1. Definitions.

All capitalized terms within these Service Terms and Conditions shall be defined solely by the definitions herein or as defined in Exhibit A to these Service Terms and Conditions.

2. Software Products and Services.

2.1 Provision of Services. LocatorX will use commercially reasonable efforts to: (a) make the Services available to Client and its Authorized Users during the Term in accordance with the terms of these Terms and Conditions, the End User Agreement, and any Statement of Work (SOW) or Sales Order (SO) executed under this Agreement; and (b) provide standard support for the SaaS Service to Client at no additional charge consistent with the terms of the LocatorX published service level standards then currently in effect, subject to downtime for scheduled maintenance, emergency maintenance, and any outages caused by circumstances outside the reasonable control of LocatorX. Client acknowledges that provision of the Services and certain obligations of LocatorX hereunder may be dependent upon Client providing access to certain data, information or assistance to LocatorX from time to time, and that the same may be essential to the performance of the Services. Client agrees to provide such data, information or assistance to LocatorX upon LocatorX’s request.

2.2 Label and/or Chip Ownership; License; Restrictions.  Subject to Client’s payment of all Fees and compliance with the terms of this Section 2.2, Client will own the Labels and/or Chips purchased from LocatorX as set forth in the applicable SOW or SO. Subject to the terms and conditions of the Agreement, and to each Authorized User’s compliance with the End User Agreement, LocatorX grants to Client a limited, revocable, non-exclusive license to access and use the Software Products and the SaaS Service during the Term, pursuant to the Terms of the End User Agreement and solely for Client’s internal use. The Labels, Software Products, and SaaS Service are proprietary to LocatorX, subject to LocatorX’s suppliers’ and licensors’ rights to Third-Party products, and LocatorX reserves all right, title and interest in and to the Products, Labels, Software Products, and SaaS Service, including all related software and intellectual property rights. No rights are granted to Client hereunder other than the limited license and access rights and Client’s ownership of the Labels expressly set forth herein. As between Client and LocatorX, Client is solely responsible for (a) its Authorized Users and for all activities that occur under its and their accounts; (b) the accuracy and quality of Client Data; and (c) complying with all applicable federal, state and local laws, rules and regulations in using the Services. Client shall prevent unauthorized access to, or use of, the Services, and notify LocatorX immediately of any such unauthorized access or use. Client shall not, and shall not permit any Authorized User or Third-Party to: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise exploit or make the Services or Labels available to any Third-Party; (ii) translate, adapt, modify, copy, update, revise, enhance, or otherwise alter or create derivative works of the Services or Labels; (iii) reverse engineer, disassemble or decompile (or attempt to reverse engineer, disassemble or decompile) the Services or Labels; (iv) access the Services or purchase the Labels in order to (1) build a competitive product or service, or (2) copy any ideas, features, functions or graphics thereof; (v) send or store viruses, worms, time bombs, Trojan Horses and other harmful or malicious code, files, scripts, agents or programs; (vi) interfere with or disrupt the integrity or performance of the Services; (vii) attempt to gain unauthorized access to the Services or its related systems or networks; (viii) use the Services or Labels for unlawful purposes or for any purpose not expressly permitted by the Agreement; or (ix) make the Services, Labels, or Software Products available to any Third-Party other than Authorized Users. If LocatorX has reasonable grounds to believe that Client is in violation of this Section 2.2, LocatorX may suspend or terminate Client’s and/or its Authorized Users’ access to the Services immediately.

2.3 Usage Limits.  Services are subject to usage limits, including, for example, the quantities specified in the applicable SOW or SO. Unless otherwise specified: (a) a quantity in an SOW or SO refers to the number of Authorized Users permitted access to the SaaS Services and Content; (b) an Authorized User’s password may not be shared with any other individual; and (c) an Authorized User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the SaaS Services or Content. If Client exceeds a contractual usage limit, LocatorX will invoice Client for any excess usage and Client will pay such invoices.

2.4 Professional Services.  From time to time, LocatorX may provide Client with Professional Services in accordance with the terms herein and as set forth in an SOW or SO. Client will provide any and all necessary information and assistance to LocatorX, including without limitation access to Client’s facilities, hardware and equipment, as reasonably requested by LocatorX in order to facilitate the performance of the Professional Services. If Professional Services for the implementation of any Software Products are purchased by Client, no later than thirty (30) days after the applicable SOW or SO takes effect, Client shall have performed and completed all pre-implementation Client obligations specified by LocatorX. Client acknowledges and agrees that LocatorX shall not be liable for and Client shall be responsible for any liability incurred as a result of any delay or failure by Client in providing and/or completing any such pre- implementation items. If purchased by Client, Professional Services for training will take place at Client’s facility(ies) at mutually agreeable times. Client acknowledges that LocatorX’s ability to deliver the Professional Services is dependent upon Client’s full and timely cooperation with LocatorX, as well as the accuracy and completeness of any information and data Client provides to LocatorX. LocatorX may adjust the delivery and performance schedule set forth in the SOW or SO, if any, due to any act, omission or failure by Client to provide such information and/or assistance. LocatorX shall not be liable for any costs, expenses or liabilities resulting from the acts or omissions in Client-provided information or delays to the delivery schedule caused by Client or resulting from Client’s failure to fulfill any of its obligations under these Terms and Conditions or any SOW or SO. Nothing herein shall restrict or prohibit LocatorX from performing the same or similar services for other Clients. Client acknowledges and agrees that the Deliverables are not “works made for hire” and to the extent Client acquires or possesses any right, title or interest in or to any Deliverable, Client hereby irrevocably and unconditionally assigns all such right, title and interest (including without limitation all intellectual property and proprietary rights) to the Deliverables, excluding any Client Data contained or incorporated therein, to LocatorX without further consideration. Client agrees to execute all documents and/or perform any further acts reasonably requested by LocatorX in order for LocatorX to enforce, evidence, protect and secure its rights to the Deliverables.

2.5 Acceptance.  Each SOW or SO shall set forth the acceptance criteria for the Services and any Deliverables to be provided thereunder. Absent such criteria, Services and Deliverables shall be deemed accepted upon delivery If any Services or Deliverables are subject to acceptance, Client must provide a written notice of non-acceptance to the LocatorX’s Project Coordinator within ten (10) business days of delivery thereof or the Services or Deliverables shall be deemed to be accepted. Each notice of non- acceptance shall specify in detail the reasons for non- acceptance. LocatorX will be provided a reasonable amount of time to correct the Services or Deliverables. Client Project Coordinator and any other individual specifically identified as an authorized representative in the applicable SOW or SO shall be deemed to be authorized representatives of Client for purposes of accepting Services and Deliverables.

2.6 Client Data.  LocatorX recognizes and agrees that, except as specified in Section 10.1, it has no claim of ownership to Client Data, and that title and all ownership rights in and to such Client Data shall at all times remain with Client.

2.7 Apps.  In the event that Client or its Authorized Users uses any Apps, Client and its Authorized Users will only use the Apps as permitted by the App’s applicable terms of service. Client acknowledges and agrees that the availability of the Apps are dependent on the Third-Party from whom Client received the App license, e.g., the Apple App Store or Google Play (collectively, the “App Store”). Client acknowledges that these Terms and Conditions are between Client and LocatorX and not with the any App Store. Client also acknowledges that the terms of service applicable to any Third-Party App are between Client and the applicable App Store and/or owner of the Third-Party App. LocatorX is not responsible for any Third-Party App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use any App, Client must have access to a wireless network, and Client agrees to pay all fees associated with such access. Client also agrees to pay all fees (if any) charged by the App Store in connection with any App. Client agrees to comply with, and Client’s license to use an App is conditioned upon Client’s compliance with, all applicable terms of service (e.g., the App Store’s terms of service and any applicable terms of use for the particular App) when using the App. Client acknowledges that each App Store (and its subsidiaries) are Third-Party beneficiaries of these Terms and Conditions and will have the right to enforce them. Finally, Client represents and warrants that (i) it and each of its Authorized Users is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) it and each of its Authorized Users is not listed on any U.S. Government list of prohibited or restricted parties.

2.8 Changes.  LocatorX reserves the right, in its sole discretion, to make any changes to the Services, including the Software Products and Labels, that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of LocatorX’s Software Products, Labels, or Services to its other Clients, the competitive strength of or market for LocatorX’s Software Products, Labels, or Services or (iii) the Software Products’, Labels’, or Services’ cost efficiency or performance; or (b) comply with applicable law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and, if agreed, implement all such requested changes in accordance with the terms of a SOW or SO. No requested changes will be effective unless and until memorialized in a written SOW or SO signed by both parties.

2.9 Subcontractors.  LocatorX may from time to time in its sole and absolute discretion engage third parties to perform all or a portion of the Service.

2.10 Suspension or Termination of Services.  LocatorX may, directly or indirectly, and by use of a Disabling Device or any other lawful means, suspend, terminate or otherwise deny Client, any Authorized User’s or any other person’s access to or use of all or any part of the Solution, without incurring any resulting obligation or liability, if: (a) LocatorX receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires LocatorX to do so; or (b) LocatorX believes, in its sole discretion, that (i) Client or any Authorized User has failed to comply with, any material term of this Agreement or an applicable SOW or SO, or accessed or used the Solution beyond the scope of the rights granted or for a purpose not authorized under this Agreement, (ii) Client or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services, or (iii) this Agreement expires or is terminated. This Section 2.10 does not limit any of LocatorX’s other rights or remedies, whether at law, in equity or otherwise available under this Agreement.

3. Client Responsibilities.

Client will ensure that each Authorized User enters into an End User Agreement. Client is responsible for obtaining all authorizations, consents, releases, and permissions necessary or desirable to enter Client Data into the SaaS Service, to use the SaaS Service to process and store Client Data and to receive the Services and Output. Client and its Authorized Users will not submit any Client Data or use the Software Products, Labels, or SaaS Service in any way that infringes, misappropriates, or violates any trademark, copyright, patent, trade secret, publicity, privacy or other right of any Third-Party or violates any applicable local, state or federal laws, statutes, ordinances, rules or regulations or any judicial or administrative orders. Client hereby represents and warrants that Client possesses all necessary rights in and to Client Data, including without limitation all rights and consents to upload and submit Client Data through the Services. Neither Client Data nor Client’s use of the Software Products, Labels, or SaaS Service shall (i) be defamatory, harmful to minors, obscene, indecent, pornographic, libelous, threatening, or harassing; (ii) contain or cause to be placed any worms, viruses or programming routines intended to interfere, damage, corrupt, surreptitiously intercept or expropriate any system, data or personal information; (iii) be materially false, misleading or inaccurate; or (iv) violate any Federal, state or local laws or regulations. LocatorX may take action should Client or any of its Authorized Users violate this Section, including but not limited to immediate suspension of access to the Services and/or termination of the Agreement.

4. User IDs.

Each Authorized User will have a unique User ID for his or her access to the SaaS Service. Client will ensure that its Authorized Users will use only their respective assigned User IDs and will never use another’s User ID. Client will adopt and maintain such security precautions for User IDs to prevent their disclosure to and use by unauthorized persons and will promptly notify LocatorX if the security or integrity of a User ID or password has been compromised. Client will promptly delete or deactivate any Authorized User’s account when that user is no longer an Authorized User.

5. Responsibility for Users.

Client will (a) remain responsible for all obligations under this Agreement arising in connection with any use of the SaaS Service by any other person or entity authorized by, through or as a result of an act or omission of Client (“Other User”), including without limitation any Authorized User; (b) be liable for any act or omission by any Other User, which, if performed or omitted by Client, would be a breach of this Agreement; and (c) any such act or omission of any Other User will be deemed to be a breach of this Agreement by Client.

6. Client Review and Responsibility.

Client will be solely responsible for any services that it provides to others or decisions it makes involving the use of the SaaS Service, Client Data, Output or the Services. LocatorX makes no representations concerning the completeness, accuracy, or utility of any Client Data in the SaaS Service or any Output or concerning the qualifications or competence of any Authorized User that may place Client Data in the SaaS Service. Client shall be solely responsible for ensuring accuracy, completeness and compliance of any Output provided to any Third-Party, and all liabilities and responsibilities in connection with such Output, and LocatorX shall not be responsible for the accuracy, completeness, or compliance thereof. LocatorX shall not be liable for the accuracy, completeness or authenticity of Client Data furnished by Client or any other Third-Party, and shall have no obligation or responsibility to audit, check or verify the Client Data. Neither Client nor any other person will have any claim or cause of action against LocatorX as a result of any professional or other services rendered or withheld in connection with the use of the SaaS Service, Client Data, Output or the Services.

7. Removal of Content.

If LocatorX is required by a licensor to remove Content, or receives information that Content provided to Client may violate applicable law or Third-Party rights, LocatorX may so notify Client and in such event, Client will promptly remove such Content from Client systems.

8. Suggestions and Feedback.

In consideration of access to the Services, Client hereby irrevocably and exclusively assigns, conveys, transfers and sets over absolutely to LocatorX, all rights, title and interests in and to (whether or not now existing) in and to all ideas, suggestions, enhancements, recommendations or other feedback (collectively, “Feedback”) provided by Client and/or its Authorized Users, including without limitation any and all intellectual and proprietary rights therein. Without limiting the foregoing, LocatorX shall have all rights to use, reproduce, modify, edit, adapt, publish, sell, translate, create derivative works from, distribute, transmit, display, perform, and license and/or sell Feedback, contribute or otherwise provide to or through the Services (in whole or part) and/or incorporate such Feedback, in whole or in part, in other works in any form, media or technology now known or later developed for any purpose without compensation to Client or any Third-Party.

9. Client Equipment, Hardware, and Software Requirements.

Client will cooperate and consult with LocatorX in the set-up and activation of the SaaS Service for Client. Client agrees that it shall provide and maintain, at its sole cost and expense, all hardware, software, Internet access and other materials necessary to permit Client’s and its Authorized Users’ access to and use of the Services

10. Confidentiality.

10.1 General Obligations. The parties acknowledge and agree that they may receive or be exposed to Confidential Information of the other party during the Term. Without limiting anything herein, the parties acknowledge and agree that the Services are Confidential Information of LocatorX and Client Data are Confidential Information of Client. Each party acknowledges that the Confidential Information of the other is confidential and proprietary and agrees not to disclose such Confidential Information to anyone other than employees of the receiving party who have a need to know such information and are bound by confidentiality obligations at least as restrictive as those contained herein. In addition, the receiving party agrees that it will not, without the prior written consent of the disclosing party, use the Confidential Information for any purpose other than to fulfill its obligations under the Agreement. Each party shall protect the Confidential Information of the other at least to the same extent it protects its own similar information, but in no event using less than reasonable care. The parties’ obligations of confidentiality shall not apply to information which: (i) is obtained from a Third-Party that did not make a disclosure in violation of a nondisclosure obligation; (ii) is in or enters the public domain not as a result of action by the receiving party; (iii) is independently developed by the receiving party without use of or access to the disclosing party's Confidential Information; (iv) was in the receiving party’s lawful possession prior to the disclosure by the disclosing party without nondisclosure obligations; or (v) is required to be disclosed by law or court order; provided, however, that in the event of any such required disclosure, the receiving party shall provide the disclosing party with prompt written notice thereof and shall cooperate with the disclosing party in any attempt to quash, limit or otherwise prevent or limit disclosure. For avoidance of doubt, LocatorX shall have the right to use Client Data provided in connection with the Agreement as necessary to provide the Services and as otherwise permitted by these Terms and Conditions and shall exclusively own all insights or new data created or derived by LocatorX therefrom.

10.2 Injunctive Relief.  Notwithstanding anything to the contrary herein, if the receiving party breaches or threatens to breach this Section 10.2, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts without the requirement of posting of bond.

10.3 Use of Client Name.  Client agrees that LocatorX may display Client’s name and logo on its website or marketing materials as a LocatorX Client, provided LocatorX complies with Client’s trademark usage guidelines and further provided that no Confidential Information is disclosed. Client further agrees that LocatorX may develop and, with Client’s prior written approval, publish testimonials and other materials that incorporate Client name, logo and description of Client’s use of LocatorX products and services in the marketing of LocatorX, its products and services.

11. Indemnification.

11.1 Client. Client shall defend, indemnify and hold LocatorX and its Affiliates, and their officers, employees and representatives, harmless from and against any and all awards, liabilities, losses, damages, costs and expenses (including reasonable attorneys' fees) incurred in connection with allegations, claims, demands, suits or proceedings made or brought against LocatorX arising out of or related to (i) Client's use of the Services and/or Labels in a manner inconsistent with the Agreement, and/or (ii) the gross negligence or willful misconduct of Client or its Authorized Users.

11.2 LocatorX.  LocatorX shall hold Client harmless from and against any claim, action, suit or proceeding brought by a Third-Party against Client alleging that the use of the Software Products, SaaS Service, Labels, or any Deliverable by Client as contemplated hereunder infringes a U.S. patent issued as of the Effective Date, registered copyright, registered trademark, or trade secret rights of a Third- Party (each, an “Infringement Claim”). LocatorX shall pay any damages awarded to a Third-Party in any final judgment entered by a court of competent jurisdiction with respect to any such Infringement Claim or agreed to by LocatorX in any settlements arising out of such Infringement Claim; provided, that (a) Client promptly gives written notice of the Infringement Claim to LocatorX; (b) Client gives LocatorX sole control of the defense and settlement of the Infringement Claim (provided that LocatorX shall not settle any Infringement Claim without Client’s consent unless it unconditionally releases Client of all liability); (c) Client provides to LocatorX, at LocatorX’s cost, all reasonable assistance; and (d) the alleged infringement does not arise as a result of: (i) the combination, operation, or use of the Software Products, Labels, SaaS Service, or Deliverables with Third-Party software, services or other products or materials not furnished by LocatorX; (ii) the modification by Client or any Third-Party of the Software Products, Labels, SaaS Service, or Deliverables; (iii) Client’s improper or misuse of the Software Products, SaaS Service, Labels, or Deliverables (including without limitation, in violation of applicable laws, rules or regulations or this Agreement); (iv) LocatorX’s compliance with Client’s instructions; (v) LocatorX’s use of trademarks, Client Data or other materials supplied by Client, (vi) any breach or alleged breach by Client of this Agreement, (vi) the conduct of any business in connection with use of the Services; or (vii) any Content owned by a Third-Party and provided by LocatorX through the SaaS Service. THIS SECTION STATES CLIENT’S SOLE REMEDY AND LOCATORX’S SOLE LIABILITY WITH RESPECT TO CLAIMS RELATED TO INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.

12. Warranties; Disclaimer.

12.1 Representations and Warranties.  Each Party represents and warrants to the other that: (a) it is duly organized and in good standing under the laws of its state of incorporation or organization and is duly qualified to do business in the applicable jurisdiction in which it conducts its business; (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

12.2 Additional LocatorX Warranties.  LocatorX further represents and warrants; (a) that it will use commercially reasonable measures, including scanning with industry standard antivirus software and updated definition files, to ensure that the SaaS Services, Software Products, Deliverables, and Content will not, to LocatorX's knowledge, introduce Malicious Code into Client systems; (b) the Deliverables, at the time of delivery, will conform to the applicable documentation and to the requirements of the applicable Statement of Work. For any breach of an above warranty, Client acknowledges and affirms that its exclusive remedies are those described in Section 13.1 hereof. To receive any warranty remedies, Client must report any deficiencies to LocatorX within ninety (90) days from the date of delivery of the applicable Deliverable.

12.3 Internet Delays.  The SaaS Services may be subject to limitations, delays, unavailability and other problems inherent in the use of the internet, mobile applications, electronic communications, mobile devices and telecommunications infrastructure. LocatorX is not responsible for any such limitations, delays, unavailability, or other problems or any damage resulting therefrom.

12.4 Disclaimer.  EXCEPT FOR THE EXPRESS WARRANTIES OF THIS SECTION 12, THE SOLUTION AND ALL OTHER MATERIALS AND INFORMATION PROVIDED BY LOCATORX OR ANY OF ITS LICENSORS OR SUPPLIERS ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS,” AND LOCATORX AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, COMPLETENESS OR THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NEITHER LOCATORX NOR ANY OF ITS LICENSORS OR SUPPLIERS WARRANTS THAT THE PROVISION OR OPERATION OF THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE. USE OF INFORMATION PROVIDED THROUGH THE SOLUTION IS SOLELY AT CLIENT’S OWN RISK. IN NO EVENT SHALL LOCATORX BE LIABLE TO CLIENT OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY CLIENT, ANY AUTHORIZED USER, OR ANY THIRD-PARTY ACCESSING THE SOLUTION BY OR THROUGH CLIENT IN RELIANCE ON ANY INFORMATION ACCESSED BY OR THROUGH THE SOLUTION. 

The parties acknowledge and agree that no prior or contemporaneous representations, inducements, promises or agreements, oral or otherwise, between the parties will be of any force or effect. Each party represents and warrants that, in entering into and performing its obligations under the Agreement, it has not, does not and will not rely on any promise, inducement, or representation allegedly made by or on behalf of the other party with respect to the subject matter hereof, nor on any course of dealing or custom and usage in the trade, except as such promise, inducement, or representation is expressly set forth herein. Client agrees that its use of the Software Products, SaaS Service, Deliverables, User Materials, Output and any additional software or services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written comments made by LocatorX with respect to functionality or features.

13. Limitations on Liability.

13.1 Limitation of Remedies.  Client’s primary remedy, and LocatorX’s sole obligation, with respect to any defect, deficiency or failure in the Deliverables, Labels, Services or LocatorX’s performance under this Agreement shall be for LocatorX to correct such defect, deficiency or failure by properly performing the Services promptly following receipt of notice of such defect, deficiency or failure. If LocatorX is unable to correct the deficiency, the parties will work together in good faith to determine an equitable portion of the fees paid to LocatorX, to be refunded to Client, for the deficient portion of the Deliverables, Labels, Services, or Software Products. Subject to Section 11.2, the remedies provided in this Section 13.1 shall be Client’s sole and exclusive remedies and LocatorX’s sole obligation with respect to any defect, deficiency, or failure in the Deliverables, Labels, Services, Software Products, or LocatorX’s performance of this Agreement.

13.2 Waiver of Consequential Damages; Maximum Liability.  IN NO EVENT SHALL LOCATORX OR ANY OF ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO CLIENT OR ANY THIRD-PARTY FOR ANY LOST PROFITS, LOSS OF DATA, OR BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL OR SPECIAL DAMAGES OR LOST PROFITS HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY. IN NO EVENT SHALL LOCATORX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY CLAIM AND/OR SERIES OF CLAIMS, WHETHER RELATED OR UNRELATED, UNDER THE LICENSE AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY CLIENT TO LOCATORX DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM (OR TO THE FIRST CLAIM IN A SERIES OF CLAIMS).

14. Auditing Rights and Required Records.

LocatorX shall have the right at all times to review and audit the number of Authorized Users for any Service and to bill Client at its then-current rates for any Authorized Users in excess of that number of properly paid Authorized Users under all SOW or SO’s, including without limitation any Authorized Users accessing the Services under a part-time subscription who are exceeding the part-time subscription limits.

15. United States Government End-Users.

LocatorX provides the Solution, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Solution include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data — Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with LocatorX to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

16. Force Majeure.

LocatorX shall be excused from performance of its obligations under the Agreement if such a failure to perform results from compliance with any act of God, fire, strike, embargo, terrorist attack, war, insurrection or riot, computer, telecommunications, service provider or hosting facility failures or delays involving hardware, software or power systems not within LocatorX’s possession or reasonable control, denial of service attacks, incompatibility of Client’s equipment, hardware or software with the Services, acts or omissions of vendors or suppliers, transportation and telecommunications difficulties, or other causes beyond the reasonable control of LocatorX. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.

17. Governing Law; Jurisdiction; Venue.

This Agreement is governed by the laws of the Florida, USA and controlling United States Federal Law without regard to any conflicts of law provisions. Any legal proceedings arising from or relating to this Agreement shall be brought exclusively in the federal or state courts located in Duval County, Florida and the parties hereby consent to the personal jurisdiction and venue of such courts.

18. Effect of Termination.

Upon expiration or termination of the Agreement, LocatorX shall immediately terminate Client’s and Authorized Users’ access to the Services, and Client and Authorized Users shall cease all access to the Services. In addition, each party shall return or destroy all Confidential Information of the other party. LocatorX has no obligation to retain any Client Data following termination and may delete or destroy the same. The following provisions shall survive any termination or expiration of the Agreement: Sections 1 and 2 of the Additional Terms and Conditions set forth on the SOW or SO (the “Additional Terms”) and Sections 1, 2.2, 3, 4, and 6-21 of these Terms and Conditions.

19. Non-Solicitation.

Client recognizes and fully acknowledges that LocatorX has significant investment in its personnel and Subcontractors and employees. As such, to the fullest extent permitted under applicable Law, during the Subscription Term and for a period of twelve (12) months thereafter, Client will not, without the prior express written consent of LocatorX in each instance, directly or indirectly, solicit for employment or encourage any employee or Subcontractor of LocatorX or its affiliates that Client became acquainted with during the Subscription Term to terminate employment with, or cease providing services to, LocatorX or its Affiliates. The foregoing shall not prohibit any offer of employment as a result of Client’s general solicitation of employment to the public.

20. Competitors.

Client shall not access the Solution if Client is a competitor of LocatorX, nor permit any Third-Party to access the Services if such Third-Party is, or becomes, a competitor of LocatorX, except with LocatorX’s prior written consent which may be withheld in LocatorX’s sole and absolute discretion. In addition, Client shall not access the Solution for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

21. Miscellaneous.

There are no other Third-Party beneficiaries under this Agreement. The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party agrees to comply with all U.S. laws, ordinances, orders, directions, rules, and regulations applicable to such party in connection with the Agreement. All notices under the Agreement shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; or (c) the second business day after sending by confirmed facsimile. Notices to each party shall be sent to the addresses set forth below in the SOW or SO. All parts of this Agreement apply to the maximum extent permitted by law. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement shall remain in effect. The invalidity of part of this Agreement will not affect the validity and enforceability of the remaining provisions. The section headings are for convenience and do not have any force or effect. Any failure of a party to exercise or enforce any of its rights under the Agreement will not act as a waiver of such rights. Client may not assign or transfer any of its rights hereunder without the prior written consent of LocatorX; provided, that Client may assign or transfer its rights under the Agreement in the event of a change of control, merger, sale of all or substantially all of its assets, reorganization, or operation of law without LocatorX’s prior written consent. These Terms and Conditions, together with the Additional Terms and any other addenda and SOW or SOs, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any conflict between the provisions of these Terms and Conditions and a SOW or SO, these Terms and Conditions shall control. No modification, amendment, or waiver of any provision of the Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The Agreement may be executed in counterparts, each of which is an original but all of which, together, shall constitute but one and the same instrument.

Exhibit A

Definitions

Affiliate” means any entity which directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity. “Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

Apps” means the LocatorX App and Third-Party Apps.

Authorized Users” means employees or individual subcontractors of Client, or distributors of Client who are authorized to access and use the Services and Software Products.

Chips” means proprietary chips with geolocation tracking and/or recording capabilities accessed through the SaaS Service that are purchased by Client through an SOW or SO. Labels may include LocatorX’s Certified Blue Label, Certified Global Resource, Certified Quick Response, and Certified DataMatrix.

Confidential Information” means information concerning the business of the other party and/or its Affiliates, whether or not reduced to writing, including, without limitation information pertaining to developments, techniques, data, know-how, methodology, formulations, benchmarks, research, processes, technology, designs, materials, ideas, plans, trade secrets, clients, proprietary information, accounting data, and other information relating to the business of the other party, including, without limitation, the terms of this Agreement.

Content” means the audio and visual information, documents, software, products, and services contained in or made available to the Authorized Users in the course of using the Services.

Client Data” means data, information and/or records collected, stored, submitted, or inputted by Client or an Authorized User into or otherwise processed or recorded through the Services.

Deliverable(s)” means materials, documentation, templates, reports, forms, configurations, methodologies, specifications, descriptions, designs, models, software and any other work product created, developed, implemented or conceived pursuant to the License Agreement, including any SOW or SO.

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

End User Agreement“ means LocatorX’s form of end user agreement (which may be in the form of an End User License Agreement, Terms of Service or Terms of Use agreement) for the Software Products and SaaS Services as it may exist from time to time, pursuant to which Client and its Authorized Users shall access and use the Software Products and/or SaaS Services. All End User Agreements shall be entered into directly between Licensor and the applicable Authorized User.

Labels” means proprietary labels with geolocation tracking and/or recording capabilities accessed through the SaaS Service that are purchased by Client through an SOW or SO. Labels may include LocatorX’s Certified Blue Label, Certified Global Resource, Certified Quick Response, and Certified DataMatrix.

LocatorX App” means LocatorX’s proprietary mobile application that can be used to access and use the SaaS Service.

Malicious Code” means code, files, scripts, agents or programs intended to do harm or to obtain information from a user or a user's computing device without his or her consent, including, for example, viruses, worms, time bombs, Trojan horses, malware or spyware.

Output” shall mean all documents, information, records and other output of the Services.

Professional Services” means any applicable implementation, training, and/or other services selected on the SOW or SO.

Project Coordinator” means an individual who will be the primary contact for the engagement described in a SOW or SO.

SaaS Service” means access and use of the Software Products and Content on a Software-as-a-Service basis (SaaS) via the Internet.

Services” means the SaaS Service, Support Services, Professional Services, LocatorX App, and other services provided by LocatorX as set forth in an SOW or SO.

Software Product(s)” means LocatorX’s software products identified on the SOW or SO.

SOW or SO” means a statement of work or sales order executed by both parties setting forth services and the parties’ respective responsibilities. Each SOW or SO shall reference the Effective Date of the Agreement and forms a part of the Agreement. No SOW shall be binding on LocatorX until accepted in writing by an authorized officer of LocatorX.

Solution” means the Services, Software Product(s), Labels, Chips, Deliverable(s), Output, and User Materials.

Support Services” means those support and maintenance services provided by LocatorX to Client under this Agreement in accordance with the Service Level Agreement referenced in Section 2.1.

Third-Party App(s)” means one or more Third-Party mobile applications downloaded and installed on individual devices of Client or an Authorized User to use in connection with the SaaS Service.

User ID” means a unique user identification assigned to an authorized individual Authorized User as set forth in Section 4.

User Materials” means any help files or written instruction manuals regarding the use of the Software Products and/or SaaS Service provided to Client by LocatorX.

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