Software as a Service Agreement

"Assets" mean means industrial machinery and equipment.

"Asset Data" means all data that can be used for artificial intelligence algorithms, statistical information, diagnostic information, or otherwise, that is compiled from the assets, including, but not limited to, information, technical characteristics, industrial processes, TAG numbers, performance data, roles, asset operating conditions, faults, tags, or otherwise, and all other data derived from predictive technologies, or otherwise.

"Cloud Hosting" means the provision of products and services in a hosted, virtualized environment, accessible via the Internet.

"Faults" mean the unhealthy operating condition of an asset as per the diagnostic assessment of the analyst.

"Industrial Plant" means the company that owns the assets and is in charge of their maintenance, unless there is an agreement to the contrary between the Industrial Plant and the Service Company.

"Predictive Technologies" mean the collection of information and data from the assets (including Asset Data), signal processing, and the display of data or images, that will be used to determine the state of condition of the asset, or machine, and its potential faults.

"Service Company" means companies hired to provide predictive maintenance services to its customers, the Industrial Plants, using the Software and Services of Provider.

"Services" means the hosting, system administration, system management and other services provided by Provider pursuant to and subject to this Agreement.

"Software" means the Provider"s proprietary software, including Power-MI.

"Subscription Term" means the period during which the Services and access to the Software will be provided by Provider to Client, including the Initial Term and any Renewal Terms, pursuant to Section 3.

"Tags" mean the operating condition of the assets as per the assessment by the analysts.

"User(s)" means individuals who are authorized by Client to use the Software, including Client's employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Client or on Client's behalf.

"Workspace" means plant configurations, sections, assets, and its characteristics where inspection reports based on predictive technologies are created by the Client or its users with administrative access to the Software.

Grant of Rights. Provider grants to Client a limited, non-exclusive, and non-assignable right to access the Software via the Internet solely for its business operations and subject to the terms of the Agreement during the Subscription Period. Client may allow its Users to use the Services for this purpose and Client is responsible for its Users' compliance with the Agreement.

Cloud-based Software. Client acknowledges that its access and use of the Software will be cloud based, or web based, only, and that the Software will not be installed on any servers or other computer equipment owned. Client acknowledges that Provider has no delivery obligation and will not ship copies of the Software. Client agrees and acknowledges that Client does not acquire under the agreement any license to use the Software. Upon the end or termination of the Agreement or the services thereunder, Client's right to access or use the Software or Services shall terminate.

Unauthorized Use. Client will not make any Service or Software available to, or use any Service or Software for the benefit of, anyone other than the Client and its users. Client will not sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Software, or use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party. Customer will not directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or materials of the Provider; modify, translate, or create derivative works based on the Services or any Software; remove any proprietary notices or labels; or copy, frame or mirror any part or content of the Services or Software.

Initial Term. This Subscription Period shall become effective on the date of payment for the Subscription Period (the "Effective Date") and shall continue until all subscriptions hereunder have expired or have been terminated in accordance with the terms set forth herein. Client shall elect whether the term will consist of monthly, biannual, or annual periods (the "Subscription Period").

Renewal Term. Upon expiration of the Initial Term, the Subscription Period shall automatically renew for successive Subscription Periods on each anniversary of the Effective Date, unless sooner terminated as provided in this Agreement, or unless either party gives written notice of termination to the other party at least fifteen (15) days prior to the end of the Initial Term or any Renewal Term.

Termination for Breach. Notwithstanding Section 3, either Provider or Client may terminate this Agreement (i) upon five (5) days written notice to the other party of a material breach of any of the terms and conditions of this Agreement; and (ii) such breach remains uncured at the expiration of the five (5) day written notice period.

Effect of Breach. In the event the Subscription Period is terminated by either Party for cause, Client shall immediately cease all use of the Software. In the event this Agreement is terminated by Provider as a result of a material breach by Client prior to the completion of the Initial Term or any Renewal Terms, Client shall pay any amounts owed to Provider under this Agreement, if any, including fees owed for the entire Initial Term or any Renewal Term, as the case may be; both parties acknowledge that this payment represents a reasonable estimate of Provider's damages in the event of an early termination. In the event of termination of the Agreement for any reason, Provider will make all Client data available to Client within thirty (30) days.

Client shall pay to Provider the subscription fee (the "Subscription Fee") in the amount and for the duration that Client has entered and agreed to pursuant to this Agreement and any applicable Ordering Document.

The Subscription Fee for the first Subscription Period (either monthly, biannually, or annually, as applicable) of the term of this Agreement shall be paid on the Effective Date. The Subscription Fee for all subsequent Subscription Periods of the term of this Agreement shall be paid to Provider on the first day of each subsequent Subscription Period.

The amount of the Subscription Fee does not include any applicable taxes. Client is solely responsible for any and all applicable taxes.

Client shall provide a valid credit card, ACH payment system information, bank account information authorized for automatic bill paying, or another acceptable method of payment to Provider and shall take all necessary steps to authorize automatic payment of the Subscription Fee. By agreeing to this Agreement, Client hereby authorizes Provider to automatically charge said method of payment for all Subscription Periods during the term of this Agreement. If, for any reason, automatic payment shall be denied, then Client shall pay the applicable Subscription Fee, together with a $30.00 late fee, to Provider within five (5) days of notice from Provider.

Refund. Clients who have purchased an initial Subscription Period of one year, i.e. an annual subscription, may request a refund in full at any time within the first thirty (30) days after contracting with Provider if they are not satisfied with the Software. Please note this refund policy is only applicable to the initial annual subscription period, and not subsequent annual subscriptions.

In case of exceeding the number of assets of the contracted subscription, the subscription and the price will be automatically updated. In the case of annual subscriptions, the proportional part of the year will be charged. The owner-user will receive an email prior to applying the changes. In case of not accepting the new price, the client will have to delete assets until the contracted number of assets is reached.

Any additional payment terms between Provider and Client shall be agreed to in writing and set forth in an invoice, billing agreement, or other written document.

Client agrees that the Software and Services are proprietary products and services and that all right, title and interest in and to the Services and Software, including without limitation, all associated intellectual property rights such as trademarks and copyrights, are and shall at all times remain with Provider and its third party licensors. The Software contains trade secret and proprietary information owned by Provider or its third party licensors. Client shall not copy or distribute the Software for any purpose. Furthermore, Provider retains all ownership and intellectual property rights to anything developed and delivered under the Agreement.

Notwithstanding anything to the contrary herein, Provider shall have the right to collect and analyze Asset Data and other information relating to the provision, use, and performance of various aspects of the Services and Software (including, without limitation, information concerning Asset Data and data derived therefrom), and Provider, during and after the term hereof, (i) will be free to use such Asset Data to improve and enhance the Services and Software and for other development, diagnostic, statistical, and corrective purposes; and (ii) shall have the right to compile and sell to the public any and all Asset Data, including the results derived from analyzing Asset Data, provided that such information and data is adequately masked and anonymized and does not identify Client or Client's customers, e.g. the Industrial Plants, as the case may be. Provider retains all intellectual property rights in such information. No rights or licenses are granted except as expressly set forth in this Agreement.

Ownership of Workspace, Reports, and Asset Data. Service Companies and its customers (the Industrial Plants) shall agree to ownership of the Workspace and the Reports in the Software. Once agreed, the Client shall inform Provider regarding ownership of the Workspace and the Reports. In the event there is no agreement between the Service Companies and the Industrial Plants, the Provider will assume by default that the ownership of the Workspace and the Reports belongs to the customers of the Service Companies, the Industrial Plants. Asset Data that is masked and anonymized in a way that does not identify the Client, whether that Client is a Service Company or the Industrial Plant, is the exclusive property of and is owned by the Provider. In the case of Service Companies that contract with the Provider, the same has an obligation to inform its customers, the Industrial Plants, that ownership of masked and anonymized Asset Data is the property of and is owned by the Provider.

Confidential Information. For purposes of this Agreement "Confidential Information" shall mean (i) any and all information that is confidential to each Party, that is reasonably understood to be confidential or proprietary, or that which is disclosed by either party to the other verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary; (ii) the terms and pricing under this Agreement; and (iii) Asset Data that is uploaded to the Software.

Exclusions. Confidential Information excludes Asset Data that is masked and anonymized for the uses stated in Section 5.2 and excludes information that: (i) was or becomes publicly known through no fault of the receiving Party; (ii) was rightfully known or becomes rightfully known to the receiving Party without confidential or proprietary restriction from a source other than the disclosing Party; (iii) is independently developed by the receiving Party without the participation of individuals who have had access to the Confidential Information; (iv) is approved by the disclosing Party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing Party; and (v) the receiving Party is legally compelled to disclose; provided, however, that prior to any such compelled disclosure, the receiving Party will (a) assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (b) cooperate fully with the disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event that such protection against disclosure is not obtained, the receiving Party will be entitled to disclose the Confidential Information, but only as, and to the extent, necessary to legally comply with such compelled disclosure.

Non disclosure. During the term of this Agreement and for a period of three (3) years thereafter, each Party agrees to maintain all Confidential Information in confidence to the same extent that it protects its own similar Confidential Information, but in no event using less than reasonable care, and to use such Confidential Information only as permitted under this Agreement; each Party agrees to only disclose the other Party's Confidential Information to its employees on a need to know basis and who are informed of the non-disclosure/non-use obligations imposed by this Section. Both parties shall take steps each determines appropriate to implement and enforce such non-disclosure/non-use obligations.

Support. Subject to the terms of this Agreement, Provider will provide Client with reasonable technical support through electronic communication.

Accessibility and Maintenance. Provider shall use commercially reasonable efforts to make the Services and Software available to Client during the Subscription Period. Provider will provide Client with access to the latest supported version of the Software via the Internet from the third-party hosting provider. Client acknowledges and understands that there may be occasions when the Subscription Period, Software or Services, Website, or other, will be interrupted or temporarily unavailable for maintenance, upgrades, or repairs, whether by Provider or by its third-party hosting provider, or due to failure of telecommunications links and equipment. Provider will take reasonable steps to minimize such disruption where it is within Provider's control.

Mutual Warranties. Each Party represents and warrants that it has the right and authority to enter into this Agreement, and that by entering into this Agreement, it will not violate, conflict with or cause a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien or encumbrance to which it is a party or by which it or any of its property is or may become subject or bound.

Compliance with the Laws. Each Party represents and warrants that no consent, approval or authorization of or designation, declaration or filing with any governmental authority is required in connection with the valid execution, delivery, and performance of this Agreement. Each Party shall, at its own expense, comply with all laws, regulations and other legal requirements that apply to it and this Agreement, including copyright, privacy and communications decency laws.

Limited Warranty. Provider shall use reasonable efforts consistent with prevailing industry standards to provide and maintain the Services and Software in a manner that minimizes errors and interruptions, and shall perform the Services in a professional and workmanlike manner. Furthermore, the Provider warrants that (i) the Services and Software shall perform substantially in accordance with the Specifications, and (ii) that the functionality of the Software shall not be materially decreased during the term of this Agreement. However, Provider does not warrant that the services will be uninterrupted or error free.

Remedies. If the services provided to Client for any given month during the Subscription Period were not performed as warranted, you must provide written notice to Provider no later than five business days after the last day of that particular month. During the Subscription Term, if the Software fails to comply with the Limited Warranty, Provider's entire liability and Client's exclusive remedy will be to repair or replace the Software. This limited warranty is void if failure of the Software has resulted from accident, abuse, misuse or negligence of any kind in the use, handling or operation of the Software, including any use not consistent with any documentation or training provided. Provider's entire liability and Client's exclusive remedy for any breach of the Services Warranty shall be Provider's repeating the Services performed.

DISCLAIMER.
EXCEPT AS PROVIDED IN THIS SECTION, THE SOFTWARE AND THE SERVICES HEREUNDER ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY WHATSOEVER. CLIENT RECOGNIZES THAT THE "AS IS" CLAUSE OF THIS AGREEMENT IS AN IMPORTANT PART OF THE BASIS OF THIS AGREEMENT, WITHOUT WHICH PROVIDER WOULD NOT HAVE AGREED TO ENTER INTO THIS AGREEMENT. PROVIDER DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY CLIENT IN USING THE SOFTWARE OR THE SERVICES, OR THAT THE SOFTWARE OR THE SERVICES WILL MEET CLIENT's REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE AND THE DELIVERY OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CLIENT ACKNOWLEDGES THAT PROVIDER DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. THE PROVIDER EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE AND THE SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, REGARDING THE SOFTWARE OR THE SERVICES SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF PROVIDER WHATSOEVER. CLIENT ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTY IN THIS AGREEMENT.

Client Acknowledgements. Client is solely responsible for the content of any postings, data, or transmissions using the Services or Software, or any other use of the Services by Client or by any person or entity Client permits to access the Services. Client represents and warrants that it will not use the Services in a manner that (i) is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; or (ii) will disrupt a third parties' similar use or Licensed Materials; or (iii) not violate or tamper with the security of any Provider program. If Provider has reasonable grounds to believe that Client is utilizing the Services for any such illegal or disruptive purpose, Provider may suspend the Services immediately with or without notice to Client. Provider may terminate the Agreement if Client in fact fails to adhere to the foregoing acceptable use standards. Client acknowledges that Provider will not backup individual Asset Data or machine or industrial data.

PROVIDER'S MAXIMUM LIABILITY FOR ANY ACTION ARISING UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION AND WHETHER IN TORT, CONTRACT OR OTHER FORM OF LIABILITY, WHETHER ARISING WITHIN THE UNITED STATES OR ANY OTHER JURISDICTION, SHALL IN NO EVENT EXCEED THE FEES PAID BY CLIENT DURING THE ONE-YEAR PERIOD PRECEDING NOTICE TO PROVIDER OF CLIENT'S LOSS. IN NO EVENT SHALL PROVIDER BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST DATA, LOST PROFITS, OPPORTUNITIES OR CONTRIBUTIONS, LOSS OF USE, GOODWILL, BUSINESS INTERRUPTION, OR OTHER PECUNIARY OR NON-PECUNIARY LOSS, HOWEVER ARISING, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE TO THE ALLOCATION OF RISK SET FORTH HEREIN. CLIENT ACKNOWLEDGES THAT THE FEES PAID BY IT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT PROVIDER WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

FURTHER, NEITHER PROVIDER NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, LOSSES, COSTS OR DAMAGES ARISING IN CONNECTION WITH: (A) CLIENT'S INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR CLIENT'S USE OF OR ACCESS TO THE SERVICES, (II) PROVIDER'S DISCONTINUATION OF ANY OR ALL ACCESS TO THE SERVICES, OR (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE ACCESS TO THE SERVICES FOR ANY REASON WHATSOEVER, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CLIENT TO ANY THIRD PARTIES IN CONNECTION WITH THIS AGREEMENT OR CLIENT'S USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, DENIAL OF ACCESS, OR FAILURE TO MAINTAIN OR STORE ANY OF CLIENT'S CONTENT OR OTHER DATA.

By Provider. Provider, at its sole cost and expense, shall defend the Client against claims alleging that the Services or Software infringe on a third party's U.S. patent, copyright or trademark, provided that Provider is given prompt notice of such claim not later than thirty (30) days after the Client receives notice of the claim; gives the Provider sole control of the defense and any settlement negotiations; and gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim. In the defense or settlement of any claim relating to the Software or Services, Provider may, in its reasonable judgment and at its option and expense: (i) attempt to obtain for Client the right to continue using the Software; (ii) replace or modify the Software or so that it becomes non-infringing while giving substantially equivalent functionality; or (iii) if Provider determines the remedies in (i) or (ii) are not commercially reasonable, as its sole obligation, terminate the Subscription Period. Provider shall have no liability to indemnify and defend Client to the extent: (i) the alleged infringement is based on infringing information, data, software, applications, services, or programs created or furnished by or on behalf of Client; (ii) the alleged infringement is the result of a modification made by anyone other than Provider; or (iii) Client uses the Software or other Work Product other than in accordance with this Agreement or any documentation delivered by Provider. This Section states Provider's entire liability and Client's sole and exclusive remedy for claims relating to infringement.

By Client. Client shall indemnify, defend and hold harmless Provider from and against all losses, liabilities, claims, costs, damages and expenses, including attorneys' fees and costs, paid or incurred in connection with any third party claims (i) resulting from Client's use of the Software or Services; (ii) that any Client Content infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, intellectual property, trade secrets or licenses; or (iii) arising from or relating to Client's or its users' failure to comply with this Agreement.

Trial Period. Unless otherwise specified, you may use the Software for thirty (30) days for trial and demonstration purposes subject to the terms and conditions of this Agreement. Services and Software acquired for these purposes are provided "as is" and Provider does not offer any warranties for such services.

Assignment. This Agreement may not be assigned by Client without the express written consent of the Provider. Any purported assignment or transfer by Client in violation of this Section will be null and void. This Agreement may be assigned or transferred by Provider without the prior written consent of Client, although Provider must give reasonable notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of any permitted successors or assigns.

Notices and Demands. All notices, demands, or communication required to be given by this Agreement, or otherwise, shall be in writing and will be effective when actually delivered if sent by Certified Mail, Postage Prepaid, Return Receipt Requested, or delivered personally. The Provider's address for notices, demands, and communications is 18501 Pines Blvd., Pembroke Pines, FL 33029. The Client's address for the same is the address as provided in the Client's billing information.

Governing Law and Venue. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware without giving effect to the conflicts of laws provisions thereof.

Binding Arbitration, Waiver of Right of Jury Trial, and Waiver of Rights of Class, Consolidated or Representative Actions. Any dispute or claim relating in any way to the Client's use of the Software or Services will be resolved by binding arbitration, rather than litigation. The Parties irrevocably agree that the arbitration shall be conducted by the American Arbitration Association (AAA). The Client's acceptance of this Agreement or use of the Software and Services constitutes their acknowledgment to agree to binding arbitration, waiver of their right to a jury trial, and waiver of their rights of class, consolidated or representative actions. Client acknowledges that this Paragraph 11.5 has been reviewed by their counsel and that Client understands the implications of arbitration.

Force Majeure. Provider will not be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the Provider's reasonable control, including but not limited to fire, flood, storm, war, malicious damage, failure of a utility service or transport or telecommunications network.

Entire Agreement; Modification. This Agreement constitutes the entire understanding and agreement with respect to the subject matter of this Agreement, and it supersedes all prior understandings and agreements, whether written or oral, and all prior dealing with respect to the subject matter thereof. This Agreement, in whole or in part, can be modified by Provider at any time at any time by posting a revised version on its website and/or by otherwise notifying the Client. The modified terms will become effective upon posting or, if Provider notifies the Client by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to this Agreement, Client agrees to be bound by the modified terms. It is the Client's responsibility to check the referenced websites regularly for modifications to this Agreement. Client cannot change, modify, extend or discharge this contract.

Severability. If any provision, sentence, phrase or word of this Agreement or the application thereof to any Person or circumstance shall be held invalid, the remainder of this Agreement, or the application of such provision, sentence, phrase or word to Persons or circumstances, other than those as to which it is held invalid, shall not be affected thereby.

Waiver. No consent or waiver, express or implied, with respect to any breach or default shall be deemed to be a consent or waiver with respect to any other breach or default. No waiver of compliance with any provision or condition hereof and no consent provided for herein shall be effective unless evidenced in writing. Further, no consent or waiver, express or implied, to or of any breach or default shall constitute a consent or waiver to or of any other breach.

Audit Rights. Provider may audit your use of the Software and Services and compliance with this Agreement. You agree to cooperate with Provider's audit and provide reasonable assistance and access to information. However, any audit will not unreasonably interfere with your normal business operations.