MASTER SERVICES AGREEMENT

Last Updated: May 27, 2025

MASTER SERVICES AGREEMENT

Last Updated: May 27, 2025

This Master Service Agreement, any applicable Order Forms, and Exhibits hereto (collectively, the “Agreement”) is a legal agreement between you (“Client”) and ScaleIT USA Inc. (“Company” or “ScaleIT”) to purchase access to the Company Platforms (defined below), Equipment (defined in Exhibit 1), and/or  the related subscription services or other services that Company may provide to Client in an Order Form (defined below) (collectively, the “Services”). This Agreement governs the use of the Services Company provides to you. Capitalized terms used but not defined herein shall have the meanings ascribed to them in any applicable Order Form.

Order Form” means a separate ordering agreement (including but not limited to a statement of work, proposal, or change order), or page on the Site pursuant to which Client purchases Services.

Company Platforms” means collectively and individually, https://scaleitusa.com/ and any of their subdomains (collectively, the “Site”) and any websites, platforms, exchanges, successor platforms and exchanges, software, hardware, portals, applications, and Application Programming Interfaces (“API”s), programs, components, functions, screen designs, reporting data, and report formats owned or operated by Company and all updates, upgrades, and other derivative works, releases, fixes, patches, etc. related to the software that Company develops, deploys, or makes available to Client during the Term of this Agreement, as they may be modified, relocated and/or redirected from time to time, to receive, or review data and results of the Services.

BY ACCESSING OR USING THE SERVICES OR ENTERING INTO AN ORDER FORM HEREUNDER, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON CLIENT’S BEHALF, AND YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE TERMS AND CONDITIONS OF COMPANY’S PRIVACY POLICY. IF YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT OR ARE NOT AUTHORIZED TO ACCEPT THIS AGREEMENT ON CLIENT’S BEHALF, THEN YOU ARE NOT AUTHORIZED TO AND ARE PROHIBITED FROM ACCESSING THE SERVICES. THE SERVICES ARE OFFERED AND AVAILABLE TO USERS WHO ARE EIGHTEEN (18) YEARS OF AGE OR OLDER. BY USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY AND MEET ALL OF THE FOREGOING ELIGIBILITY REQUIREMENTS. IF YOU DO NOT MEET ALL OF THESE REQUIREMENTS, YOU MUST NOT ACCESS OR USE THE SERVICES.

In the event there is any conflict between the terms and conditions in this Master Service Agreement and the terms and conditions in any applicable Order Form, the terms of the Order Form shall prevail.  

The “Effective Date” of this Agreement is the date which is the earlier of (a) Client’s initial access to the Services through any online provisioning, registration, or order process, or (b) the effective date of the first Order Form. This Agreement governs Client’s initial purchase of Services on the Effective Date as well as any future purchases made by Client that reference this Agreement.

  1. SERVICES AND TERMS.
    1. Grant of Access. Subject to the terms and conditions of this Agreement, the Company grants to Client a limited, non-exclusive, revocable, non-transferable, and non-sublicensable right for Client’s authorized employees, agents, representatives, consultants, and contractors (“Authorized Users” or “User”) to access and use the Services described in an applicable Order Form during the Term of the Order Form for Client’s internal business purposes only in accordance with the Documentation (as defined below). The Services may allow Client to designate different types of Authorized Users, which may have different pricing, functionality, and use restrictions, as described on the Site, in the Documentation, or in the applicable Order Form. Each Authorized User must keep its login credentials confidential and not share them with anyone else. Client is responsible for its Authorized Users’ compliance with this Agreement and actions taken through their accounts. This Agreement does not permit access to the Services by persons who are not Authorized Users.
    1. Reservation of Rights. Access to the Services is provided on a limited term and Services basis. All rights not specifically granted to Client hereunder are reserved by Company. Nothing herein shall prevent the Company from promoting, providing, licensing, sub-licensing or subcontracting the Services or providing the Services to other parties. Client shall promptly notify Company of any determination, discovery, or notification that any person or entity is or may be misusing or infringing the Services, including without limitation if it becomes aware of any compromise of its Authorized Users’ login credentials.
    1. Professional Service Deliverables. All work product, customizations, improvements, and/or enhancements to the Services performed by Company for Client pursuant to this Agreement or as identified on any separate Order Form executed by the parties (collectively, “Professional Service Deliverables”), shall be owned exclusively by Company, unless otherwise provided in the corresponding Order Form. If, by operation of law or otherwise, any Professional Service Deliverables are not owned exclusively by Company immediately upon creation thereof, Client agrees to assign, and hereby irrevocably assigns, to the Company exclusive ownership of such Professional Service Deliverables and expressly disclaims any ownership rights thereto. Client will cooperate with the Company to confirm and/or execute such assignments and Company’s ownership of Professional Service Deliverables.
    1. Feedback. If Client provides the Company with feedback or suggestions regarding the Services (“Feedback”), Company may use Feedback without restriction or obligation. In addition, Client hereby irrevocably assigns ownership of any and all Feedback to Company and will cooperate with Company to confirm and/or execute such assignments and Company ownership of Feedback.
    1. Anonymized Data.  As between Client and Company, Company owns all rights, title, and interest in and to (i) information which does not relate to an identified or identifiable natural person , or personal information rendered anonymous in such a manner that the natural person is not or no longer is identifiable, or (iii) other anonymized or de-identified information relating to an entity, company, client, Clients, facilities, data or services, (“Anonymized Data”).  Accordingly, Company may, during the Term and thereafter, use, display, transmit, modify and prepare derivative works of Anonymized Data and derivative works thereof which are anonymized in any media for any lawful purpose, including maintaining and improving the Services.
    1. Third-Party Providers. Client’s use of any platform, add-on, service, code (including open source) or product not provided by Company that Client chooses to integrate or enable for use with the Services (“Third-Party Provider”) shall be subject to the terms and conditions of Client’s agreement with such third party, and Client is solely responsible for its compliance with such terms and conditions. Client acknowledges that Company does not control, is not responsible for, and will not be liable in any way for Client’s use of any Third-Party Provider or any damage or loss resulting from Client’s access to, use of, or interaction with, any Third-Party Providers. Client further acknowledges that any Client data loss, downtime or periodic unavailability of the Services due to Third-Party Providers’ system maintenance, upgrades, or any other reason is outside of Company’s control. The foregoing does not exclude or limit Client’s right to pursue any remedies directly against a Third-Party Provider.
    1. Documentation. Subject to the terms and conditions of this Agreement, Company grants to Client a limited, non-exclusive, non-transferable, revocable, and non-sublicensable right and license to use and make copies of the usage guidelines and standard technical documentation for the Services as may be provided or made available online or in writing by the Company (“Documentation”). Documentation is for Client’s internal use only, for archival purposes, and for training and education of Authorized Users, provided that all proprietary notices of the Company and its licensors, if any, are reproduced and retained. Company reserves the right to modify the Documentation in Company’s sole determination without prior notice to Client.
  2. PROHIBITIONS. Use of and access to the Services is permitted only by Client and its Authorized Users. Under no circumstances may Client or any Authorized User modify, decompile, reverse compile, disassemble, reverse engineer, decrypt, or otherwise seek to recreate the source code of the Services, modify or adapt the Services in any way, use the Services to create a derivative work, or grant any other person or entity the right or access to do so, without the Company’s advance written consent. Except as expressly authorized by this Agreement, and without limiting the foregoing, Client and Authorized Users  represent and warrant that they will not (a) modify, copy, duplicate, reproduce, unbundle, license, sublicense, sell, assign, transfer, display, distribute, lend, rent, lease, sublease, or make available the Services or any portion thereof to any third party; (b) provide, transmit, disclose, divulge, or make available to, or permit use of the Services by, any third party or entity or machine; (c) use the Services in a service bureau, out-sourcing or other arrangement to process or administer data on behalf of any third party; (d) publish, post, upload, or otherwise transmit any unlawful, false, offensive, defamatory, or infringing data or any data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that damage, detrimentally interfere with, surreptitiously intercept, or expropriate any systems, data, personal information, or property of another; (e) use or knowingly permit the use of any security testing tools in order to prove, scan, or attempt to penetrate or ascertain the security of Company or the Services without the prior written consent of Company; (f) attempt to gain any unauthorized access to the Services or Company Client data or attempt any unauthorized alteration or modification thereof; (g) use or launch, or knowingly permit the use or launch of, any automated system, including, without limitation, “robots,” “spiders,” or “offline readers,” that access the Services; or (h) use the Services or the information contained therein in violation of any applicable law or regulation.
  • SUSPENSION. Company  may, at its sole discretion, suspend Client’s and/or  Authorized Users’ use of the  Services (in whole or in part) if Company determines that (a) Client or Authorized Users breaches any terms of this Agreement including the AUP or applicable Order Form, (b) Client’s account is thirty (30) days or more overdue for payment after being notified, or (c) Client’s or Authorized Users’ use of the Services risks harm to other Clients of Company or the security, availability, or integrity of the Services.
  • CLIENT DATA.
  • Client Data. Use of the Services may involve the Company’s receipt, processing, and storage of data, information, or material input by Client, Authorized Users, and Client’s end user Clients who use the Services (“End Users”) (collectively, “Client Data”). Client affirms, represents, and warrants that Client owns or has the necessary licenses, rights, consents, and permissions to collect, use, and authorize Company to use all Client Data in the manner contemplated hereunder and to transfer to and process such Client Data. Client further represents and warrants that Company’s use of Client Data does and will not violate or infringe any applicable law, any third-party rights, or any terms or privacy policies that apply to the Client Data.
  • License to Client Data. Client hereby grants the Company the worldwide, non-exclusive, right to use, copy, store, transmit, display, modify and create derivative works of Client Data, as necessary to provide the Services under this Agreement.
  • Accuracy of Client Data. Client is solely responsible for the accuracy, content, currency, completeness, and delivery of the Client Data provided by Client, Authorized Users, and Client’s End Users.
  • Return of Client Data. Upon termination or expiration of this Agreement, or at Client’s request, Company shall provide access to all Client Data in a commonly used machine-readable format or such other format as agreed by Client and Company. Company shall provide access to the Client Data for no more than thirty (30) days after the termination or expiration of the Agreement. After this thirty (30) day period, Company may delete Client Data in accordance with its standard schedule and procedures.
  • PAYMENT.
    • Fees and Expenses. Client’s use of the Services is subject to prompt payment of all fees and other amounts, including without limitation, expenses (“Fees”) as described in each applicable Order Form. Company may adjust Fees at any time with thirty (30) days’ notice. Unless the Order Form provides otherwise, Company will send Client an invoice for all Fees owed on a monthly basis, and all Fees not subject to a good faith dispute are due within thirty (30) days of the invoice date. To the extent that Client disputes any invoice, Client must provide Company notice of such dispute in writing within ten (10) business days of the invoice date, or Client shall waive any claim with respect to such invoice. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by law, whichever is more. All Fees are nonrefundable and non-cancellable, except as expressly provided in this Agreement, and are exclusive of taxes­­. In the event of nonpayment or any shortfall in Fees paid, Client authorizes Company and its Affiliates (defined below) to increase fees, dues, assessments, and/or debit any of Client’s accounts with Company or Company’s Affiliates, including those accounts associated with a payment processing agreement between Client and Company or Company’s Affiliates. As used in this Section, “Affiliate” of a party means any corporation or other entity that such party directly or indirectly controls, is controlled by, or is under common control with. In this context, a party “controls” a corporation or other entity if it or any combination of it or any combination of it and/or its Affiliates owns more than fifty percent (50%) of the voting rights for (i) the board of directors, or (ii) other mechanism of control for such corporation or other entity.
  • Taxes. Client is responsible for any sales, use, Equipment and services taxes (GST), harmonized sales taxes (HST), value-added, withholding or similar taxes or levies that apply to any Order Form, whether domestic or foreign (“Taxes”), other than Company’s income tax. If Company is legally obligated to pay or collect Taxes for which Client is responsible under this Agreement, the appropriate amount will be computed based on Client’s  address listed in the Order Form, unless Client provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.  Fees listed on or invoiced pursuant to an Order Form are exclusive of Taxes.
  • CLIENT OBLIGATIONS.
    • Client Contact. Client will cooperate with Company in all matters relating to the Services and appoint a primary contact who will have the authority to act on behalf of Client for matters pertaining to this Agreement. Client will provide access to Client’s premises, or access to Client Data, reasonably needed for Company to perform the Services. If Client fails to do so, Company’s obligation to provide the Services will be excused until access is provided and the parties agree on an updated timeline.
  • Client Requirements. Client shall be responsible for providing and maintaining all necessary hardware, software, electrical and other physical requirements for Client’s use of the Services, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipment, programs and services required to access and use the Services.
  • Accessibility. As it relates to Client’s use of the Services, Client is solely responsible for compliance with all applicable accessibility laws, rules, and regulations, including, but not limited to, Title III of the Americans with Disabilities Act (“ADA”), and (if applicable) New York’s state and city level Human Rights Act and California’s Unruh Civil Rights Act.
  • Acceptable Use Policy. Client is solely responsible for the content of any postings, communications, data, or transmissions using the Services, or any other use of the Services by Client or by any person or entity Client permits to access the Services. To the extent the Services allows uploading or posting of content or data by Client or its users, Client will ensure that any content or data posted by or on behalf of Client or its end users is not inappropriate, illegal, obscene, threatening, libelous, discriminatory, hateful, or in violation of any third-party rights. If and to the extent the Services includes, integrates or links to any third party content, data or software, including without limitation any open source services (collectively, “Third Party Content”), Client acknowledges and agrees that (a) Company is not responsible for any Third Party Content and it is provided as is; and (b) any Third Party Content may be subject to additional terms and conditions (including applicable terms of use, privacy policies, end user license terms, etc., for which Client shall be responsible for agreeing to and complying with. Client represents and warrants that it will: (a) not use the Services in a manner that is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; (b) not violate or tamper with the security of any Company computer equipment or program. If Company has reasonable grounds to believe that Client is utilizing the Services for any illegal or disruptive purpose, Company may suspend the Services immediately with or without notice to Client. Company may terminate the Agreement for breach of this Agreement if Client fails to adhere to the foregoing acceptable use standards. Client shall defend, indemnify and hold harmless Company from and against all liabilities and costs (including reasonable attorneys’ fees) arising from any and all third-party claims based upon the content of any such communications.
  • Calls and Messaging. If the Services include email, calling, and/or text messaging features which enable Client to text third parties via the Services, Client is solely responsible for ensuring that the email, calling and/or text message feature(s) of the Services are utilized in a manner that complies with all applicable local, state, and federal laws, rules and regulations governing the sending of emails, calls, and/or text messages.  This includes, but is not limited to, compliance with applicable email and telemarketing laws such as the CAN-SPAM Act and Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, the EU ePrivacy Regulation, and comparable state laws. Client also represents and warrants that each third party to whom Client calls or texts has specifically granted Client permission to send such messaging; and that opt-out options are provided to such third parties pursuant to applicable law, rule, or regulation. Client is solely responsible for the content of any messaging by Client via the Services to third parties, and under no circumstances shall Company be identified by Client as the sender of such messaging. Client acknowledges it is responsible for obtaining any and all permissions required to use the Services’ calls, text messaging, or email features.
  • Payment Processing. Unless otherwise stated in an applicable Order Form, Client must be enrolled in and processing payments through Company’s integrated payments processing platform within sixty (60) days of the Effective Date of this Agreement. If Client does not process payments through Company’s integrated payment solution within the required timeframe, Company, in its sole discretion, may delay or remove access to the Services, restrict certain Services product features, increase Fees and/or charge a non-integrated payment processing fee unless Company determines that Client qualifies for a temporary or ongoing exemption (in whole or in part). Client acknowledges that Company may delay access or restrict access to certain product features or the Services altogether for non-compliance within the required timeframe.  Company reserves the right to apply non-integration payment processing fees in its sole discretion to Client and to apply, modify, increase, decrease the non-integration payment processing fee at any time.
  • SECURITY AND PRIVACY; DATA PROCESSING. Company shall use reasonable and appropriate administrative, physical, and technical security programs and procedures designed to protect and secure the Services and Client Data. Client agrees to use reasonable efforts to prevent unauthorized persons from having access to the Services or any equipment providing the Services. Company and Client agree to notify the other party promptly upon becoming aware of any unauthorized access or use of the Services or Client Data by any third party. Client Data may be stored and processed in the United States or any other country in which Company or its service providers maintain facilities. If you are located in the European Union or other regions with laws governing data collection and use that may differ from U.S. law, please note that we may transfer information, including personal information, to a country and jurisdiction that does not have the same data protection laws as your jurisdiction, and you consent to the transfer, use, and disclosure of Client Data to the U.S. or any other country in which Company, Company’s Affiliates, or its service providers maintain facilities
  • TERM AND TERMINATION.
  • Term. This Agreement starts on the Effective Date and continues until expiration or termination of all applicable Order Forms or until terminated as authorized in this Agreement, whichever occurs first (the “Term”).
  • Termination. Either party may terminate this Agreement (including all Order Forms) if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay Fees) within thirty (30) days after receipt of written notice of such breach by the other party, (b) ceases operation without a successor, or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within sixty (60) days.
  • Early Termination. If Client terminates the Agreement prior to the expiration of the applicable Order Form, or Company terminates for material breach, then Client shall forfeit all pre-paid amounts for Fees, and for those arrangements in which the Fees are not paid in advance, Client shall pay Company an amount equal to the monthly Fee multiplied by the number of months remaining in the Term.
  • Effect of Termination. Upon termination or expiration of this Agreement or Order Forms for any reason, Client’s access to the Services will cease, other than limited use of the Services to export Client Data. Client will immediately return any Documentation in its possession to Company. Upon termination or expiration of this Agreement, the Client will return or destroy all of Company’s Confidential Information within its possession, custody, or control and will certify such destruction to Company upon request. Client Data and other Confidential Information may be retained subject to the receiving party’s retention practices until such information is scheduled to be deleted in accordance with the receiving party’s policies and procedures but will remain subject to this Agreement’s confidentiality restrictions until deleted.
  • Survival. Any provision of this Agreement which contemplates performance or observance subsequent to its termination or expiration, either explicitly or by its nature, shall continue in full force and effect.
  • LIMITED WARRANTY AND DISCLAIMER.
  • Limited Warranty. Client and Company warrant that each party has the corporate power and authority to enter into and carry out the terms of the Agreement. Company further warrants to Client that: (a) the Services will perform materially as described in the Documentation; (b) Company will perform any Services in a professional and workmanlike manner; and (c) Company will use industry-standard measures designed to ensure that the Services (excluding Client Data) does not contain viruses, malware or similar harmful code.
  • Warranty Remedy. If Company breaches this Section and Client makes a reasonably detailed warranty claim within thirty (30) days of discovering the issue, then Company will use reasonable efforts to correct the non-conformity. If Company determines such remedy to be impracticable, either party may terminate the affected Order Form as it relates to the non-conforming Services. Company will then refund Client any pre-paid, unused amounts for Fees for the terminated portion of the Services. These procedures are Client’s exclusive remedy and Company’s entire liability for breach of this Section. These warranties do not apply to (i) issues caused by misuse or unauthorized modifications by Client or its authorized users, or (ii) issues in or caused by Third-Party Providers or other third-party systems.
  • Warranty Disclaimer. EXCEPT AS STATED AND EXPRESSLY PROVIDED IN THE WARRANTY SECTION ABOVE, THE SERVICES, THE DOCUMENTATION, AND ANY PROFESSIONAL SERVICES DELIVERABLES PROVIDED BY COMPANY UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, LEGAL, OR OTHERWISE, WITH RESPECT TO THE  SERVICES, THE DOCUMENTATION AND ANY PROFESSIONAL SERVICES DELIVERABLES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPLETENESS, ACCURACY, OR ARISING FROM A COURSE OF DEALING, USAGE, OR  TRADE PRACTICE. COMPANY EXPRESLY DISCLAIMS THAT CLIENT’S USE OF THE SERVICES, OR PROFESSIONAL SERVICES DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, WILL MEET CLIENT’S PARTICULAR REQUIREMENTS, THAT DEFECTS IN THE SERVICES, IF ANY, WILL BE CORRECTED; OR THAT RESULTS WILL BE TIMELY, ACCURATE, ADEQUATE OR COMPLETE OR THAT IT WILL MAINTAIN CLIENT DATA WITHOUT LOSS. COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE SECURITY AND PROTECTION OF CLIENT DATA NOR GUARANTEE DATA AVAILABILITY.  CLIENT BEARS THE SOLE RESPONSIBILITY AND LIABILITY FOR MAINTAINING BACKUP AND ARCHIVE COPIES OF CLIENT DATA. COMPANY DOES NOT WARRANT OR REPRESENT THAT USE OF THE SERVICES WILL RESULT IN COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, AND CLIENT UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE FOR ENSURING COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS AND REGULATIONS. COMPANY IS NOT LIABLE FOR DELAYS, FAILURES OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE COMPANY’S CONTROL, INCLUDING THE FAILURE TO PROMPTLY IMPLEMENT THE LATEST RELEASE OF THE SERVICES BY OR AT THE DIRECTION OF CLIENT. CLIENT MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD. CLIENT ALONE IS RESPONSIBLE FOR ANY THIRD-PARTY CONTENT, AND COMMUNICATIONS, MESSAGES, OR OTHER CONTENT THAT ITS AUTHORIZED USERS’ POST, UPLOAD, SUBMIT, TRANSMIT, OR SHARE VIA THE SERVICES, OR THE PROFESSIONAL SERVICES DELIVERABLES, INCLUDING ALL CLIENT DATA. 
  1. LIMITATION OF LIABILITY.
  1. UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE TO CLIENT OR ANY THIRD PARTY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, WORK STOPPAGE, OR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, LOST PROFITS, LOSS OF USE OF EQUIPMENT, LOSS OF REPUTATION, OR LOST CONTRACTS, OR FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY CLIENT.
  1. TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, COMPANY’S ENTIRE AGGREGATE LIABILITY, AND CLIENT’S SOLE AND EXCLUSIVE REMEDY, FOR ANY CLAIM OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES SHALL NOT EXCEED THE LESSER OF (1) TEN THOUSAND US DOLLARS ($10,000,00), OR (2) TOTAL FEES PAID OR PAYABLE BY CLIENT TO COMPANY,  PURSUANT TO THE APPLICABLE ORDER FORM IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO THE CLAIM OR CAUSE OF ACTION.
  1. The waivers and limitations in this Section apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose. Neither party may bring a claim or action, regardless of form, arising out of the Agreement more than twelve (12) months after the claim or cause of action arose.
  1. INDEMNIFICATION.
  1. Company Indemnification. Company will indemnify, defend, and hold harmless Client and its officers, directors, agents and employees from and against any third-party claims (including any and all liabilities, damages, losses, costs and expenses and reasonable attorneys’ fees) (“Claims”) finally awarded to the extent such Claims directly arise from Client’s use of the Services infringes on a third-party’s intellectual property rights in the United States.
  1. Client Indemnification. Client will indemnify, defend, and hold harmless Company, its affiliates and their respective officers, directors, agents and employees from and against any and all third-party Claims to the extent such Claims arise from or relate to (1) Client Data or Third Party Content; (2) Client’s breach of the Agreement; (3) Client’s gross negligence or willful misconduct; (4) modification to the Services or any deliverables made by or at the direction of Client and designed solely in accordance with specifications provided by Client; (5) Client’s violation of applicable law; and/or (6) Client’s infringement of intellectual property rights of a third party.
  1. Indemnification Procedure. When seeking indemnification pursuant to this Agreement, the party seeking indemnification shall (1) promptly notify the indemnifying party in writing of the Claim provided that any failure or delay to provide such notice shall not affect a party’s obligation to indemnify to the extent the indemnifying party is materially prejudiced by such failure or delay (2) give the indemnifying party reasonable information and cooperation required to defend such suit, claim or proceeding, and (3) allow the indemnifying party to control the defense of any such Claim and all negotiations for its settlement or compromise; provided, however, the indemnifying party shall not settle any claim without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party may be represented in the defense of any such claim, at the indemnified party’s expense, by counsel of its selection. The indemnified party shall have no liability for settlements made or costs incurred without its consent. The absence of insurance shall not diminish any responsibility of either party’s obligation to indemnify under the Agreement.
  1. Mitigations and Exceptions. In response to an actual or potential infringement Claim, Company may at its option: (a) procure rights for Client’s continued use of the Services, (b) replace or modify the allegedly infringing portion of the Services to avoid infringement without reducing the Services’ overall functionality, or if options (a) and (b) are not commercially practicable, (c) terminate the affected Order Form and refund to Client any prepaid, unused amounts for Fees for the terminated portion of the Services.
  1. Conditions. Company’s obligations in Section do not apply to infringement resulting from (1) Client’s modification of the Services or use of the Services in combination with items not provided by Company (including Third-Party Providers), (2) Client’s use of the Services other than the most recent release, (3) Client’s unauthorized use of the Services, or (4) if Client settles or makes any admissions about a claim without Company’s prior written consent. This Section sets out Client’s exclusive remedy and Company’s entire liability regarding infringement of third-party intellectual property rights.
  1. CONFIDENTIALITY.
  1. Confidential Information. Except as expressly provided herein, the parties agree that the receiving party shall not publish or otherwise disclose and shall not use for any purpose any non-public information about the disclosing party’s business or activities that is proprietary and confidential that is furnished to it by the disclosing party pursuant to the Agreement which (i) if disclosed in tangible form is marked “Confidential” or with other similar designation to indicate its confidential or proprietary nature, or (ii) if disclosed orally is indicated orally to be confidential or proprietary by the disclosing party at the time of such disclosure, or (iii) is confirmed in writing as confidential or proprietary by the disclosing party within a reasonable time after such disclosure, or (iv) by its nature or the circumstances surrounding its disclosure should reasonably be regarded as confidential (collectively, “Confidential Information”).  Notwithstanding the foregoing, Confidential Information shall not include information that, in each case as demonstrated by written documentation: (i) was properly in receiving party’s possession or properly known by it, without restriction, prior to receipt from the disclosing party; (ii) was rightfully disclosed to receiving party by a third party without restriction; (iii) is, or becomes generally available to the public or otherwise part of the public domain, other than through any act or omission of the receiving party (or any subsidiary, agent or employee of the receiving party) in breach of the Agreement; (iv) was independently developed by the receiving party without reference to or use of any Confidential Information disclosed by the disclosing party; or (v) is approved in writing by the disclosing party for release.
  1. Return of Confidential Information.  Upon termination of the Agreement for any reason or upon request of the disclosing party at any time, the receiving party will (i) promptly return to the disclosing party the original and all copies of all Confidential Information or, in lieu thereof, certify that all such Confidential Information has been destroyed; and (ii) destroy all notes and copies thereof made by receiving party containing any Confidential Information, provided that neither party shall be obligated to return or destroy Confidential Information to the extent necessary to fulfill its obligations and to enforce its rights under the Agreement or to the extent otherwise required by law, regulation, legal, regulatory or judicial process, rule or practice governing professionals or any internal compliance policy or procedure relating to the safeguarding or backup storage of data; provided that any such Confidential Information so not returned or destroyed shall remain subject to the confidentiality and use covenants contained herein, without regard to term.
  1. Confidentiality and Non-Use. As receiving party, each party will (a) hold in confidence and not disclose Confidential Information to third parties except as permitted in this Agreement, and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party shall use reasonable care to protect the Confidential Information using at least the same degree of care the receiving party uses to protect its own Confidential Information of a similar nature, but in no event with less than reasonable care. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Company the subcontractors referenced herein), provided it remains responsible for their compliance with this Section and they are bound to confidentiality obligations no less protective than this Section.
  1. Remedies.  Each party agrees that unauthorized use or disclosure of Confidential Information may cause substantial harm for which money damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, including an injunction (without the necessity of posting any bond or surety), in addition to other available remedies, for breach or threatened breach of this Section.
  1. Permitted Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Client Data and other Confidential Information, to the extent such disclosure is reasonably necessary for: (i) exercising the rights granted to it and fulfilling its obligations under the Agreement, provided such disclosure is only made to the receiving party’s employees, agents, consultants, or representatives with a need to know such Confidential Information and who are bound by a confidentiality agreement or other duty of confidentiality no less restrictive than the duties in this Section; (ii) complying with applicable law, rules, or regulations; or (iii) submitting information to tax or other governmental authorities.  If a party is required to make any disclosure of the disclosing party’s Confidential Information in accordance with subsections (ii) and (iii) above, to the extent it can legally do so, it will give reasonable advance written notice to the disclosing party of such intended disclosure, and will use its reasonable efforts to secure confidential treatment of such information prior to its disclosure (such as seeking, or allowing the disclosing party a reasonable opportunity to seek,  a protective orders or otherwise).
  1. NON-SOLICITATION. During the Term of this Agreement and for a period of twelve (12) months thereafter, Client shall not, directly or indirectly, in any manner solicit or induce for employment any person who performed any work under this Agreement on behalf of Company or its affiliates who is in the employment of the Company or its affiliates.
  1. PUBLICITY. Neither party may publicly announce this Agreement except with the other party’s prior written consent or as required by law. However, Company may include Client and its trademarks in its Client lists and promotional materials but will cease use at Client’s written request.
  1. GENERAL PROVISIONS.
  1. Relationship of the Parties. The parties are independent contractors, not agents, partners, or joint venturers.
  1. Assignment. Company and Client may not assign this Agreement without the prior written consent of the other party, except that either party may assign this Agreement upon notice in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.             
  1. Entire Agreement. This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements or communications regarding its subject matter, whether written or oral. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
  1. Updates to Agreement and Services. Company reserves the right to revise and update the terms of this Agreement, to add or revise applicable terms of use for its website or the Services, or modify or discontinue the Services (or any part thereof) at any time with or without notice. All revisions and updates are effective immediately when posted to the Site as indicated in the “Last Updated” date above and apply to all access and use of the Services thereafter. Client agrees to review the latest version of the Agreement on the Site periodically to remain aware of any modifications to the Agreement. Any use of the Services after any revisions or updates will constitute acceptance by Client of such changes. We may update the functionality, content, method, provision or integration methods of Services from time-to-time and note the Service content is not necessarily complete or up-to-date. Any of the material on Services may be out of date at any given time, and we are under no obligation to update such material. Company shall not be liable to Client or to any third party for any modification, price change, suspension or discontinuation of the Services.
  1. Notices. Except as set out in this Agreement, notices to Client under this Agreement must be in writing and will be deemed received (a) immediately upon  delivery as set forth below, (b) the business day following delivery via nationally-recognized overnight courier service, or (c) the third business day after it is sent to either the email address for Client that is on file with the Company, or by U.S. mail to the mailing address on the applicable Order Form, or the contact information associated with Client’s account provided at registration, as applicable. Any notices to Company shall be deemed effective upon receipt and must be delivered by sending by (i) certified US mail, return receipt requested, or (ii) by overnight courier  to Legal Department – AutoFluent. 540 Devall Drive, Suite 301, Auburn AL 36832, Attn: General Counsel; in either case with an Email  to: Legal@fullsteam.com. Client may update their contact information for notice by providing notice to Company. Company may also send operational notices to Client electronically, including through the Services.
  1. Equitable Relief. Client and Company agree that a breach of this Agreement may cause irreparable injury and damage, and that the non-breaching party will be entitled to injunctive and other equitable relief to prevent a breach, in addition to any other remedy to which the non-breaching party might be entitled.
  1. Governing Law and Jury Trial Waiver. The Agreement shall be governed by and construed in accordance with the laws of (i) the United States of America and the State of Alabama, if Client is domiciled or resident in the United States or anywhere other than Canada or Europe, (ii) Canada, and Province of Ontario, if Client is domiciled or resident in Canada, and (iii) France, if Client is domiciled or resident in a country in Europe, in each case excluding rules governing conflict of law and choice of law. The (A) state and federal courts located in Lee County, Alabama shall have exclusive jurisdiction to adjudicate any dispute arising out of the Agreement if United States and the State of Alabama laws apply, (B) the provincial and federal courts in in the City of Toronto, Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement if Canadian law applies, and (C) the courts in Paris, France shall have exclusive jurisdiction to adjudicate any dispute arising out of the Agreement if French law applies. Each party hereto expressly consents to the personal jurisdiction of, and venue in, such applicable courts. The parties agree that the UN Convention on Contracts for the International Sale of Equipment (Vienna, 1980) and the Uniform Computer Information Transaction Act or similar federal or state laws or regulations shall not apply to the Agreement nor to any dispute or transaction arising out of the Agreement. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, ARISING OUT OF THIS AGREEMENT.
  1. Dispute Resolution. In the event of a dispute by Client arising out of this Agreement, the parties agree that in good faith they will escalate the dispute to management in their respective organizations and agree to meet and confer at least once in an effort to resolve any such dispute within ninety (90) days of first written notice of the dispute.  If such escalation and meet and confer attempts do not resolve the dispute, the parties agree to participate in at least one (1) day of non-binding mediation (costs to be split by the parties) with a mediator to which they jointly consent before proceeding filing a claim in court against the other party.
  1. Force Majeure. Company and Client are not liable for any delay or failure to perform any obligations under this Agreement (except for payment obligations) due to events beyond their reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster provided, however, that in the event such period of extended delay exceeds ninety (90) days in respect of a Party, either Party may terminate this Agreement upon notice to the Party, as applicable or, in the case of Company, may invoke its right of suspension in accordance with the Agreement. 
  1. Subcontractors. Company may use subcontractors and permit them to exercise Company’s rights under the Agreement, but Company remains responsible for the subcontractors and the delivery of the Services to Client under this Agreement.
  1. Waivers and Severability. Waiver by a party of any breach of any provision of the Agreement must be in writing and signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held impermissible pursuant to applicable law, invalid by a court of competent jurisdiction, or otherwise illegal or unenforceable, it will be limited to the minimum extent necessary, so the rest of this Agreement remains in full force and effect to the fullest extent possible.
  1. Third Parties. Except as expressly provided herein, this Agreement does not create or establish any rights or beneficiaries for any person or entity that is not a party to this Agreement.
  1. Export. Client acknowledges that the Services may be subject to export control and economic sanctions restrictions imposed by the U.S. government and import restrictions by certain foreign governments (collectively “Trade Laws”). In using or accessing the Services, Client will not and will not allow any third party to use the Services in violation of any Trade Laws or remove or export from the U.S. or allow the export or re-export of any part of the Service or any direct product thereof to any location, party or end-use which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval. Client represents and warrants that it and any of its Authorized Users: (i) are not listed on any U.S. government list of prohibited or restricted parties, including the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; (ii) are not an entity or person who is organized under the laws of, ordinarily resident in, or controlled by the government of, any country or region (1) that is subject to a U.S. government embargo or comprehensive sanction, (2) to which the U.S. has prohibited export transactions, or (3) that has been designated by the U.S. government as a “terrorist supporting” country; (iii) will not use the Services for the manufacture, design or development of nuclear, chemical or biological weapons or missile technology, or for terrorist activity; and (iv) will not submit to the Service any information controlled under the U.S. International Traffic in Arms Regulations or listed on the Commerce Control List unless approved in writing by Company. Client will notify Company promptly if it or any Authorized User becomes subject to any order or restriction listed in this Section.
  1. Compliance with Laws. Client and Company will comply with all applicable laws in their access, use and provision of the Services.
  1. Open Source and Third-Party Software. The Services may incorporate third-party open-source software (“OSS”), as listed in the Documentation or provided by Company upon request. Client’s internal use of the unmodified Services in the form provided and as authorized in this Agreement will not require Client to comply with the terms of OSS licenses.
  1. Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Order Form 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited.
  1. Antibribery and Kickbacks. Client has not received or been offered any bribe, kickback, illegal or improper payment, gift, or thing of value from any Company personnel or agents in connection with the Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. If Client becomes aware of any violation of the above restriction, Client will promptly notify Company.

16. CLASS ACTION WAIVER

THIS SECTION CONTAINS A BINDING CLASS ACTION WAIVER. IT AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE ANY DISPUTE WITH US.

To the extent permitted by applicable law (“Excluded Disputes”), Client may only bring any claims related to this Agreement in court or arbitration on its own behalf and not on a class or collective basis on behalf of others.  Client agrees that it will not participate in any class or collective action or as a member of any such class or collective proceeding for any claims related to or arising out of this Agreement and Services from Company. Client also agrees not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding.TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT YOU VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLY WAIVE ANY RIGHT YOU MAY HAVE TO BRING OR OTHERWISE PARTICIPATE WITH OTHER PERSONS IN ANY CLASS, COLLECTIVE, CONSOLIDATED ACTION OR REPRESENTATIVE ACTION UNDER ANY FEDERAL, STATE OR LOCAL LAW OR STATUTE.  To opt out, you must notify us in writing within thirty (30) days of the date that you first became subject to this provision. You must use this address to opt out: legal@fullsteam.com.You must include your name and residence address, the email address you use for your account with us, and a clear statement that you want to opt out.  If and to the extent the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then such preceding language in this section will be null and void.

EXHIBIT 1

EQUIPMENT RENTAL

  1. Scope. This Exhibit 1 to the Agreement only applies if, and to the extent, Client leases Equipment as reflected in the applicable Order Form. For the avoidance of doubt, all terms of the Agreement which do not expressly conflict with this Exhibit still apply to Client if Client leases Equipment from ScaleIT.
  • Preparation of Location. On or prior to the start of the lease term for each unit of Equipment, Client shall, at its expense, prepare a suitable site at the location specified in the applicable Order From for the installation of such Equipment. Client shall grant access to the location as needed for the purpose of such installation.
  • True Lease. The Parties intend that this agreement to rent Equipment shall constitute a true lease under applicable law (the “Lease”). ScaleIT has title to the Equipment at all times. Client acquires no ownership, title, property, right, equity, or interest in the Equipment other than its leasehold interest solely as Client subject to all the terms and conditions of this Agreement.
  • Rent: In consideration of the Client’s right to possess and use any unit of Equipment during the Lease term of the applicable Order Form, Client shall pay ScaleIT the applicable Rent in the amount and payment schedule indicated in the applicable Order Form.
  • Security Interest. The Parties intend and agree that, if this Agreement is recharacterized under applicable law as a secured financing or a lease intended for security, this Agreement shall be deemed a security agreement and Exhibit 1 hereof shall be deemed to grant ScaleIT by Client a lien on and first priority security interest in the Equipment and all proceeds thereof, to secure the payment of Client’s obligations under this Agreement. Each Party agrees to execute, acknowledge, deliver, file, and record, or cause to be executed, acknowledged, delivered, filed, and recorded such further documents (including without limitation UCC financing statements), and to do all such things and acts, necessary to ensure that such security interest would be a perfected first priority security interest under applicable law.
  • No Setoff. Client’s obligation to pay all rent and other amounts under this Agreement is absolute and unconditional and is not subject to any abatement, counterclaim, defense, deferment, interruption, recoupment, reduction, or setoff for any reason whatsoever.
  • Term. The term of the lease to rent applicable Equipment will be noted in the applicable Order Form (the “Lease Term”).
  • Intellectual Property. All Equipment which ScaleIT leases to Client is the personal property of ScaleIT and may not, under any circumstances, be considered fixtures. Client may not sell, re-lease, encumber, or otherwise dispose of any Equipment leased from ScaleIT and will keep the leased Equipment free of all liens, claims or encumbrances whatsoever. Except as may be described in the applicable Order Form, no marking of any kind shall be placed on any Equipment by Client or any other person except with the prior written consent of ScaleIT. Any such marking placed on a unit of Equipment by Client or another Person shall be removed at Client’s expense on or before the expiration date of the applicable Order Form. Client shall, at Client’s expense and to ScaleIT’s satisfaction, place and maintain on each Unit of Equipment any identifying marks required by ScaleIT.
  • Replacements and returns. The leased Equipment will be replaced during any Lease Term or repaired at no charge to Client if the Equipment becomes inoperable through no fault of Client, nor a third-party not authorized by ScaleIT to perform maintenance or repairs on the Equipment, nor due to the Excluded Circumstances (defined below), otherwise the Client will be charged for the repairs. If the Equipment is damaged beyond repair, the Client will be charged the current purchase price of the Equipment, minus any lease Fees already paid. If the Client requires new Equipment, a new Lease Term or purchase agreement will be required.

In the event that Client wishes to return, or exchange Equipment during the Lease Term, Client will be charged for the remainder of the Lease for the returned or exchanged Equipment and a new Lease will be required for the new Equipment. Client will be responsible for shipping the failed or malfunctioning item of Equipment to ScaleIT at Client’s own risk and expense.  By sending the Equipment to ScaleIT, Client is authorizing ScaleIT to repair the Equipment; the Equipment will be repaired and returned to Client within 30 business days of ScaleIT’s receipt of the Equipment.  If external vendor repair is required, the 30-day repair window will be extended as necessary.  Unless otherwise expressly agreed to by ScaleIT in writing, fees for the repair and return service are charged per occurrence at ScaleIT’s then-current time and material rates.  In the event the Equipment does not need to be repaired, ScaleIT will charge Client a $75.00 analysis fee.

Before Client sends the Equipment back to ScaleIT for a return or repaid, Client is responsible to back up all exiting data, back up existing files, and remove or erase all existing data and remove any accessories from the product. If Client fails to timely return the Equipment, Client will be charged the then-current list price for the replacement item of Equipment.  Any failed item of Equipment returned to ScaleIT between 31 and 60 days after Client’s receipt of the replacement item of Equipment may be accepted for return at ScaleIT’s discretion and, if accepted, may be subject to a restocking fee of 25% of the then-current list price for the replacement item of Equipment.

Client must, within fifteen (15) days of receipt of any replacement Equipment, return the Equipment, which was replaced, to ScaleIT at Client’s expense. If Client does not return the replaced Equipment, or if the Equipment became inoperative because of negligence or willful acts, Client will be charged for the replacement value of the Equipment. If Client terminates the Agreement, which will automatically terminate the Lease, or terminates only the Lease prior to the end of its Lease Term, payment for the remainder of the Lease Term will be immediately due and payable to ScaleIT. Upon termination of the Lease, Client must, within fifteen (15) days of the termination, return the leased Equipment to ScaleIT at Client’s expense or Client will be charged the replacement value of the Equipment.

ScaleIT will ship any replacement Equipment or parts to the mailing address submitted to ScaleIt when Client submits a request for a return or repair, unless you contact our customer support team before we start processing your service request. A change in mailing address may require cancellation of your existing service request and a creation of a new request. If the replacement Equipment is returned to ScaleIt because delivery cannot be completed at that address, ScaleIT will attempt to contact Client for an alternative address. If Client does not provide a new address within sixty (6) days after the original delivery attempt, ScaleIT will notify Client that it considers the Equipment abandoned. If Client abandons the Equipment, then ScaleIT may dispose of Client’s leased Equipment in accordance with applicable law.

10. No Liability for Other Property: When Clients sends Equipment for repair or replacement, Client shall not send any other property with the Equipment. This includes ScaleIT-issued accessories for which Client did not request service, third-party products or accessories, etc. Client is responsible for the loss of any property other than the leased Equipment that Client sends to ScaleIT even when that property is adhered to the Equipment.

11. Equipment Warranty and Maintenance Policies, Procedures and Limitations. Equipment returned for (i) reasons other than malfunction or defect (such as normal wear and tear); or (ii) malfunction, defect or damage caused by Excluded Circumstances, will not qualify for maintenance services at no additional charge hereunder, whether during or after the applicable warranty period.  “Excluded Circumstances” means (i) use of the Equipment with electrical systems external to the Equipment or accessories, attachments or other devices not furnished by ScaleIT, including without limitation cables and connectors; (ii) faulty electrical power (e.g., not properly grounded, surge suppressed, etc.) (iii) malfunctions or other problems relating to the Equipment caused by software other than the Software; and or (iv) malfunctions or damage resulting directly or indirectly from acts of God, weather, pandemics,  acts of civil or military authority, civil disturbance, war, terrorist acts, strikes or other labor disputes, communications or utility failures, fires, laws, regulations, acts, or orders of any governmental body, agency or official.  If Client uses a third-party maintenance provider, all warranties on Equipment currently in effect will immediately expire.  In addition, no warranty will be given on any new Equipment purchased or leased by Client as long as Client uses a non-certified third-party maintenance provider.  ScaleIT will not be responsible for any damage to Equipment caused by a non-ScaleIt modification or repair. ScaleIT’s sole obligation with respect to a warranty claim received by ScaleIT during the applicable warranty period shall be to repair or replace any malfunctioning Equipment, which may be with a refurbished product, provided that Client has first utilized ScaleIT’s assistance services and has not resolved the problem. Equipment returned to ScaleIT which is determined not to be in need of repair (“No Fault Found” or “NFF”) by ScaleIT technicians will not be considered by ScaleIT as qualifying for maintenance services at no additional charge hereunder, whether during or after the applicable warranty period. 

         When Equipment upgrades are necessary because of Equipment’s performance or end of life, the parties agree to negotiate in good faith a mutually agreeable amendment to the Order Form that includes an adjustment in the fees associated with Equipment Lease for such upgraded Equipment.  In lieu of a price adjustment, ScaleIT, at its discretion, may substitute Equipment of equal or greater functionality.

         ScaleIT will not be responsible for backing-up, removing, protecting or restoring programs, data or removable storage media contained in or operating on any item of returned Equipment, unless otherwise agreed to in writing by the parties.

To the extent permitted by law, any warranties or guarantees provided under Sales of Equipment legislation are hereby excluded. Client operates the Equipment at its own risk.

12. Liens. Client shall keep the Equipment free and clear of all Liens. Client shall effect the removal of any such Lien immediately upon written notice thereof from ScaleIT or otherwise becoming aware of the existence of the Lien[, provided that Client shall not until the end of the lease term of the applicable Order Form be required to effect the removal of a Lien which Client is contesting diligently, in good faith, and by appropriate legal proceedings and which ScaleIT determines in its sole discretion does not present a material danger of sale, forfeiture, or loss of Equipment or of a use of the Equipment that would violate any term of this Master Agreement or the applicable Order Form].

  1. Subleases. Client shall not enter into any sublease of any Unit of Equipment without ScaleIT’s prior written consent, which consent may be withheld in ScaleIT’s sole discretion. No permitted sublease shall relieve Client of its obligations under this Agreement, and Client shall remain primarily liable under this Agreement and the applicable Order Form for the performance of all of the terms hereof and thereof to the same extent as if such Sublease had not occurred.
  1. Equipment Location. Client may not move any Unit of Equipment from its location noted on the applicable Order Form without ScaleIT’s prior written consent.
  1. Personal Property. The parties intend that each unit of Equipment remains at all times personal property and not a fixture under applicable law, even if the unit of Equipment or any part thereof, may be or become affixed or attached to real property or any improvements.
  1. Operation. Client shall operate each unit of Equipment exclusively in connection with its business. Client shall not operate or permit the operation of any unit of Equipment in an unsafe or improper manner.
  1. Inspection. ScaleIT’s employees and agents shall have the right of access to Client’s premises to inspect the Equipment and any records related thereto on reasonable notice and during regular business hours. On ScaleIT’s request, Client shall cooperate with and assist ScaleIT in obtaining access to premises other than Client’s so that ScaleIT’s employees and agents may inspect the Equipment.
  1. Risk of Loss. During the Lease Term Client shall bear all risk of loss, damage, destruction, theft, taking, confiscation, or requisition, partial or complete, of or to the Equipment or its use, however caused or occasioned (“Loss“). Client shall notify ScaleIT in writing within then (10) days of learning of any such Loss.
  1. Material Impairment. If ScaleIT determines in its sole discretion that a Loss has materially impaired the unit of Equipment affected or its use, Client shall pay, [on ScaleIT’s demand within ten (10) days of notice by ScaleIT of such determination (“Loss Payment Date”), the following amounts (collectively, “Loss Payment“):

(a)all Rent and other amounts due prior to the Loss Payment Date with respect to such unit of Equipment; plus

(b)the Stipulated Loss Value of the unit of Equipment determined in accordance with the applicable Order Form.

This Agreement and the applicable Order Form shall terminate with respect to any materially impaired unit of Equipment on receipt by ScaleIT of the corresponding Loss Payment. Upon such receipt and termination, ScaleIT shall deliver to Client a duly executed quitclaim bill of sale title to such unit of Equipment to Client.

  • Non-Material Impairment. If ScaleIT determines in its sole discretion that a Loss has not materially impaired the unit of Equipment affected or its use:

(a)this Agreement and the applicable Order Form shall continue with respect to such unit of Equipment as though no Loss had occurred; and

(b)Client shall at its sole expense promptly repair or cause to be repaired such Unit of Equipment to the condition in which such unit of Equipment is required to be maintained hereunder and under the applicable Order Form, to the satisfaction of ScaleIT, and, for the avoidance of doubt, there shall be no abatement of Rent or Rent credit for any period in which a unit of Equipment is in a shop or otherwise out of operation in connection with any maintenance, repairs, or mandatory modifications under this Agreement.

  • Events of Default. Each of the following events is an “Event of Default” under this Exhibit.

(a)if Client fails to pay when due any Rent under any Order Form;

(d)if Client’s interest or any portion thereof any Order Form devolves on or passes to any person, whether by operation of law or otherwise;

(c)if Client (i) becomes insolvent, (ii) is generally unable to pay, or fails to pay, its debts as they become due, (iii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, (iv) makes or seeks to make a general assignment for the benefit of its creditors, or (v) applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property or business; or

(d)if Client sells, transfers, or disposes of all or substantially all of its assets or the property of its business, or merges or consolidates with any other entity[, unless Client is the surviving entity and has a net worth greater than or equal to its net worth immediately prior to the merger or consolidation.

  • Default Remedies. If an Event of Default occurs, ScaleIT may, in its sole discretion, exercise one or more of the following remedies:

(a) declare this Agreement and the Order Forms in default;

(b) terminate in whole or in part this Agreement and the Order Forms;

(c) take possession of, or render unusable, any unit of Equipment wherever it may be located, without demand or notice, without any court order or other process of law, and without liability to Client for any damages occasioned by such action;

(d) require Client to deliver any unit of Equipment in the condition required under the applicable Order Form to a location designated by ScaleIT and for each day that Client fails to return any Unit, ScaleIT may demand an amount equal to the Rent, prorated on the basis of a thirty-day month, in effect immediately prior to such Event of Default;

(e)proceed by court action to enforce performance by Client of this Agreement and any or all Order Forms and/or to recover all damages and expenses incurred by ScaleIT by reason of any Event of Default;

(f)terminate any other agreement that ScaleIT may have with Client;

(g)sell any or all of the Equipment at public or private sale, with or without notice to Client or advertisement, or otherwise dispose of, hold, use, operate, lease to others, or keep idle such Equipment, and without any duty to account to Client for such action or inaction or for any proceeds with respect thereto, and apply the net proceeds thereof (after deducting all expenses (including legal fees and costs) incurred in connection therewith) to the amounts owed to ScaleIT under this Master Agreement and any Order Form; provided, however, that Client shall remain liable to ScaleIT for any deficiency that remains after any sale or lease of such Equipment; and

(h)exercise any other right or remedy available to ScaleIT at law, in equity, by statute, in any other agreement between the parties, or otherwise.

 

If Client is in default or an Event of Default has occurred and is continuing, ScaleIT may, in its sole discretion make any payment or perform any obligation on behalf of Client or take any action that ScaleIT in ScaleIT’s sole discretion deems necessary to maintain and preserve any or all units of Equipment and ScaleIT’s interests therein. ScaleIT’s payment, performance of such obligation, or taking of such action shall not be a waiver by ScaleIT of any default or Event of Default or a release of Client by ScaleIT. Client shall pay immediately on demand to ScaleIT all sums so paid by ScaleIT and any expenses (including legal fees and costs) incurred by ScaleIT in connection with ScaleIT’s payment, performance of such obligation, or taking of such action.

  • Holdover. If by the expiration or earlier termination of the Lease  term of a Order Form for a unit of Equipment leased under it, Client does not return such unit of Equipment to ScaleIT in the condition required by and otherwise in accordance with the terms and conditions of this Agreement and such Order Form, Client shall continue to comply with all the terms and conditions of this Agreement with respect to such unit of Equipment including without limitation the obligation to pay 125% of the prorated daily Rent for each day from the expiration or earlier termination of the Lease term until the date on which Client returns such unit of Equipment to ScaleIT in the manner required under this Agreement (“Holdover Rent“). Nothing contained in this Section, including Client’s payment of Holdover Rent, shall (a) constitute a waiver of Client’s failure to perform any obligation under this Agreement; or (b) give Client the right to retain possession of any unit of Equipment after the expiration or earlier termination of the Lease term of the applicable Order Form with respect to such unit of Equipment.

Exhibit 2

Equipment Sale Agreement

This Exhibit is an Equipment Sale Agreement and only applies to the extent Client is purchasing Equipment from Company. For the avoidance of doubt, all terms of the Agreement which do not expressly conflict with this Exhibit still apply to Client if purchases Equipment from ScaleIT.

WHEREAS, Client desires to purchase from Company, and Company desires to sell to Client, the Equipment indicated for purchase under the applicable Order Form and subject to the both the terms and conditions of the Agreement and the additional terms the conditions set forth herein;

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1 Sale of Equipment. ScaleIT shall sell to Client and Client shall purchase from ScaleIT the Equipment described on the applicable Order Form in the quantities and at the prices set forth therein (the “Price[s]“),

2. Delivery. The delivery time for purchased Equipment will be specified in the applicable Order Form. Delivery dates are only estimated times of delivery ScaleIT shall not be liable for or in respect of any delay in delivery or loss or damage of the Equipment in transit.

Unless otherwise agreed in writing by the Parties, ScaleIT shall deliver the Equipment to Client’s address listed on the applicable Order Form (the “Delivery Location”) using, as applicable, the methods selected by ScaleIT, in ScaleIT’s sole discretion, for packaging and shipping such Equipment. Client shall take delivery of the Equipment within five (5) days of ScaleIT’s written notice that the Equipment have been delivered to the Delivery Location (“Delivery Date“).

If for any reason Client fails to accept delivery of any of the Equipment by the Delivery Date, or if ScaleIT is unable to deliver the Equipment at the Delivery Location owing to any act or omission of Client or its representatives, including without limitation the failure to provide appropriate instructions, documents, licenses, or authorizations: (i) Client shall bear the risk of loss to the Equipment; (ii) the Equipment shall be deemed to have been delivered; and (iii) ScaleIT, at its option, may store the Equipment until Client picks them up, whereupon Client shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

3.Non-Delivery. The quantity of any delivery of Equipment as recorded by ScaleIT on tender of delivery is conclusive evidence of the quantity received by Client on delivery unless Client can provide such documentary evidence as ScaleIT may reasonably require to establish the contrary. ScaleIT shall not be liable for any non-delivery of Equipment unless Client gives written notice to ScaleIT of the non-delivery within five (5) days of the Delivery Date. Any liability of ScaleIT for non-delivery of Equipment shall be limited to either, at ScaleIT’s sole option: (i) ScaleIT’s delivery of the undelivered Equipment at the Delivery Location within a commercially reasonable period of time; or (ii) pro rata adjustment of the invoice to reflect the quantity of Equipment actually delivered by ScaleIT.

4.Title and Risk of Loss. Title and risk of loss pass to Client upon delivery of the Equipment at the Delivery Location.

5.Inspection and Rejection of Nonconforming Equipment.

(a)Client shall inspect the Equipment on or before ten (10) days of taking delivery (“Inspection Period“). Client will be deemed to have accepted the Equipment unless it notifies ScaleIT in writing of any Nonconforming Equipment during the Inspection Period and furnishes such written evidence or other documentation as may be reasonably required by ScaleIT. “Nonconforming Equipment” means only the following: (i) product shipped is different than identified in this Agreement; or (ii) the product’s label or packaging incorrectly identifies its contents.

(b)If Client timely notifies ScaleIT of any Nonconforming Equipment, ScaleIT shall, in its sole discretion, either (i) replace such Nonconforming Equipment with conforming Equipment, or (ii) credit or refund the Price for such Nonconforming Equipment. Client shall ship, at its expense and risk of loss, the Nonconforming Equipment to ScaleIT’s facility located at 4625 East Bay Drive #107 Clearwater, FL 33764 within 30 days of ScaleIT’s receipt of Client’s written notice and any written evidence or other documentation of Nonconforming Equipment reasonably required by ScaleIT. If ScaleIT exercises its option to replace Nonconforming Equipment, ScaleIT shall within a commercially reasonable time after receiving Client’s shipment of Nonconforming Equipment, tender delivery of the replacement Equipment to Client, at Client’s expense and risk of loss, at the Delivery Location.

(c)Client acknowledges and agrees that the remedies set forth in Section 4(b) are Client’s exclusive remedies for the delivery of Nonconforming Equipment. Except as provided under Section 4(b), Client has no right to return Equipment purchased under this Agreement to ScaleIT.

6.Taxes. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Client. Client shall be responsible for all such charges, costs, and taxes; provided, that Client shall not be responsible for any taxes imposed on, or with respect to, ScaleIT’s income, revenues, gross receipts, personnel, real property, personal property, or other assets.

8.Payment Terms. ScaleIT shall be entitled to suspend the delivery of any Equipment if Client fails to pay any amounts when due hereunder

9.No Setoff. Client shall perform its obligations under this Agreement without setoff, deduction, recoupment, or withholding of any kind for amounts owed (or to become due and owing) or payable to it by ScaleIT[ or ScaleIT’s affiliates, whether under this Agreement, applicable law, or otherwise, and whether relating to ScaleIT’s or its affiliates’]breach, bankruptcy, or otherwise.

10.Warranties.

ScaleIT warrants to Client that for a period of one (1) year from the Delivery Date such purchased Equipment will materially conform to the specifications set forth in the applicable Order Form.

11. Disclaimer of Warranties.

(b)[EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 10 SCALEIT MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE EQUIPMENT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

(c)Products manufactured by a third party (“Third-Party Product”) may constitute, contain, be contained in or incorporated into, or attached to, or packaged together with, the Equipment. ScaleIt warrants that for a period of one (1) year from the Delivery Date such Third-Party products provided by ScaleIT will not contain manufacturing defects. Except as set forth herein, SCALEIT MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

ScaleIT shall not be liable for a breach of the warranty set forth in this Exhibit unless: (i) Client gives written notice of a claimed defect, reasonably described, to ScaleIT within five (5) days of the time when Client discovers or ought to have discovered the defect; (ii) ScaleIT is given a reasonable opportunity after receiving such notice to examine the Equipment affected and Client (if requested to do so by ScaleIT) returns such Equipment to ScaleIT’s place of business at ScaleIT’s cost for the examination to take place there; and (iii) ScaleIT reasonably verifies Client’s claim that such Equipment are defective

The ScaleIT shall not be liable for a breach of the warranty set forth in Section 10(a) if: (i) Client makes any further use of the Equipment affected after giving notice of a claimed defect; (ii) a defect arises because Client failed to follow ScaleIT’s oral or written instructions as to the storage, installation, use, or maintenance of the Equipment; or (iii) Client alters or repairs the Equipment without the prior written consent of ScaleIT

Subject to terms above, with respect to any Equipment affected by a defect during the Warranty Period, ScaleIT shall, in its sole discretion, either: (i) repair or replace such Equipment (or the defective part) or (ii) credit or refund the Price of such Equipment at the pro rata contract rate provided that, if ScaleIT so requests, Client shall, at ScaleIT’s expense, return such Equipment to ScaleIT.

THE REMEDIES SET FORTH IN SECTION 1 SHALL BE THE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND SCALEIT’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9.

13.Indemnification. Client shall indemnify, defend and hold harmless ScaleIT and its officers, directors, managers, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and of pursuing any insurance providers, incurred by Indemnified Party, relating to/arising out of or resulting from any claim of a third party [arising out of or occurring in connection with the Equipment.

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