equipment was not provided in good condition shall be null, void, invalid and unenforceable. COMPANY MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, AND EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, TO FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

(f) Ownership of Leased Equipment. The Company possesses sole and exclusive title to the Leased Equipment (subject to the limited rights of Customer to possess and use the Equipment solely and as expressly permitted hereunder), and such Leased Equipment shall remain, and shall be deemed to remain, the sole and exclusive personal property of the Company, regardless of the manner in which it may be attached to any other property. Except in the case of Leased Equipment that has not been replaced and has been in the Customer’s possession for a period of five (5) years or more, the Company shall at all times retain the sole and exclusive ownership and title to the Leased Equipment. Customer shall immediately advise the Company regarding any notice of any claim, charges, levy, lien, or legal process (whether arising under or based upon statute, common law or in equity) issued or threatened to be issued against the Leased Equipment or any portion thereof.

(g) Ownership of Purchased Equipment. Upon acceptance of the Purchased Equipment in accordance with Section 9, Customer will possess sole and exclusive title to the Purchased Equipment, and such Purchased Equipment shall be deemed to be the sole and exclusive personal property of the Customer.

(h) Limited Hardware Warranty. Geoforce warrants that, for one year (or longer, if Customer has elected to pay the additional fees due for such longer period as expressly set forth in an Order) from that date that title for the Hardware passes to Customer (the “Warranty Period”), the Hardware will be free of defects in materials and workmanship when installed, operated, and serviced in strict accordance with Geoforce’s and the manufacturer’s requirements. If: (i) Geoforce is timely notified by Customer in writing that the Hardware fails to operate because of a defect in materials or workmanship within the Warranty Period; (ii) the failed Hardware is actively subscribed to the Services; and (iii) Customer’s account is in good standing, Geoforce will, at its sole option and at no charge to Customer, repair or send a replacement for the failed Hardware or, in its discretion, refund any monies paid for such failed Hardware. In the event of a device failure for a Hardware unit currently under warranty, Customer shall request a Return Merchandise Authority (“RMA”) via the Geoforce website. Geoforce shall then provide a return shipping label at its own cost. Upon receipt of the RMA shipping label, Customer shall remove and return the failed Hardware to Geoforce within 30 days. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL THIS WARRANTY COVER: (a) HARDWARE THAT HAS BEEN TAMPERED WITH OR SERVICED WITHOUT GEOFORCE’S AUTHORIZATION; (b) HARDWARE THAT HAS BEEN LOST OR STOLEN THROUGH NO FAULT OF GEOFORCE; (c) HARDWARE THAT IS DESIGNED TO BE CONSUMABLE, INCLUDING, BUT NOT LIMITED TO, NON-SERVICEABLE GPS DEVICES OR ACTIVE RFID TAGS; (d) HARDWARE SUBJECTED TO ABUSE, MISUSE, NEGLECT, OR HOSTILE OPERATING ENVIRONMENTS, AS OPPOSED TO HARSH ENVIRONMENTS (e) (not applicable in the case of GAAS) HARDWARE THAT HAS EXHAUSTED ITS BATTERY (i.e., DEPLETION OF BATTERIES DUE TO INCREASED REPORTING OR OTHER OPERATIONAL FACTORS IS NOT A DEFECT THAT IS COVERED BY WARRANTY); OR (f) DAMAGE TO HARDWARE CAUSED BY CUSTOMER’S NEGLIGENCE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE HARDWARE IS OFFERED “AS IS,” AND GEOFORCE DOES NOT WARRANT THAT THE HARDWARE WILL MEET CUSTOMER’S NEEDS OR EXPECTATIONS.

6. Software Subscription and Services

(a) Purchase and Provision of Services. All Services to be provided by Company hereunder shall be purchased under the applicable Order. Unless explicitly included in the Order, the Services do not include any Required Products. Any Required Products included in the Services will be subject to the terms and conditions governing Customer’s license or use of such Required Products, as set forth in the Order. The Order will cover only the Customer entity specifically identified therein.

(b) Grant. Subject to Customer’s compliance with this Agreement and the applicable Order, including payment of all applicable fees owed to Company hereunder, Company hereby grants to Customer, for its internal business purposes only and for no other purposes, a non-exclusive, non-transferable right to access and use the Software for the Term, under the conditions and requirements set forth herein and in the applicable Order. Customer may authorize its contractors and consultants to exercise the above rights for the sole benefit of Customer, provided that Customer is responsible for any breaches of this Agreement by such contractors and consultants.

(c) Customer Responsibilities. Customer is responsible for the following: (i) protecting the names and passwords of Customer’s users of the Software; (ii) preventing, and for promptly notifying Company of, any unauthorized access to or use of the Software; (iii) each user’s compliance with the terms and conditions of this Agreement and the applicable Order and each user’s acts and omissions; (iv) using the Software and Hardware within the permitted scope and limitations and only in accordance with this Agreement and the applicable Order; (v) maintaining archival and backup copies of all Customer Confidential Information and data (and any prior versions thereof) outside of the instance being used by Company to provide the Software; and (vi) using the Software and Hardware in accordance with applicable laws.

(d) Restrictions on Customer’s Use. Customer shall not (and shall not permit others to: (i) license, sub-license, sell, re-sell, Lease, lease, transfer, distribute or time share the Software, or make either available for access by third parties, including, without limitation, in the manner of a service bureau or hosted application; (ii) create derivative works based on or otherwise modify the Software; (iii) disassemble, reverse engineer, decompile or otherwise attempt to derive source code or other trade secrets from the Software or any of the software comprising, or in any way making up, a part of the Software; (iv) access the Software in order to develop a competing product or service; (v) use the Software to provide a service for others; or (vi) use, include, store or send Malicious Code from the Software. For purposes of this Agreement, “Malicious Code” means any undocumented malicious data, code, program, or other internal component (e.g., computer worm, computer time bomb or similar component), which could damage, destroy, alter or disrupt any computer program, firmware or hardware, or which could, in any manner, reveal, damage, destroy, alter or disrupt any data or other information accessed through or processed by the Software or Company’s computer systems in any manner.

(e) Required Products

(i) Not Included in Services. Customer shall, at its sole cost and expense, procure and maintain during the Term all Required Products and all appropriate licenses and rights thereto, including rights of use and rights of access, for Customer, Customer’s Affiliates (if applicable) and for Company, its Affiliates and third-party contractors, as necessary or desirable for Company to provide the Services.

(ii) Included in Services. Notwithstanding Section 7(e)(i) above, if and to the extent any such Required Products are explicitly included in the Services as set forth in the applicable Order, Company shall provide such Required Products as part of the Services pursuant to and in accordance with the terms and conditions of the Order. In such event, any licenses to the Required Products will remain the property of Company.

(f) Required Access. Customer shall provide the Required Access and Required Access Rights to Company. Customer agrees and acknowledges that Company will be unable to provide the Services to Customer unless Customer provides the Required Access and Required Access Rights to Company.

(g) Required Decisions. Customer shall timely provide to Company all such decisions and/or approvals relating to the Services and Deliverables that are identified or requested by Company (the “Required Decisions”). In the event that Customer does not timely provide a particular decision or approval to Company (as determined by Company), Company shall not be obligated to provide any affected Services or Deliverables.

(h) Installation and Configuration.

(i) Customer Responsibilities. Customer shall, at its sole cost and expense, install, configure, and set up all Required Products, including the Hardware and any other software, hardware or other products, as required by Company, to ensure that all data and information necessary or appropriate for Company to provide the Services is delivered and transmitted to and received by Company in the form, format, and timing required by Company.

(ii) Additional Professional Services. Additional professional services work may be provided by Company at Company’s then-curLease rates under a separate Order to be executed by the Parties.

7. Confidentiality

(a) Definition. As used in this Agreement, “Confidential Information” means all confidential or proprietary information belonging to either Party hereto (the “Disclosing Party”) and disclosed or made available to the other Party (the “Receiving Party”), whether orally, in writing, by computer memory or other media, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes all trade secrets, pricing information, forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if: (i) the Disclosing Party has taken reasonable measures to keep such information confidential; and (ii) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information. Confidential Information shall include, but not be limited to, the terms of this Agreement and any information which concerns technical details of operation of any of Company’s Services or any of Company’s Software or Hardware offered, sold, provided or used to provide the Services hereunder. Confidential Information shall not include, however, any information which, as demonstrated by the Receiving Party: (a) was publicly known prior to the time of disclosure by the Disclosing Party, or becomes publicly known after disclosure by the Disclosing Party through no action or inaction of the Receiving Party in violation of this Agreement; (b) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party; (c) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

(b) Use of Confidential Information. The Receiving Party will only use and disclose the Disclosing Party’s Confidential Information as reasonably necessary to exercise its rights and obligations under this Agreement and the applicable Order. Any other use or disclosure to a third party is prohibited unless expressly permitted in writing by the Disclosing Party. The Receiving Party agrees to hold the Disclosing Party’s Confidential Information in strict confidence and use reasonable measures to protect it as confidential. The Receiving Party shall be permitted to disclose Confidential Information to third parties only to the extent required by law, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement prior to disclosure and, upon the request of the Disclosing Party, cooperates in good faith and at the expense of the Disclosing Party in any reasonable and lawful actions that the Disclosing Party takes to resist such disclosure or limit the information to be disclosed.

(c) Return of Confidential Information. Upon written request by the Disclosing Party, the Receiving Party will promptly return or destroy all of the Disclosing Party’s Confidential Information, provided that the Receiving Party shall have the right, subject to the confidentiality requirements of this Agreement, to retain the Disclosing Party’s Confidential Information only to the extent contained in the Receiving Party’s (i) professional work papers, and (ii) secure, archival computer back-up files maintained in the ordinary course of business. If so requested by the Disclosing Party, the Receiving Party shall promptly certify to the Disclosing Party that all Confidential Information has been returned or destroyed in compliance with this section.

8. ASSUMPTION OF RISK

CUSTOMER ACKNOWLEDGES THAT THE ACTIVITIES FOR WHICH THE EQUIPMENT IS DESIGNED INCLUDE INHELEASE DANGERS, INCLUDING THE RISK OF BODILY INJURY, ILLNESS, DAMAGE, LOSS, AND/OR DEATH. CUSTOMER VOLUNTARILY ASSUMES AND ACCEPTS ALL RISKS ASSOCIATED WITH THE POSSESSION AND USE OF THE EQUIPMENT.

9. Indemnification; Limitation of Liability; Release of Liability

(a) CUSTOMER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS COMPANY, ITS EMPLOYEES, MANAGERS, MEMBERS, AGENTS, SERVANTS, SUCCESSORS, HEIRS, ATTORNEYS, EXECUTORS, ADMINISTRATORS, AND LEGAL AND PERSONAL REPRESENTATIVES (EACH, A “COMPANY PARTY”) FROM AND AGAINST ANY CLAIM, DEMAND, CAUSE OF ACTION, LOSS OR LIABILITY (INCLUDING ATTORNEY’S FEES AND COSTS) FOR ANY PROPERTY DAMAGE, PERSONAL INJURY, AND ILLNESS AND/OR DEATH, RESULTING FROM OR IN ANY WAY ARISING OUT OF OR RELATING TO, THE CUSTOMER’S USE OF EQUIPMENT BY ANY CAUSE OR THIS AGREEMENT.

(b) IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S USE OR MISUSE OF EQUIPMENT OR UNDER THIS AGREEMENT, OR OTHERWISE, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY), AND IRRESPECTIVE OF WHETHER THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE OR ANY REMEDY SPECIFIED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATION ON LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

(c) By executing this Agreement, Customer agrees that Company shall have no liability for any claims or damages resulting from or in any way arising out of or relating to property damage, personal injury, or illness and/or death as a result of any and all activities related to the purchase, Device Lease, operation, or use of Equipment or Software provided by Company. Customer assumes full responsibility for any such damage, injury, illness and/or death which may occur, and further agrees that Company shall not be liable for any loss or theft of Equipment. CUSTOMER SPECIFICALLY AGREES THAT COMPANY SHALL NOT BE RESPONSIBLE FOR SUCH DAMAGE, INJURY, ILLNESS AND/OR DEATH, INCLUDING WITHOUT LIMITATION, CAUSED BY COVID-19, EVEN IN THE EVENT OF NEGLIGENCE OR FAULT BY COMPANY, WHETHER SUCH NEGLIGENCE IS PRESENT AT THE SIGNING OF THIS AGREEMENT OR TAKES PLACE IN THE FUTURE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER, FOR HIMSELF/HERSELF AND ON BEHALF OF ANY FAMILY MEMBER, GUEST, INVITEE, LICENSEE, TRESPASSER, OR ANY OTHER PERSON ACTING UNDER THE DIRECTION OR SUPERVISION OF CUSTOMER OR OTHERWISE BEING ON THE PREMISES OF CUSTOMER, WHETHER SUCH PERSON’S LOCATION AT SUCH PREMISES WAS PERMISSABLE OR IMPERMISSABLE (EACH, A “CUSTOMER PARTY”) IN ANY WAY USING THE EQUIPMENT, HEREBY IRREVOCABLY AND UNCONDITIONALLY RELEASES, WAIVES, AND FOREVER DISCHARGES COMPANY AND EACH COMPANY PARTY, FROM ANY AND ALL CLAIMS RESULTING FROM, ARISING OUT OF, OR RELATED TO CUSTOMER OR ANY CUSTOMER PARTY’S USE, ACT, OR OMISSION WITH RESPECT TO THE EQUIPMENT.

(d) All provisions and obligations set forth in this Section 10 will survive the expiration or earlier termination of this Agreement.

10. WAIVER

No waiver by Company or Customer of a breach of any of the terms, covenants and conditions of this Agreement by the other Party shall be construed or held to be a waiver of any succeeding or preceding breach of the same or any other term, covenant or condition herein contained. No waiver of any default by Company or Customer hereunder shall be implied from any omission by the other Party to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect a default other than as specified in such waiver.

11. ENTIRE AGREEMENT and MODIFICATION; ASSIGNMENT

This Agreement constitutes the entire agreement between the Parties. No modification or amendment of this Agreement shall be effective unless in writing signed by both Parties. The Agreement replaces any and all prior Agreement between the Parties. Customer shall not assign or sublease any interest in the Agreement or the Equipment or the Software or permit the Equipment or the Software to be used by anyone other than the Customer, without Company’s prior written consent.

12. GOVERNING LAW

This Agreement (and the rights and obligations of the Parties with respect to their relationship under this Agreement) are governed by and must be construed and enforced in accordance with the laws of the State of Texas, excluding its conflict of laws rules to the extent such rules would apply the law of another jurisdiction. The Parties hereto consent to the jurisdiction of all federal and state courts in Texas, and agree that venue lies in Dallas, Texas.

13. SEVERABILITY

In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.

14. ADDENDUMS

Depending on which satellite service provider Customer selects in connection with the Services, the following addendums will also apply and govern Customer’s receipt of the Services:

14.1 IRIDIUM SATELLITE SERVICE EULA ADDENDUM
ANY PURCHASE OR USE OF AN IRIDIUM PRODUCT IS EXPRESSLY SUBJECT TO THE TERMS AND CONDITIONS OF THIS SEPARATE APPENDIX, AS MAY BE PERIODICALLY UPDATED. Purchaser affirms that it has read and agrees to this Iridium Satellite Service EULA Addendum as follows. In the event of conflict between these terms and those in the body of the Agreement, the addendum controls:

DISCLOSURE OF USER INFORMATION

By using any product using Iridium Satellite Services Purchaser consents to Iridium’s disclosure of user information, including but not limited to name, address, telephone number and location information, including, where available, the geographic coordinates of equipment, to governmental and quasi-governmental agencies where Iridium deems it necessary, in its sole discretion, to respond to an exigent circumstance.

LIMITED WARRANTY

Purchaser is required to comply with the terms of the Limited Warranty offered by Iridium, as well as all terms and conditions that are provided by Iridium and Geoforce, as such terms and conditions may change from time to time. Iridium may establish additional terms and conditions for Geoforce, and Geoforce may also establish additional terms and conditions from time to time. In the event any Iridium term or condition conflicts with any Geoforce term or condition, the Iridium term or condition shall govern with respect to Iridium liability. Geoforce will be provided with notice of any new Iridium terms and conditions or any changes in the Iridium terms and conditions which will be effective as of its receipt.

MODIFICATION OF 9603 MODEM COMPONENT OF GT2

Purchaser may not modify the 9603 Iridium Modem (the “9603”) or any component of the 9603. Purchaser may not reverse-engineer, or attempt to reverse-engineer, the 9603, any component of any 9603 or the manner in which the 9603 connects to, sends information to, receives information from, or otherwise interacts with the Iridium system.
Purchaser is required to comply with all applicable laws and regulations in its use of the 9603. To the extent that Purchaser either: (i) violates Iridium’s Limited Warranty, the terms and conditions applicable to the Iridium system or other agreements between Geoforce and Iridium, or between Geoforce and Purchaser; (ii) utilize a product other than Iridium-Certified Equipment with the 9603 or on the Iridium system; (iii) modify the 9603 or any 9603 component, reverse-engineer the 9603 or any 9603 component or attempt to do so; or (iv) violate any applicable laws or regulations (collectively “Unauthorized Use”), Purchaser agrees to defend, indemnify and hold Iridium harmless with respect to any claims or actions by governmental entities or other third parties related to the Unauthorized Use and to pay all costs, damages, fines and other amounts incurred by us, or on Iridium’s behalf, in the defense of any such claims or actions. Further, Iridium specifically disallows any liability and will not credit back airtime charges related to any unauthorized use. In addition to Iridium’s express reservation of other remedies available, Iridium reserves the right to discontinue providing Iridium Satellite Services to the Purchaser and/or to disable their 9603’s access to the Iridium system. If Iridium reasonably believes that the user is in engaged in any Unauthorized Use, Iridium may seek equitable relief to prevent such unauthorized use without having to wait to see if damage to the Iridium system occurs.

SOFTWARE LICENSE

To the extent Purchaser obtains the right to use any firmware or other Iridium software the following terms apply:
4.1 License. Conditioned upon compliance with the terms and conditions of this Limited Warranty, Iridium grants to Purchaser a nonexclusive and nontransferable license to use the Software and the Documentation (the “License”). “Documentation” means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) pertaining to the Software and made available by Iridium with the Software in any manner. You shall use the Software solely as embedded in (or, if downloaded, as provided via download), for execution on, and for communication via the Iridium system. No other licenses are granted, by implication, estoppel or otherwise.

4.2 General Limitations. This is a license, not a transfer of title, to the Software and Documentation, and Iridium retains ownership of all copies of the Software and Documentation. Purchaser acknowledges that the Software and Documentation contain trade secrets of Iridium or its suppliers or licensors, including but not limited to the specific internal design and structure of individual programs and associated interface information. Except as otherwise expressly provided, Purchaser shall have no right, and specifically agrees not to: (i) transfer, assign or sublicense its license rights to any other person or entity (other than in compliance with any Iridium relicensing/transfer policy then in force), or use the Software on unauthorized or secondhand Iridium equipment, and acknowledges that any attempted transfer, assignment, sublicense or use shall be void;(ii) make error corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software, or permit third parties to do the same;(iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction;(iv) use or permit the Software to be on a service bureau or time sharing basis or otherwise, without the express written authorization of Iridium; or(v) disclose, provide, or otherwise make available trade secrets contained within the Software and Documentation in any form to any third party without the prior written consent of Iridium. Purchaser shall implement reasonable security measures to protect such trade secrets.

To the extent required by law, and at Purchaser’s written request, Iridium shall provide Purchaser with the interface information needed to achieve interoperability between the Software and another independently-created program, on payment of Iridium’s applicable fee, if any. Purchaser shall observe strict obligations of confidentiality with respect to such information and shall use such information in compliance with any applicable terms and conditions upon which Iridium makes such information available.

4.3 Software, Upgrades and Additional Copies. “Software” shall include computer programs, including firmware, as provided to You by Iridium or Geoforce, and any upgrades, updates, bug fixes or modified versions thereto (collectively, “Upgrades”) or backup copies of any of the foregoing. NOTWITHSTANDING ANY OTHER PROVISION OF THIS LIMITED WARRANTY: (i) UNLESS AUTHORIZED BY IRIDIUM, PURCHASER HAS NO LICENSE OR RIGHT TO MAKE OR USE ANY ADDITIONAL COPIES OR UPGRADES. IRIDIUM MAY MAKE SOFTWARE AVAILABLE BASED ON ADDITIONAL TERMS; (ii) USE OF UPGRADES IS LIMITED TO IRIDIUM EQUIPMENT FOR WHICH YOU ARE THE ORIGINAL END USER PURCHASER OR OTHERWISE HOLD A VALID LICENSE TO USE THE SOFTWARE WHICH IS BEING UPGRADED; AND (iii) THE MAKING AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY.

4.4 Proprietary Notices. You agree to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized, You shall not make any copies or duplicates of any Software without the prior written permission of Iridium.

4.5 Term and Termination. The license granted herein shall remain effective until terminated. Purchaser may terminate the license at any time by destroying all copies of Software and any Documentation. Purchaser’s rights under the license will terminate immediately without notice from Iridium if Purchaser fails to comply with any provision of the license and Limited Warranty. Upon termination, Purchaser shall destroy all copies of Software and Documentation in its possession or control. All of Purchaser’s confidentiality obligations and all limitations of liability and disclaimers and restrictions of warranty shall survive termination.

4.6 Export, Re-Export, Transfer and Use Controls. The Software, Documentation and technology or direct products thereof (hereafter referred to as Software and Technology), supplied by Iridium are subject to export controls under the laws and regulations of the United States (U.S.). Purchaser shall comply with such laws and regulations governing export, re-export, transfer and use of Iridium Software and Technology and will obtain all required U.S. and local authorizations, permits, or licenses. Geoforce and Purchaser each agree to provide the other information, support documents, and assistance as may reasonably be required by the other in connection with securing authorizations or licenses.

4.7 U.S. Government End User Purchasers. The Software and Documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Limited Warranty may be incorporated, Purchaser will acquire, as applicable, the Software and Documentation with only those rights set forth in this Limited Warranty. Use of either the Software or Documentation or both constitutes agreement by the Government that the Software and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.