MASTER SUBSCRIPTION AND SERVICES AGREEMENT

This Master Subscription Agreement (“Agreement”) is entered into by and between Atheer, Inc. (“Atheer”) and the organization placing an order for or otherwise obtaining services from Atheer (“Customer”). This Agreement shall be effective on the earliest to occur of a) the date Customer clicks a button, checks a box, or otherwise similarly indicates online its agreement with the terms of this Agreement; b) Customer entering into an Order Form or similar form referencing or otherwise incorporating this Agreement; or c) Customer’s first use of the Services (the “Effective Date”). Atheer and Customer are referred to individually as a “Party” and collectively as the “Parties.” Capitalized terms not defined herein have the meanings stated in the Order Form.

Free trials and services are governed by this Agreement as stated in the terms below.

If you are entering into this Agreement on behalf of your organization, that organization is deemed to be the Customer and you represent that you have the power and authority bind that organization to this Agreement.

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICES (INCLUDING ANY FREE TRIALS OR SERVICES), YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICES. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.

Modifications: From time to time, Atheer may modify this Agreement. Unless otherwise specified by Atheer, changes become effective upon renewal of the then-current Subscription Term (defined below) following the date the updated version of this Agreement goes into effect. Atheer will use reasonable efforts to notify Customer of the changes through communications via email, text, in-app notifications, posting them on a customer portal or otherwise through the Service, or by other such means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term, and in any event, continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version. If Customer does not agree to the changes, Customer may terminate this Agreement in accordance with Section 9.2 c) below.

1. ATHEER SERVICES

1.1   Order Form. This Agreement permits Customer to purchase subscriptions to Service (defined below) from Atheer pursuant to one or more mutually executed order forms (“Order Form(s)”) and sets forth the basic terms and conditions under which those Service will be delivered including the subscription period (“Subscription Term”).

1.2. Atheer Service. Subject to the terms of this Agreement including payment of all fees hereunder, Atheer will provide Customer with a subscription to Atheer’s proprietary software-as-a-service front line worker platform (referred to hereafter as “Service”) pursuant to one or more Order Forms. As stated in the applicable Order Form, the Service may include access to the Documentation and to certain Atheer software code in object code format only (“Software”) which Authorized Users may download to use with the Service and with third party smart glasses and other smart mobile device technologies (collectively, “Smart Devices”).

1.3. User Subscriptions. Unless otherwise specified in an Order Form, Subscription fees are based on annual periods (or pro rata portions thereof, calculated on a daily basis) that begin on the Subscription start date and each annual anniversary thereof. Customer will purchase a Subscription to the Service for each of its Authorized Users it wishes to access the Service. The initial number of Authorized Users is reflected in the applicable Order Form. Customer may add Authorized Users on written notice to Atheer (email notice acceptable). At the start of each calendar month, Atheer reserves the right to calculate the total number of Authorized Users as of the last day of the previous calendar month and, if such number of Authorized Users exceeds Customer’s current plan size, then Atheer reserves the right to invoice Customer  for such added Authorized Users on a pro rata basis for the remaining months in Customer’s then-current annual Subscription Term so that all Authorized User Subscription Terms coincide and are co-terminus. As used herein, the term “Authorized User” means an employee of Customer or of an Affiliate of Customer (and, on a case by case basis, with Atheer’s prior written consent, employees of other entities requested by Customer, e.g., Customer’s distributors, partners, etc.) authorized by Customer to access and/or use the Service, and Authorized Users may include only those entities and individuals who are not competitors of Atheer. The term “Affiliate” means any entity that controls, is controlled by, or is under common control with a Party hereto. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests (or equivalent) of the subject entity.

1.4. Access to the Service. Customer may access and use the Service during the Subscription Term solely for its internal business purposes subject to the terms of this Agreement, the end user technical documentation made available to Customer which may be updated from time to time at Atheer’s sole discretion (“Documentation”), and the applicable Order Form (including but not limited to any scope of use restrictions referred to therein). Access to and use of the Service is permitted only by the number of Authorized Users listed in the applicable Order Form for whom a Subscription has been purchased and who have been supplied with user identifications and passwords by Customer. User IDs are granted to named persons on an individual basis, and Customer will ensure that all Authorized Users keep user ID and password information strictly confidential and do not share such information with any unauthorized person. If any Authorized User who has access to a user ID is no longer authorized to access the Service, Customer will promptly delete such user ID and otherwise terminate such Authorized User’s access to the Service.

1.5. Administration of Customer’s Account. Customer may specify one or more Users as administrators (each an “Administrator”) to manage its account, and Atheer is entitled to rely on communications from such Administrators when servicing Customer’s account. Customer is responsible for maintaining the security of User accounts and passwords.

1.6. Atheer Software. To the extent Atheer provides Atheer Software for use with the Service, Atheer grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to use the object code form of the Atheer Software internally, but only in connection with Customer’s use of the Service and in accordance with the Documentation and this Agreement.

1.7. Atheer Responsibilities. Subject to the terms of this Agreement, including but not limited to Customer remaining current with its payment of Fees under the applicable Order Form, Atheer will use commercially reasonable efforts to: a) maintain the security and integrity of the Service and Customer Data; b) provide Client, during the Term, with the technical support services in accordance with or exceeding those located at https://www.atheerair.com/technical-support-agreement/ in connection with Client’s authorized use of the Service (“Support Services”); and c) make the Service available in accordance with or exceeding the service level agreement located at https://www.atheerair.com/service-level-agreement/. Any additional support not referred to above may be offered to Customer for an additional fee pursuant to the terms of an SOW entered into by the parties. .

1.8. Updates to Service. Atheer may update the content, functionality, user interface, and other elements of the Service from time to time in its sole discretion. Atheer reserves the right to deprecate Service elements (including, e.g., APIs and other Service interfaces) with five (5) month prior notice and information on acceptable replacement API(s) or applicable interface. Atheer reserves the right to discontinue Support Services for Atheer Services for which Atheer no longer sells subscriptions. Customer agrees that its purchase of the Service is not contingent upon the delivery of any future features or functionality.

1.9. Professional Services. Atheer may provide certain professional consulting services (“Professional Services”) if purchased under an Order Form or detailed in a Statement of Work executed by the Parties and referencing this Agreement (“SOW”). Except as otherwise expressly stated in an applicable SOW, Customer may use specified work product provided by or on behalf of Atheer as part of the Professional Services solely in support of Customer’s authorized use of the Services subject to the terms of this Agreement including without limitation this Section 1 and the applicable Order Form or SOW, provided, however, that Atheer will retain all right, title, and interest in and to any and all such work product, including without limitation, all code and other deliverables, and any derivatives, enhancements, or modifications thereof, whether created by Atheer, Customer, or any third party.

1.10. Customer Responsibilities. Customer is responsible for access to and use of the Service by its Authorized Users and for its and their compliance with this Agreement, the Order Forms, and Documentation. Customer will: (i) prevent unauthorized or unlawful access to, or use of, the Service, including use of the Service by any number of users in excess of the number of Authorized Users for which subscriptions have been purchased by Customer under an Order Form; (ii) access and use, and cause its Authorized Users to access and use, the Service and Documentation and any Professional Services work product in compliance with this Agreement and all applicable laws; and (c) remain responsible for any and all acts and omissions of Authorized Users and their compliance with the terms of this Agreement and with applicable law. Customer is solely responsible for the accuracy, quality, legality, reliability, and appropriateness of all Customer Data, and Customer will ensure that it has all necessary rights and licenses to transfer the Customer Data to the Service or Atheer so that Atheer and its service providers may lawfully use, process, and transfer the Customer Data on Customer’s behalf hereunder. Customer will promptly notify Atheer if it becomes aware of any unauthorized use or access to Customer’s account or the Service.

1.11. Usage Restrictions. Customer will not (and will not permit any Authorized User or third party to: (i) license, sublicense, resell, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or make all or any portion of the Service available to any third party; (ii) alter, modify or create derivative works of the Service; (iii) frame or mirror any content forming part of the Service other than for Customer’s own internal business purposes; (iv) reverse engineer, decompile, disassemble, or otherwise seek to discover or obtain the source code of any element of the Service (including without limitation any Atheer Software) for any purpose (except to the extent the foregoing restriction is expressly prohibited by applicable law); (v) access the Service to build a competitive product or service, or copy any ideas, features, functions or graphics of the Service; (vi) use the Service to transmit or store any infringing, inappropriate, unlawful or tortious material; (vii) use the Service to transmit or store any malicious code; (viii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (ix) attempt to gain unauthorized access to the Service or its related systems or networks; (x) remove or obscure any proprietary or other notices contained in the Service (including any Documentation or data printed or uploaded from the Service); or (xi) publicly disseminate information regarding the performance of the Service (such as benchmarking results). Customer acknowledges and agrees that the Service are not designed to comply with any industry- or data- specific laws or regulations, and Customer will not, and will ensure that Authorized Users do not, submit, transmit, or solicit any information subject to any such laws or regulations, including but not limited to personal financial information, protected health information (in each case as defined under applicable law), or any personal data deemed to be in a “special category” under applicable data protection law including, for example, information pertaining race, ethnicity, politics, or religious beliefs. Any use of the Service that, in Atheer’s reasonable judgment, threatens the security, integrity, or availability of the Service, or violates any of the foregoing restrictions may result in immediate suspension of the Service.

1.12. Third Party Products and Services. Customer may choose to obtain products and/or services (including but not limited to Smart Devices) that are provided or supported by third parties (collectively, “Third Party Products”) for use with the Service. Such third party products and services are provided pursuant to the terms and conditions of the applicable third party agreement between Customer and such third party, and whether obtained through a third party or through Atheer, Atheer assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any such third party products or services.

1.13. Aggregated and Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that Atheer may collect and use technical and other data about Customer’s and Authorized Users’ use of the Services for purposes including developing, operating, supporting, and improving Atheer’s products and services, to generate industry benchmark or best practice guidance, recommendations, or similar reports for distribution to and consumption including by Customer and other Atheer customers, and otherwise for any business purpose during and after the Term of this Agreement, provided, however, that Atheer shall not publish any such data except to the extent such data is aggregated and de-identified (“Aggregated Anonymous Data”). For clarity, this Section 1.13 does not give Atheer the right to identify Customer as the source of any Aggregated Anonymous Data.

2. PROPRIETARY RIGHTS.

2.1. Atheer Technology. As between Atheer and Customer, Atheer retains all right, title and interest (including all intellectual property rights) in and to the Service, Software, Documentation, Professional Service work product, all related or underlying technology and documentation, and any derivative works, modifications or improvements of any of the foregoing (collectively, “Atheer Technology”). Except as expressly set forth in this Agreement, no rights in any Atheer Technology are granted to Customer, and Atheer expressly reserves all other rights therein and thereto.

2.2. Suggestions. Atheer welcomes feedback from its customers about the If Customer or any Authorized User provides Atheer with any feedback or suggestions regarding the Service (“Feedback”), Atheer may use, disclose, reproduce, sublicense, or otherwise distribute, create derivatives of, and exploit the Feedback without any restrictions or obligations to Customer or any User. Atheer will not identify Customer or any User as the source of such Feedback.

3. CUSTOMER DATA.

As between Customer and Atheer, Customer retains all right, title and interest in and to all electronic data and other information submitted by Customer or Authorized Users to the Service (“Customer Data”). Customer hereby grants Atheer a non-exclusive, worldwide, royalty-free, irrevocable right and license to access, copy, store, transmit, modify, derive from, display, and otherwise use the Customer Data a) for performance of Atheer’s obligations and exercise of Atheer’s rights under this Agreement, b) to provide, maintain, develop, support, and improve the Service, c) to calculate platform benchmarks and perform other analyses based on anonymized or aggregated systems usage data, d) at Customer’s direction or request or as otherwise permitted in writing by Customer; and e) as required by law. Customer represents and warrants that: (i) Customer has all necessary rights and permissions in and to the Customer Data to grant to Atheer the rights set forth in this Agreement; and (ii) Customer’s use of the Service and Customer Data will at all times comply with Customer’s privacy policies and with all applicable laws and regulations (including without limitation, laws related to data privacy and export control).

4. FEES AND PAYMENT.

4.1. Fees and Payment. Unless otherwise expressly provided in an Order Form, Customer will pay all fees within thirty (30) days of invoice date. Any late payment will be subject to interest that accrues at a rate of the lower of one and one half per cent (1.5%) per month or the highest rate permitted by law, plus the costs of collection. Except as otherwise provided in the Order Form, all fees will be invoiced and paid in U.S. dollars, are based on products and services purchased and not on actual usage, and are non-cancellable and non-refundable. The fees do not include, and Customer will be solely responsible for, any and all direct or indirect local, state, federal or foreign sales, use, GST, value-added withholding, or similar taxes or levies, other than taxes based on the Atheer’s income. Such taxes or levies will not be considered a part of, a deduction from, or an offset against fees or other amounts due hereunder. If applicable, Customer will provide evidence of its exemption from applicable taxes.

4.2. Professional Services Fees and Expenses. Professional Services are provided on a time-and-materials or fixed-fee basis, as specified in an applicable Order Form or SOW (for purposes of this Section 4.2, referred to collectively as “ordering document(s)”). Any amount set forth in a time-and-materials SOW is solely a good-faith estimate provided for Customer’s budgeting purposes and Atheer’s resource scheduling purposes and is not a guarantee that the full scope of Professional Services will be completed for the estimated fee. Atheer will provide only those Professional Services as directed and requested by Customer and only based upon the aggregate number of Professional Services hours set forth in the applicable ordering document. Unless otherwise expressly stated in the applicable ordering document, charges for time-and-materials engagements will be invoiced monthly and charges for fixed-fee engagements will be invoiced in advance according to the stated fee schedule. Unless otherwise stated in an applicable ordering document, Customer will reimburse Atheer for reasonable travel and out-of-pocket expenses as incurred. No payment of any fees for access to the Service or of any other amounts under this Agreement will be contingent upon performance or completion of any Professional Services.

4.3. Suspension of Service. If Customer’s payment of any outstanding amount is ten (10) days or more overdue, or if Atheer in good faith believes that Customer or any Authorized User is engaging in unauthorized conduct in its use of the Service in violation of the terms of this Agreement, then in addition to any of its other rights or remedies, Atheer reserves the right to suspend Customer’s access to the Service and/or delivery of Professional Services, as applicable, without liability to Atheer, until, as applicable, such amounts are paid in full or until Customer can demonstrate such unauthorized conduct has ceased and reasonable steps have been take to prevent any reoccurrence. Unless this Agreement has been terminated, Atheer will restore Customer’s access to the applicable Service promptly after Customer has resolved the issue requiring suspension.

4.4.  Authorized Reseller. For any Service acquired by Customer through a third party expressly authorized by Atheer for such purpose (“Authorized Reseller”), Sections 4.1 (Fees and Payment) and 4.2 (Professional Services Fees and Expenses) will not apply, and Customer will contract directly with the applicable Authorized Reseller with respect to payment for the purchase of the applicable Service provided hereunder. All other terms of this Agreement will continue to apply to Atheer and Customer as stated herein.

5. CONFIDENTIALITY.

Each Party agrees that all information (including but not limited to business, technical, and financial information, code, inventions, and know-how) that one Party (“Recipient”) obtains from the other Party (“Disclosing Party”) constitutes the confidential property of the Disclosing Party (“Confidential Information”) whether identified as confidential at the time of disclosure or should be reasonably understood by the Recipient to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. In addition to the foregoing, this Agreement, the Documentation, the Service, Professional Services, related fees and pricing information, and any performance information (e.g., benchmarking results) relating to the Service or Professional Services are is Confidential Information of Atheer. Except as expressly authorized herein, Recipient will a) hold in confidence all Confidential Information of the Disclosing Party, taking precautions that it would take for its own Confidential Information of a similar nature but in any event using no less than a reasonable level of care, and b) not disclose or use any Confidential Information except in furtherance of this Agreement and as otherwise expressly permitted herein. Recipient may share the Disclosing Party’s Confidential Information with Recipient’s employees, advisors, and contractors (which are not competitors of the Disclosing Party) (collectively, “Representatives”) who need to know such Confidential Information for purposes of operation of this Agreement, provided that such Representaives have been advised by Recipient of the confidential nature of such information, are legally bound to protect the confidentiality of such information in  a manner at least as protective as the terms hereof, and where Recipient is and shall remain fully liable for any breach hereof by its Representatives. The nondisclosure obligations herein will not apply to information which the Recipient can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become generally available to the public through no fault of the Recipient; (iii) is rightfully obtained by the Recipient from a third party without breach of any confidentiality obligation; or (iv) is independently developed by or for the Recipient without use of or reference to Disclosing Party’s Confidential Information. The Recipient may disclose the Disclosing Party’s Confidential Information if it is required to do so pursuant to any applicable law, rule, regulation or order of any court or government agency of competent jurisdiction, or as required pursuit to any legal process. Recipient will, to the extent legally permitted, provide the Disclosing Party with prior written notice of such requirement, will limit such disclosure only to that information strictly required to be disclosed, and will make commercially reasonably efforts to seek confidential treatment of such information so disclosed. Each Party acknowledges that breach of this Section 5 may cause immediate and irreparable harm to the Disclosing Party and that the Disclosing Party will be entitled, in addition to any other available remedies, to seek injunctive and other equitable relief, without the posting of a bond or the necessity of showing actual monetary damages.

6. WARRANTIES; DISCLAIMER.

6.1. Mutual Warranties. Each Party represents and warrants to the other Party that it has the power and authority to execute, deliver, and perform its obligations under this Agreement without breach of any obligation owed to any third party.

6.2. Limited Warranty. Atheer warrants, for Customer’s benefit only, that the Service will operate in substantial conformity with the applicable Documentation. Customer’s sole and exclusive remedy for any breach of this warranty will be, at no charge to Customer, for Atheer to use commercially reasonable efforts to correct the reported non-conformity pursuant to the technical support terms.

6.3. Professional Services Warranty. Atheer warrants that the Professional Services will be performed in a professional and workmanlike manner. For any breach of the foregoing warranty, as Atheer’s sole liability and Customer’s exclusive remedy, Atheer will, subject to the terms of the applicable Order Form or SOW including without limitation any acceptance terms contained therein, use commercially reasonable efforts to correct any resulting deficiency in applicable Professional Service.

6.4. Exclusions. The limited warranties set forth in Sections 6.2 and 6.3 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications, or combination of the Service with systems or services not provided by Atheer, or by any third-party software, services, or hardware (including but not limited to Smart Devices), (iii) if arising in connection with a Force Majeure Event, or (iv) to any products or services provided at no-charge, including but not limited to use on a trial or evaluation basis.

6.5. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES, PROFESSIONAL SERVICES, ATHEER TECHNOLOGY, THIRD PARTY PRODUCTS (INCLUDING BUT NOT LIMTIED TO SMART DEVICES), FREE TRIAL, AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND, EXCEPT AS EXPRESSLY PROVIDED IN  SECTIONS 6.2 AND 6.3, ATHEER AND ITS AFFILIATES AND THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ATHEER DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SERVICES, NOR DOES ATHEER MAKE ANY WARRANTY, GUARANTY, OR OTHER COMMITMENT RELATED TO THE ACCURACY OR COMPLETENESS OF ANY RESULTS CUSTOMER OR ITS USERS MAY OBTAIN BY USING THE SERVICES (INCLUDING ANY PREDICTIONS OR ANALYTICS INCLUDED IN SUCH RESULTS), AND CUSTOMER IS SOLELY RESPONSIBLE FOR ITS USE AND RELIANCE ON ANY SUCH RESULTS. ATHEER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE, OR THAT ATHEER WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. ATHEER IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY RELATED TO DELAYS, DELIVERY FAILURES, INTERCEPTION, ALTERATION, OR OTHER DAMAGE RESULTING FROM MATTERS OUTSIDE OF ITS REASONABLE CONTROL, INCLUDING PROBLEMS INHERENT IN THE USE OF THE INTERNET, MOBILE, AND PERSONAL COMPUTING DEVICES, TRANSMISSION OF ELECTRONIC COMMUNICATIONS OVER THE INTERNET OR OTHER NETWORKS, AND THIRD PARTY HOSTING SERVICE PROVIDERS.

7. LIMITATION OF LIABILITY.

7.1. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS RESPECTIVE AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, LOSS OF USE,  ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA,  COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. FOR THE AVOIDANCE OF ANY DOUBT, UNDER NO CIRCUMSTANCES WILL ATHEER HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, RESULTING FROM ANY PERSONAL INJURY, DEATH OR PROPERTY DAMAGE, ARISING FROM SMART DEVICES OR FROM ANY CUSTOMER-PROVIDED PRODUCTS OR SERVICES.

7.2. Limit of Liability. EXCEPT FOR FEES DUE HEREUNDER AND CLAIMS FOR A PARTY’S BREACH OF SECTION 1.11 (USAGE RESTRICTIONS), IN NO EVENT WILL THE TOTAL LIABILITY OF EITHER PARTY OR ITS RESPECTIVE AFFILIATES AND SUPPLIERS FOR ALL CLAIMS IN THE AGGREGATE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ORDER FORM OR SOW HEREUNDER (WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO ATHEER UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH LIABILITY, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY STATED HEREIN OR ELSEWHERE IN THIS AGREEMENT, ATHEER WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO FREE TRIALS (DEFINED BELOW) OR ANY LIABILITY OF ANY KIND WITH RESPECT THERETO UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE ATHEER’S LIABILITY FOR FREE TRIALS WILL NOT EXCEED $500.

7.3. The provisions of this Section 7 allocate the risks under this Agreement between the Parties, and the Parties have relied on these limitations in determining whether to enter into this Agreement.

8. INDEMNIFICATION.

8.1. Indemnity by Atheer. Atheer will defend Customer from and against any claim by a third party alleging that the Service infringe any copyright, trade secret, trademark or United States patent and will indemnify and hold Customer harmless from and against any damages and costs (including reasonable attorneys’ fees) finally awarded against Customer or agreed in settlement by Atheer resulting from such claim. If any claim which Atheer is obligated to defend has occurred, or in Atheer’s determination is likely to occur, Atheer may, in its sole discretion and at its option and expense: a) obtain for Customer the right to continue using the allegedly infringing item; b) substitute a non-infringing replacement for such item with substantially equivalent functionality; or c) if in Atheer’s opinion neither item a) or b) are reasonably available, terminate the Agreement and issue a pro-rata refund to Customer of the prepaid, unused fees for period of the Subscription Term following such termination. The foregoing indemnification obligations will not apply if Customer settles or makes any admissions with respect to a claim without Atheer’s prior written consent or if such claim arises out of: (1) use of the Service in combination with any software, hardware, network or system not supplied by Atheer (including without limitation any Smart Devices); (2) any modification or alteration of the Service other than by Atheer; (3) Customer’s continued use of the allegedly infringing item after being informed of a modification that would avoid the alleged infringement; or (4) use of the Service other than in accordance with the terms of this Agreement. This Section 8 sets forth Atheer’s sole liability and Customer’s exclusive remedy for claims of intellectual property infringement.

8.2. Indemnity by Customer. Customer will defend Atheer from and against any and all third party claims arising out of or related to any Customer Data and Customer will indemnify and hold Atheer harmless from and against any damages and costs (including reasonable attorneys’ fees) finally awarded against Atheer or agreed in settlement by Customer resulting from such claim.

8.3. Indemnification Process. The indemnifying Party’s obligations in this Section 8 are subject to receiving from the indemnitee: a) prompt written notice of the claim, b) the exclusive right to control and direct the investigation, defense, and settlement of the claim and c) all reasonably requested cooperation and information at the indemnifying Party’s expense for reasonable out-of-pocket costs. Failure to give prompt notice of a claim will not constitute a waiver of the indemnitee’s right to indemnification and will relieve the indemnifying Party of its obligations under this Section 8 only to the extent that the indemnifying Party’s rights are materially prejudiced by such failure or delay. The indemnifying Party may not settle any claim that would bind the indemnified party to any obligation (other than ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified Party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.

9. TERM AND TERMINATION.

9.1. Term. The term of this Agreement commences on the Effective Date and will, unless earlier terminated per Section 9.2 below(“Term”).

9.2. Termination.

a) Either Party may terminate this Agreement or any Order Form or SOW hereunder if the other Party: (i) fails to cure any material breach of this Agreement (or of the applicable Order Form or SOW) including without limitation any of the events set forth in Section 4.3 (Suspension of Service) within thirty (30) days of receipt of  written notice from the other Party detailing the scope and nature of material breach, except that termination will take effect on notice in the event of a breach of Section 1.11 (Usage Restrictions); or (ii) effective immediately and without notice if the other Party ceases to do business or otherwise terminates its operations, except as a result of a permitted assignment hereunder or if the other Party becomes subject to any bankruptcy, receivership, trust deed, creditor’s arrangement, or comparable proceedings that are not dismissed within sixty (60). Upon termination of this Agreement, any ongoing Order Forms or SOWs that not expressly terminated per the foregoing will continue under their respective terms pursuant to the terms of this Agreement as if still in full force and effect.

b) Either Party may terminate this Agreement on thirty (30) days’ prior written notice to the other Party if there are no ongoing Order Forms or SOWs then currently in place.

c) Customer may terminate this Agreement on written notice to Atheer if Customer does not agree to changes made by Atheer to this Agreement as first set forth in this Agreement above by delivering to Atheer written notice of such termination within thirty (30) days of the date Customer first receives notice from Atheer of such change made to this Agreement.

9.3. Effect of Termination. Upon expiration or early termination of this Agreement (i) any then-current Order Forms or SOWs shall continue per their respective terms subject to the terms of this Agreement as if still in full force and effect, (ii) Customer’s access to, and use of, the Service except under any continuing Order Form or SOW will immediately cease, including without limitation the Software, (iii) Customer will destroy all Software or, if requested by Atheer, Customer will return the Software to Atheer, and (iv) upon Disclosing Party’s request, Recipient will destroy or return all Confidential Information in its possession (except with respect to any Customer Data as set forth below). Upon request by Customer, Atheer will make available to Customer, for a period not exceeding thirty (30) days after the expiration or termination of this Agreement, access to the Service for the sole purpose of permitting Customer to download Customer Data. After such thirty (30) day period, Atheer will have no obligation to maintain or provide the Customer Data to Customer. The following Sections will survive any expiration of termination of this Agreement for any reason: Sections 1.8 (Usage Restrictions), Section 2 (Proprietary Rights), Section 3 (Customer Data), Section 4 (Fees and Payment), Section 5 (Confidentiality), Section 6.3 (Disclaimers of Warranty), Section 7 (Limitation of Liability), Section 8 (Indemnification), Section 9.3 (Effect of Termination), Section 15 (Miscellaneous).

10. PUBLICITY.

Atheer may use and display Customer’s name, logo, trademarks, and service marks in connection with identifying Customer as a customer of Atheer (including on Atheer’s website, social media, and  marketing and promotional materials). Atheer agrees that any such use will be subject to Atheer’s compliance with any written guidelines that Customer may deliver to Atheer regarding the use of Customer’s name.

11. INSURANCE.

During the term of this Agreement, Atheer will maintain the following insurance policies and minimum limits:

a) Personnel: Worker’s Compensation Insurance as required by the applicable law and US$ 2,000,000 Employer’s liability coverage;

b) Commercial General Liability Insurance: US$2,000,000 per occurrence and US$4,000,000 in the aggregate;

c) Umbrella Liability Insurance: US$2,000,000 per occurrence in excess of the limits stated above; and

d) Automobile Liability Insurance: US$2,000,000 per occurrence (on all hired and non-owned automobiles).

The insurance coverages described in this Section may be obtained through any combination of primary and excess or umbrella liability insurance.

12. ASSIGNMENT.

Neither Party may assign this Agreement or any of its rights hereunder without the other Party’s prior written consent; provided, however, either Party may assign this Agreement without the consent of the other Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of the previous sentence will be void and of no effect. This Agreement will inure to the benefit of and be binding upon the Parties and their successors and permitted assigns. There are no third party beneficiaries to this Agreement.

13. EXPORT.

Customer will, and will cause its representatives to, comply with all applicable export control laws and regulations, including but not limited to the U.S. Export Administration Regulations (collectively, “Export Controls”), including not exporting, directly or indirectly, re-exporting, diverting, or transferring any Service, Documentation, Atheer Confidential Information, or Software to any destination, company, or person restricted or prohibited by Export Controls.

14. GOVERNMENT USERS.

If Customer or any Authorized User is a branch or agency of the United States Government, Customer acknowledges that the Service, Documentation and any other services provided by Atheer hereunder, are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 49 C.F.R. 12.212, and are provided either (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R.  12.212 or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3.

15. MISCELLANEOUS.

15.1. Trial Usage. If Atheer permits Customer to access and use the Service for evaluation purposes for no fees or charges (“Free Trial”), Customer may be presented with additional terms and conditions prior to such use, and such additional terms and conditions are hereby incorporated into this Agreement by reference and are legally binding upon the Parties. ADDITIONALLY, NOTWITHSTANDING ANY CONTRARY PROVISION IN THIS AGREEMENT, ANY FREE TRIAL WILL BE MADE AVAILABLE BY ATHEER TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, (I) WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY (TO THE FULLEST EXTENT PERMITTED BY LAW) AND (II) WITHOUT ANY OBLIGATION OF ATHEER TO PROVIDE OR OFFER MAINTENANCE OR SUPPORT, ANY SERVICE LEVEL COMMITMENT, OR ANY INDEMNITY IN CONNECTION WITH CUSTOMER’S ACCESS TO, AND USE OF, ATHEER SERVICES DURING THE FREE TRIAL PERIOD.

15.2. Usage Assessment. Atheer will have the ongoing right to monitor, assess and evaluate Customer and its Authorized Users’ usage of the Service, as necessary to verify Customer’s compliance with this Agreement, including but not limited to, the accuracy of the fees paid pursuant to this Agreement. Customer will promptly pay the difference (plus interest) if such evaluation reveals an underpayment.

15.3. Independent Contractors. The parties to this Agreement are independent contractors.  There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties.  Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.

15.4. Non-Solicitation. During the term of this Agreement and for a period of twelve (12) months following the effective date of termination hereof for any reason, to the fullest extent permitted under applicable law, Customer will not, without Atheer’s prior written consent, directly or indirectly, solicit or attempt to solicit any of Atheer’s employees or contractors to leave their employment or relationship with Atheer, whether on Customer’s behalf or on behalf of any other person or entity.

15.5. Force Majeure. Neither Party will be liable for delayed, inadequate, or failed performance of its obligations hereunder (other than for non-payment) if such delay or failure arises from any cause or condition beyond the reasonable control of the affected Party, including natural disasters, fire, flood, epidemic, pandemic, act of God, civil disturbance, act of a public enemy or terrorist, act of any military, civil, regulatory, or governmental authority, change in law or regulation, labor conditions, interruption or failure of the Internet or any utility service, denial of service or ransomware attacks, unavailability of supplies, or  any other cause, whether similar or dissimilar to any of the foregoing that could not have been prevented by such Party with reasonable care (each a “Force Majeure Event”). The Party affected will be relieved from its obligations hereunder (or applicable part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations.

15.6. Severability. If any provision of this Agreement will be adjudged by an any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.

15.7. Governing Law; Jurisdiction and Venue. This Agreement will be governed by the applicable laws of the United States and the State of California, excluding its conflict of laws rules. The United Nations Convention on the International Sale of Goods and the Uniform Computer Transactions Act are specifically excluded from application to this Agreement. Subject to Section 15.8 (Informal Dispute Resolution and Arbitration), the parties hereby submit to the exclusive jurisdiction of, and waive any venue jurisdiction or venue objections against, the state and Federal courts located in Santa Clara, California.

15.8. Informal Dispute Resolution and Arbitration. The Parties agree that most disputes can be resolved without resort to litigation. The Parties agree to use all reasonable efforts to settle any dispute directly through consultation with each other before initiating a lawsuit or arbitration. If, after good faith negotiations the Parties are unable to resolve the dispute, the Parties agree that, except as expressly stated herein, any and all disputes arising out of or in any way relating to this Agreement, including its existence, validity or termination, will be resolved according to California law and exclusively by binding arbitration before a single arbitrator with the Judicial Arbitration and Mediation Service (JAMS) and pursuant to the then existing arbitration rules at JAMS. If the Parties cannot agree upon selection of an arbitrator, then JAMS will appoint an arbitrator experienced in the enterprise software industry. The place of the arbitration will be Santa Clara, California. The arbitration will be conducted in English. The arbitrator will provide detailed written findings of fact and conclusions of law in support of any award. Judgment upon any such award may be enforced in any court of competent jurisdiction. Notwithstanding the foregoing, the Parties agree that damages may be an inadequate remedy in the case of any actual or threatened breach of certain terms of this Agreement (including unauthorized disclosure of Confidential Information, infringement of a Party’s Intellectual Property Rights, and enforcement of an arbitration award hereunder), and that either Party will be entitled to seek equitable relief (without the requirement of posting a bond or other security) in any court of competent jurisdiction in addition to any other remedies such Party may have under this Agreement.

15.9. Notice. Atheer may give general notices related to the Service that are applicable to all customers by email, text, in-app notifications, or by posting them on the customer portal or otherwise through the Service, and such electronic notices will be deemed to satisfy any legal requirement that such notices be made in writing. Any other notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the first page of this Agreement or at such other address as may be given in writing by either Party to the other and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the second business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the fifth business day after such notice is deposited in the mail. All notices to Atheer will also be sent via email to legal@atheerair.com.

15.10. Entire Agreement; Modifications; Order of Precedence; Interpretation. This Agreement (including all Exhibits attached hereto and all Order Forms and SOWs entered into hereunder by the Parties) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and replaces all previous written and oral agreements and communications relating to the subject matter of this Agreement. No modification, or amendment of this Agreement will be effective and binding, unless in writing signed by the duly authorized representatives of both parties. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative of the Party claimed to have waived. Purchase orders (and similar documents) issued by Customer are for administrative purposes only (e.g. setting forth products and services ordered and associated fees), and any new, additional or different terms or conditions contained in any such order will not apply (even if the order is accepted, or performed on by Atheer). In the event of a conflict between any Exhibit, Order Form, or SOW and this Agreement, the Exhibit, Order Form, or SOW (as applicable) will control and (ii) in the event of a conflict between any Exhibit, Order Form, or SOW, the Order Form will control.  As used in the Agreement, (a) “include” and “including” mean “including, without limitation,” and (b) “will” and “must” are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable. Headings used in this Agreement are for convenience only and are not intended as, nor will they be used as, an aid to interpretation

‍