InMapz Inc.
Master Service Agreement

Version: August 23, 2023

This Master Service Agreement (“MSA”) together with any Order(s) (as defined below and together with the MSA collectively the “Agreement”) is made by and between InMapz Inc. (“InMapz”) and the contracting party identified on the Order(s)(“Customer” or “you”) (where InMapz and Customer are together referred to herein collectively as the “Parties” and each individually as a “Party”) effective as of the date of last signature on the Order between the Parties that references the MSA (the “Effective Date”).

The Parties hereby agree: (a) that this MSA governs Customer’s and its Affiliates’ and Authorized Users’ access to and use of the InMapz Solution, InMapz Technology, Support, Professional Services, Documentation and other InMapz Offerings and (b) to the terms and conditions of the Agreement including any specific services terms, product details and any applicable license and/or subscription terms (including the number of Authorized Users and the duration of the subscription period) set forth in applicable Order(s) and/or SOW(s), each of which become binding on the Parties and are incorporated into this MSA upon execution of an Order and/or SOW.
If you enter into this MSA or the Agreement on behalf of another Person (including any Affiliates), you represent that you have the authority to bind such Person and Affiliates. If you do not have such authority, or if you do not unconditionally agree to this MSA or the Agreement, neither Customer nor any such other Person shall have any right to use the InMapz Solution, InMapz Technology, Support, Documentation, Professional Services and/or other InMapz Offerings. Affiliates of either Party may also execute Orders subject to compliance with the terms and conditions of this MSA.

1. DEFINITIONS.
   “Affiliate” means, with respect to a Party, any corporation or other business entity Controlled by, Controlling or under common Control with that Party, whereby “Control” means (i) the direct or indirect ownership of more than 50% (fifty percent) of the equity interest in such corporation or business entity, or (ii) the ability in fact to control the management decisions of such corporation or business entity.
   “Aggregated and/or Anonymized Data” means any data (including Equipment manufacturer names and model numbers) that has been aggregated with other data or extracted or derived from Customer Content (including reports and point cloud data) in both cases such that Customer Personal Data and other data that uniquely and specifically identifies the Customer has been removed or obfuscated such that the Customer is no longer identifiable from such data.
   “Authorized Reseller” means any third party reseller who has executed a reseller agreement with InMapz to resell any InMapz Offerings including Professional Services or subscriptions to the Solution.
   “Authorized User(s)” means Customer, its authorized Affiliates, and their respective employees, contractors or consultants solely to the extent providing services on behalf of Customer (or its Affiliates).
   “Customer Content” means any data, text, applications, files, electronic documents, images, information or other materials (including floor plans, mechanical drawings, spreadsheets, other facility management Software, other asset inventory management Software (including related data), point cloud data and reports) that Customer or its Affiliates or Authorized Users (a) upload, import or input into the Solution or provides to InMapz in the course of InMapz’s provision or performance of the Solution, InMapz Technology, Professional Services or Support by or on behalf of Customer or its Authorized Users or (b) create in connection with or through use of the Solution, InMapz Technology, Professional Services or Support including adding equipment to maps including specifying the location of equipment on maps and identifying equipment specification-related information (e.g., manufacturer name, model numbers, etc.), including Customer Image Data and Customer Personal Data.
   “Customer Image Data” means any Customer Content that is uploaded, submitted, or otherwise posted to the Solution by or on behalf of Customer in the form of images, videos or photographs (including 2D or 3D).
   “Customer Personal Data” means any Customer Content from which a living individual may be identified or is otherwise identifiable, whether directly or indirectly.
   “Documentation” means the InMapz user manual and any other technical documentation related to the Solution, Support or Professional Services made available to Customer by InMapz.
   “Equipment” means building or facilities equipment including heating, cooling, air-conditioning and ventilation systems; electrical; audio systems; plumbing; alarm equipment (e.g., fire, smoke and security protection), etc.
   “Fees” mean fees as described on the Order or SOW.
   “InMapz Data” means Aggregated and/or Anonymized Data that InMapz creates or extracts through processing or analyzing Customer Content including all digital and virtual representations (including point clouds (e.g., digital representations of Equipment) and machine learning models (including representing, embodying, analyzing, related to or in connection with) building structures; rooms or spaces in buildings); Equipment; Usage Data and Learning & Process Improvement Data.
   “InMapz Offerings” means the Solution, all other InMapz Technology, Support, Professional Services, Documentation and any other Software, tools, technology, Intellectual Property Rights, services, products, subscriptions, data, content, material or offerings provided or otherwise made available directly or indirectly by InMapz including through any Affiliate or Authorized Reseller.
   “InMapz Production Process” means the proprietary production process (including any process, method, workflow, know-how, Software and other intellectual or industrial property and/or proprietary rights therein) used by or on behalf of InMapz to create and render InMapz Spaces.
   “InMapz Space” means a 2D or 3D representation of a Subject Property that is created via the InMapz Production Process and displayed and accessible in the Solution.
   “InMapz Technology” means all Software, technology, data and other Intellectual Property Rights created by or on behalf of or otherwise provided by InMapz or its Affiliates including: (a) the Solution; (b) the InMapz Production Process; (c) InMapz Spaces; (d) InMapz Data; (e) Software, technology, processes, methods, workflows, know-how, system performance data, auto-generated labels (e.g., for Equipment), Equipment or space indexing, computer vision (including optical character recognition (“OCR”) created by or on behalf of InMapz or its Affiliates; (f) any artificial intelligence (“AI”) training data sets, AI models or machine learning (“ML”) algorithms of any of the foregoing; and (g) any subsequent improvements to, enhancements of or other derivative works of any of the foregoing.
   “Intellectual Property Rights” means all intellectual property rights throughout the world, including: (a) copyrights, moral rights, design rights, database rights, data collections, and other sui generis rights; (b) Trade Secrets or other proprietary rights in confidential information or technical, regulatory and other information, designs, results, techniques, and other know-how; (c) trademarks, service marks, corporate names, trade names, Internet identifiers, trade dress, and other similar designations of source or origin together with the goodwill symbolized by any of the foregoing; (d) patents, disclosures of inventions (whether or not patentable), patent applications, reissues, reexaminations, utility model rights and design rights (registered or otherwise), and registered or other industrial property rights; and (e) applications, registrations, and renewals for, and all associated rights with respect to, any of the foregoing in any part of the world.
   “Learning & Process Improvement Data” means Solution, Software, Aggregated and/or Anonymized Data, content and other materials that result from the InMapz Production Process including for the purpose of providing or improving the Solution or Professional Services and to develop new services and products.
   “Order(s)” means the InMapz-provided: (i) online registration or order form or click through agreement referencing this MSA and/or (ii) signed order form between Customer and InMapz (or an Authorized Reseller) providing a website link to or otherwise referencing this MSA.“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
   “Professional Services” means any services performed by InMapz relating to the Solution such as set up, installation, activation, map creation (including updates and corrections to maps created by InMapz based on Customer Content (e.g., floor plans, mechanical drawings) including iterative updates and corrections), data processing, data upload, training (which shall under all circumstances be provided in InMapz’s sole discretion), configuration, integration, customization, and optimization“
   “Representatives” means officers, directors, employees, contractors, vendors, consultants, advisors, attorneys, agents, Affiliates, successors, assigns and other representatives.
   “Software” means software, algorithms, computer programs, applications, tools, source code, object code, code, tools, application programming interfaces, integrations, specifications, designs, data files, technology, AI training data sets, AI models, ML algorithms and other intellectual or industrial property and/or proprietary rights therein.
   “Solution” means the software-as-a-service (“SaaS”) services provided by InMapz and set out in the Order or which InMapz otherwise agrees to provide access to Customer including any Software used by InMapz to offer, provide, operate, maintain, host or otherwise make available the Solution and any related content, tools and any other Software provided by InMapz.
   “SOW” means any statement of work which is: (i) signed by both Parties and incorporates this MSA or (ii) referenced on an Order that incorporates this MSA.
   “Subject Property” means the building, structure, location, or premises in respect of which an InMapz Space is created.
   “Support” means the technical support services (including email, phone and map updates) made available by InMapz to Customer and used in accordance with the Agreement.
   “Trade Secrets” means source code, code, Software algorithms, specifications, models, formulas, samples, patterns, designs, plans, know-how, processes, questionnaires, methodologies, business methods, drawings, documents, innovations, technical information, data, business operations, current and prospective customer lists, financial information and projections, marketing and advertising plans, fee and pricing information, cost of services and materials and personnel information.
   “Usage Data” means Aggregated and/or Anonymized Data collected by InMapz through and relating to Customer’s (and Authorized Users’) use of the Solution.
2. LICENSE GRANT AND RESTRICTIONS.
   (a) Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, InMapz grants to Customer and its Affiliates a limited, non-sublicensable, non-transferable, non-exclusive, revocable right to access and use the Solution and Documentation for Customer’s and its Affiliates’ internal business purposes during the subscription term stated in the applicable Order. Customer will not be provided with and shall have no right to any Software, and InMapz reserves the right to suspend access to the Solution for scheduled maintenance or emergency maintenance. Customer shall be responsible for Authorized Users’ compliance with the Agreement.
   (b) Customer and its Affiliates and Authorized Users shall not directly or indirectly, in full or in part: (1) provide or otherwise allow access to the Solution, any Customer Content (including Customer Image Data) stored on the Solution, InMapz Technology, Support, Professional Services, Documentation or any other InMapz Offerings to any third party (except Authorized Users) or otherwise permit a third party (except Authorized Users) to use or benefit from the Solution, any Customer Content (including Customer Image Data) stored on the Solution, InMapz Technology, Support, Professional Services, Documentation or other InMapz Offerings; (2) reverse engineer, decipher, decompile, disassemble, reconstruct, translate, otherwise attempt to discover, copy or modify the Solution, any other InMapz Offerings or any other InMapz Confidential Information, trade secrets, formulas, methodologies, processes or models, source code, Software, or underlying technical information; (3) use the Solution, any other InMapz Offerings or any other InMapz Confidential Information, trade secrets, formulas, methodologies, processes or models to provide services to third parties (e.g., as a service bureau) or distribute, sell, license, sublicense, rent, loan, lease, assign, or transfer the Solution or any other InMapz Confidential Information to a third party; (4) use the Solution, any other InMapz Offerings, or any other InMapz Confidential Information for any benchmarking purpose or in connection with the development of any Software, technology, Intellectual Property Rights, product, service, subscription or other offering that is competitive with, or derivative of, the Solution or any other InMapz Offerings or InMapz Confidential Information; (5) use or export the Solution, any other InMapz Offerings, or any other InMapz Confidential Information: (i) in breach of any applicable laws, regulations, embargoes, restrictive measures or the Documentation; or (ii) to any country for which the United States or any other government, at the time of export requires an export license or other governmental approval, without first obtaining such license or approval; (6) access, store, or transmit any Customer Content, Software, viruses, spam, malware, data or any other material that is unlawful, abusive, obscene, or harmful; (7) input any personally identifiable information or other personal data in the Solution; or (8) use the Solution, any other InMapz Offerings, or any other InMapz Confidential Information: (i) to try to gain unauthorized access to any service, device, data, account or network or (ii) in a manner that infringes any Intellectual Property Rights. InMapz shall not be responsible for Customer’s or any of its Affiliates’ or Authorized Users’ use of third party Software or systems accessed from or in connection with the Solution, InMapz Technology, Support, Professional Services, Documentation or other InMapz Offerings.
   (c) Except to the extent caused by a breach of the Agreement by InMapz, Customer shall be solely responsible for (1) all activity occurring under Customer’s and its Affiliates’ user accounts; and (2) Customer Content including the accuracy and completeness of Customer Content and for the location of equipment on maps and specification-related information regarding any equipment (e.g., manufacturer name, model numbers, etc.) and shall defend, indemnify and hold harmless InMapz, its Affiliates and their respective Representatives (“InMapz Indemnified Parties”) for, from and against any all claims, losses, damages, liabilities, costs, suits, actions, proceedings (“Third Party Claims”) all damages, losses, liabilities, judgments, fines, costs and expenses (including attorney’s fees) (“Losses”) in connection with, resulting from, arising out of or relating to: (i) Customer Content including any Third Party Claims that any Customer Content or other data, material or content provided, submitted or otherwise made available provided by Customer, any of its Affiliates or any Authorized User to InMapz (including in connection with, resulting from, arising out of or related to Customer’s or any of its Affiliates’ or Authorized Users’ access to or use of the Solution, Professional Services or other InMapz Offerings) violates, infringes or misappropriates any third party right, including any Intellectual Property Rights or privacy or publicity rights and (ii) Customer’s (or any of its Affiliate’s or Authorized User’s) violation of this MSA or the Agreement, fraud, gross negligence or willful misconduct. Customer shall not directly or indirectly settle any Third Party Claims unless such settlement irrevocably, completely and forever releases the InMapz Indemnified Parties from any and all liability with respect to such Third Party Claims or unless InMapz consents to such settlement in writing in advance. Customer shall maintain the copyright notices that appear on any materials relating to the Solution, InMapz Technology, Support, Professional Services, Documentation or other InMapz Offerings.
   (d) Responsibility for Customer Image Data. Customer is solely responsible for the development, content, operation, maintenance, accuracy, legality, integrity and use of Customer Image Data and shall ensure that Customer Image Data does not comprise or otherwise include: (1) any content, data or material which Customer does not own or otherwise have an appropriate license, consent, approval or permission in respect of; (2) any content, data or material that is or is otherwise reasonably considered by InMapz in its sole discretion to be harmful, threatening, unlawful, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable; or (3) any content, data or material that infringes or misappropriates any third party right (including Intellectual Property Rights) or is invasive of any privacy or publicity right. Customer shall obtain in advance all licenses, consents, approvals, and permissions necessary to capture and use images of any Subject Property or Equipment. InMapz shall have the right (but not the obligation) in its sole discretion and at any time to remove from the Solution any Customer Image Data that violates this MSA, the Agreement, the Documentation, or that is otherwise objectionable. 
   (e) Customer agrees that neither Customer nor any Authorized User shall intentionally upload any Customer Personal Data to the Solution, and Customer shall minimize the risk of capture (whether intentional or unintentional) of Customer Personal Data by the Solution. Without prejudice to the foregoing, in the event that any Customer Personal Data is captured in or is otherwise included with or evident from Customer Image Data, Customer shall ensure that it has obtained (or are otherwise in possession of) all necessary rights, permission or consents necessary to enable the upload of such Customer Image Data to the Solution.
   (f) If Customer purchases Professional Services, subscriptions to the Solution or other InMapz Offerings from an Authorized Reseller pursuant to an Order between Customer and the Authorized Reseller: (1) all references to an Order in this MSA shall mean the applicable Order between Customer and the Authorized Reseller; (2) Section 3 (Fees and Payment) is superseded by the terms set forth in the applicable Order between Customer and the Authorized Reseller, and fees set forth in such Order shall be paid directly to the Authorized Reseller, as applicable; (3) InMapz shall provide all credits or refunds owed by InMapz to the Authorized Reseller and not to Customer, and Customer shall look to the Authorized Reseller for such credits and refunds; (4) InMapz shall have no responsibility or liability with respect to any failure by the Authorized Reseller to issue credits or refunds to Customer. Notwithstanding anything to the contrary, unless InMapz provides signed written authorization to Customer in advance, no additional terms in any Order between Customer and an Authorized Reseller shall be binding on InMapz, and this MSA shall prevail in the event of any conflict between this MSA and any Order between Customer and an Authorized Reseller. 
   (g) Customer acknowledges that, if Customer purchases Professional Services, subscriptions to the Solution, or other InMapz Offerings from an Authorized Reseller, in order to permit InMapz to provision any such InMapz Offerings, such Authorized Reseller may share Customer Personal Data with InMapz, or InMapz may share Customer Personal Data with such Authorized Reseller.  Customer hereby expressly consents to such disclosure and use of Customer Personal Data.
3. FEES AND PAYMENT.
   Customer shall pay InMapz the Fees within thirty (30) days from the invoice date without offset or deduction. All payment obligations are non-cancelable and all amounts paid are non-refundable (except as expressly stated otherwise herein). All payments shall be made in US dollars in full and cleared funds without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law) within thirty (30) days after the applicable invoice date (“Payment Due Date”). All sums payable under the Agreement are exclusive of sales or other taxes, which Customer shall be responsible for. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, excluding taxes imposed on InMapz’s income. If payment has not occurred by the Payment Due Date, then without limiting any other right or remedy available to InMapz, a late fee (“Late Fee”) of 1.5% per month of the invoice amount shall apply. Prior to charging Late Fees, InMapz will contact Customer regarding the delinquency and verify receipt of the applicable invoice. Customer shall provide InMapz with complete and accurate billing and contact information.
4. LIMITED WARRANTY AND DISCLAIMERS.
   (a) InMapz warrants that (1) the Solution will substantially perform the functions set forth in the specifications, (2) Professional Services shall be provided in a workmanlike and professional manner pursuant to any applicable SOW, and (3) it shall use commercially reasonable measures to prevent viruses from being released in the Solution. If Customer notifies InMapz in writing of any failure in the Solution or Professional Services to materially conform to the warranties outlined above, InMapz shall, at its option and expense: (i) repair, (ii) replace or reperform, or (iii) if unable to repair, replace or reperform, terminate the Agreement or the applicable portion of the Order or SOW with respect to the non-conforming Solution or Professional Services, and issue a pro rata refund of the Fees paid for the terminated portion of the Solution or Professional Services. These remedies shall be conditioned on Customer providing information necessary to assist InMapz in resolving the nonconformance including a documented example of any nonconformance or sufficient information to enable InMapz to re-create the nonconformance. This Section 4(a) shall be Customer’s sole and exclusive remedy under the warranties.
   (b) TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS MSA, INMAPZ: (A) PROVIDES THE PROFESSIONAL SERVICES, SOLUTION, OTHER INMAPZ OFFERINGS AND CONFIDENTIAL INFORMATION SOLELY ON AN “AS IS”, “WHERE IS“ AND “AS AVAILABLE” BASIS AND MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED IN FACT OR BY OPERATION OF LAW, OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (B) DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE; AND (C) DOES NOT WARRANT THAT THE SOLUTION, PROFESSIONAL SERVICES, OR OTHER INMAPZ OFFERINGS ARE OR WILL BE ERROR-FREE OR MEET CUSTOMER’S OR ITS AFFILIATES’ OR AUTHORIZED USERS’ REQUIREMENTS. CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF INMAPZ TO ANY THIRD PARTY.
   (c) Neither InMapz nor any of its Representatives shall be responsible for any delays, delivery failures, or other loss or damage resulting from the transfer of data over the Internet or other communications networks and facilities which are not directly controlled by InMapz. Customer agrees that the Solution, Professional Services and other InMapz Offerings may be subject to problems inherent in the use of such communications networks and facilities.
   (d) High-Risk Disclaimer. The Solution, Professional Services, and other InMapz Offerings are not fault-tolerant and are not designed or intended for use in any environment requiring fail-safe performance including any application in which the failure of the Solution, Professional Services, or other InMapz Offerings could lead to death, personal injury, or physical or property damage (collectively, “High-Risk Activities”). INMAPZ SHALL NOT BE LIABLE FOR USE OF THE Solution, Professional Services, OR ANY OTHER INMAPZ OFFERINGS IN ANY ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE OR FOR HIGH-RISK ACTIVITIES REQUIRING FAIL-SAFE PERFORMANCE IN WHICH THE FAILURE OR MALFUNCTION OF THE Solution, Professional Services OR ANY OTHER INMAPZ OFFERINGS COULD LEAD  TO DEATH, PERSONAL INJURY OR  PHYSICAL OR PROPERTY DAMAGE. ANY SUCH USE OF THE Solution, Professional Services, OR ANY OTHER INMAPZ OFFERINGS IS SOLELY AT CUSTOMER’S OWN RISK EVEN IF INMAPZ KNOWS OF SUCH USE. INMAPZ EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR ANY AND ALL HIGH-RISK ACTIVITIES.
5. CONFIDENTIALITY.
   “Confidential Information” means business information of a confidential or proprietary nature including Trade Secrets and other information of commercial value including pricing, Software, and underlying technical or business information or data which relates to the Discloser that is disclosed or provided to Recipient by or on behalf of Discloser pursuant to the Agreement (or potential future purchases or other business subject to the Agreement), provided, however, that Confidential Information shall not include information that (1) is or becomes a part of the public domain through no act or omission of the Recipient; (2) was in the Recipient’s lawful possession prior to the disclosure and had not been obtained by the Recipient either directly or indirectly from the Discloser; (3) is lawfully disclosed to the Recipient by a third party without restriction on disclosure, any existing non-use or confidentiality obligation or breach of this Agreement; (4) is independently developed by the Recipient without use of or reference to any of the Discloser’s Confidential Information and without violating any of Recipient’s obligations under this Agreement. A Party or its Affiliates may receive (“Recipient”) Confidential Information of the other Party or its Affiliates (“Discloser”) and the Recipient shall keep all such Confidential Information confidential and protect it by using the highest degree of care that the Recipient utilizes to protect its own Confidential Information of a similar nature, which shall be no less than a commercially reasonable degree of care. The Recipient shall not disclose Confidential Information to any person or entity other than Customer’s Authorized Users (or InMapz or its Representatives) who have a need to know such Confidential Information provided that the Recipient remains responsible for the confidentiality and non-use of the information pursuant to this Section 5. Neither Party shall use Confidential Information for any purpose other than as necessary to exercise rights or fulfill obligations under the Agreement. Without limiting the foregoing, either Party may disclose Confidential Information to a government authority if that disclosure is: (a) required by law or (b) necessary to exercise its rights or perform its obligations hereunder. This Section shall apply during the Term of this Agreement and for three (3) years after the Agreement’s termination, provided that, with respect to Confidential Information that is a Trade Secret, such rights and obligations will survive such termination perpetually until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of the Recipient or its Representatives provided that no termination shall relieve either Party from a prior breach.
6. INTELLECTUAL PROPERTY.
   (a) InMapz or its third party licensors own all Intellectual Property Rights embodied in the Solution, InMapz Technology, Documentation, Support and/or any Professional Services provided by InMapz under the Agreement including all modifications or derivatives thereof. No rights are granted to Customer other than as expressly set forth in the Agreement. InMapz does not convey any Intellectual Property Rights other than those expressly provided herein.
   (b) InMapz shall be the sole owner of any newly-developed Intellectual Property Rights related in any way to the Solution or Software, Documentation, Support, Professional Services and other InMapz Offerings. The Customer hereby irrevocably assigns to InMapz any of these newly-developed Intellectual Property Rights that result from Customer’s requests, feedback, or ideas (“Feedback”), regardless of whether such newly-developed Intellectual Property Rights result from Solution, Professional Services or other InMapz Offerings-related services or other InMapz Offerings paid for by Customer. If InMapz creates custom templates for Customer in connection with Professional Services performed under the Agreement, Customer may not retain copies of such templates after any termination of the Agreement. Nothing contained in the Agreement shall prevent InMapz from independently developing, creating, modifying, selling, offering, licensing, distributing, or otherwise using or making available its or its Affiliates’ own Software, tools, technology, Intellectual Property Rights, services, products, subscriptions, offerings, data, material or other content.
   (c) Customer Content shall remain the property of Customer or its licensors. To the extent materials developed by InMapz in connection with the Agreement contain any Customer Content, InMapz shall not own the Customer Content therein, and InMapz shall have no right to use any part of Customer Content (except for Feedback, pursuant to Section 6(b)). Customer hereby grants to InMapz a non-exclusive, worldwide, irrevocable, sublicenseable (through multiple tiers), transferable, royalty-free, fully paid-up right and license to Customer Content: (i) during the Term to host, store, transmit, reproduce, distribute, modify, process, distribute, and otherwise use and display the Customer Content and perform all acts with respect to the Customer Content as may be necessary for InMapz to provide the Solution, InMapz Technology, Professional Services, Documentation or Support and (ii) during the Term and thereafter to create InMapz Data. Customer will ensure that Custom— Content –and InMapz’s and Customer’s and any of its Affiliates’ and/or Authorized User’s use of Customer Content– will not violate any terms referenced in or incorporated into this Agreement or any applicable law.
   (d) InMapz Data. Customer acknowledges and agrees that InMapz may during the Term monitor Customer’s use of the InMapz Solution or InMapz Software to create Usage Data and develop Learning & Process Improvement Data, and Aggregated and/or Anonymized Data. Customer further acknowledges and agrees that InMapz may during and after the Term of this Agreement:
   (a) make InMapz Data publicly available in compliance with applicable law and use InMapz Data to the extent and in any manner permitted under applicable law (it being acknowledged that InMapz Data does not identify Customer, the Subject Property or Customer’s Confidential Information);
   (b) aggregate InMapz Data obtained in connection with the Agreement with data or information of InMapz (whether obtained by or on behalf of InMapz from other InMapz customers or from any third party) and use such aggregated data to the extent and in any manner permitted by applicable law; and
   (c) use InMapz Data to create, develop, train, analyze, improve, enhance, make derivative works of, support, deploy and otherwise use AI data sets, AI models, ML algorithms and the Solution, InMapz Technology, Support, Professional Services, Documentation or other InMapz Offerings (including certain features or functionality of the foregoing and any part thereof including any Software) and otherwise for any business purpose including providing or improving the Solution, Professional Services and other InMapz Offerings and to develop new or different services, subscriptions, products, Software, technology, Intellectual Property Rights or other offerings.
7. AUDITS.
   InMapz may conduct periodic remote audits for the sole purposes of verifying Customer’s (and its Authorized Users’ and Affiliates’) use of the Solution in compliance with the Agreement.
8. CUSTOMER DATA BACKUP RESPONSIBILITIES.
   Neither the Solution, InMapz Technology, Support, Documentation, Professional Services nor other InMapz Offerings replace the need for Customer to maintain regular data backups or redundant data archives and software and IT system disaster recovery processes and procedures. NEITHER INMAPZ NOR ANY OF ITS AFFILIATES OR THEIR REPRESENTATIVES HAVE ANY OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER CONTENT AND ALL OTHER CUSTOMER DATA, SOFTWARE, IT SYSTEMS OR MATERIAL.
9. INDEMNIFICATION.
   (a) InMapz agrees to defend Customer and its Affiliates ( “Customer Indemnitees”) against any third party claim that Customer Indemnitee’s use of the Solution, as made available by InMapz to Customer and used in accordance with the Agreement and the Documentation, directly infringes a third party’s Intellectual Property Rights (an “Infringement Claim”), and indemnify Customer Indemnitees from the resulting costs and damages finally awarded against Customer Indemnitees to such third party by a court of competent jurisdiction or agreed to by InMapz in a final, binding settlement provided that: (1) Customer Indemnitees promptly notify InMapz in writing of the Infringement Claim; (2) InMapz has sole control of the defense and all related settlement negotiations; (3) Customer Indemnitees provide InMapz with the information, assistance and authority to enable InMapz to perform its obligations under this Section 9; and (4) Customer Indemnitees make no admission of liability and do not compromise the ability of InMapz to defend the claim. Customer Indemnitees may not settle or compromise any Infringement Claim without the prior written consent of InMapz in its sole discretion.
   (b) In any action based on an Infringement Claim, InMapz, at its sole option and expense, shall either: (1) procure the right for Customer to continue using the Solution in accordance with the Agreement; (2) make modifications to or replace the Solution so that the infringing Solution becomes non-infringing without incurring a material diminution in performance or function; or (3) terminate the right to use the infringing Solution and refund to Customer the unused portion of any Solution subscription fees prepaid by Customer and received by InMapz for such infringing Solution. Neither InMapz nor any of its Representatives or Affiliates shall have any liability or obligations for an Infringement Claim pursuant to this Section 9 to the extent that it results from: (i) modifications to the Solution made by a party other than InMapz or a party under the direct control of InMapz; (ii) the combination, operation or use of the Solution with non-InMapz software, products or materials; (iii) use of the Solution outside the scope of the Agreement; (iv) InMapz’s use of any Customer Content, designs, instructions, specifications, or the like, provided, requested or directed by Customer Indemnitees, if any; or (v) use of third party Software or, technology not embedded by InMapz into the Solution. This Section 9 states Customer Indemnitees’ sole and exclusive remedies and InMapz’s and its Representatives’ and Affiliates’ entire liability with respect to claims subject to indemnification under this Section, including claims for infringement or violation of third party Intellectual Property Rights by the Solution or any other InMapz Offerings.
10. LIMITATION OF LIABILITY AND DAMAGES.
    (a) EACH PARTY’S TOTAL AGGREGATE LIABILITY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, STRICT LIABILITY OR OTHER THEORY, WITH RESPECT TO ALL SUBJECT MATTER RELATING TO THE AGREEMENT SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO INMAPZ OR AN AUTHORIZED RESELLER UNDER THE AGREEMENT IN THE TWELVE MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO A CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THIS LIMIT.
    (b) UNDER NO CIRCUMSTANCES, AND REGARDLESS OF THE NATURE OF THE CLAIM, SHALL EITHER PARTY (OR THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES) BE LIABLE FOR ANY: (1) INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES; (2) LOSS OF REVENUES, SALES OR BUSINESS; (3) LOSS OF PROFITS; (4) LOSS, CORRUPTION OR INACCURACY OF DATA, SOFTWARE, IT SYSTEMS OR INFORMATION OR WORK STOPPAGE; OR (5) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING IN CONNECTION WITH THE AGREEMENT, IN EACH CASE, REGARDLESS OF THE FORM OF ACTION (AND WHETHER (2) THROUGH (5) ARE DIRECT, INDIRECT, INCIDENTAL,CONSEQUENTIAL, COVER, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES), WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, STRICT LIABILITY OR OTHER THEORY EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES.
11. TERM; TERMINATION; SUSPENSION.
    (a) The Agreement shall continue for a period of twelve (12) months (“Initial Term”) or such other period indicated on the Order. Each Order shall automatically renew for an additional twelve (12) month term (each, a “Renewal Term,” together with the Initial Term, the “Term”) on InMapz’s then-current pricing and terms and conditions unless either Party provides notice of its intent not to renew at least thirty (30) days in advance of the end of the Initial Term or current Renewal Term. Any notice provided under this Section may be accomplished via email or electronically submitted invoice or notice.
    (b) Without affecting any other right or remedy available to it, either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if the other Party breaches a material obligation under the Agreement that has not been cured (if curable) within thirty (30) days of the effective date of such written notice requiring the remedy of such breach or if either Party (1) becomes insolvent; (2) elects to dissolve and wind-up its business; (3) makes a general assignment for the benefit of creditors; or (4) petitions for or appoints (or a third party causes to be appointed for itself) a receiver, custodian or trustee to take possession of all or substantially all of that Party’s property. The Agreement will also terminate automatically upon the termination of all Orders unless automatically renewed pursuant to Section 11(a).
    (c) Upon termination of the Agreement by any means, the rights granted under Section 2 will terminate and (1) Customer shall promptly, permanently destroy any and all InMapz Confidential Information, and, upon InMapz’s request, have an officer of Customer confirm the same in writing; (2) Customer may export a copy of the Customer Content (stored in the Solution at the time of termination) in a structured, commonly used and machine-readable format within thirty (30) days after such expiration or termination and InMapz may delete all Customer Content remaining in the Solution after such time has passed; (3) InMapz shall promptly destroy any and all Customer Confidential Information and an officer of InMapz shall confirm the same to Customer in writing on Customer’s request; otherwise, the terms of the Agreement will remain in effect with respect to such Confidential Information; and (4) InMapz will remove access to the Solution and any other InMapz Technology.
    (d) Without limiting the foregoing, InMapz may upon ten (10) days’ prior written notice (except in the event of an emergency under subsection (2) below) suspend or limit Customer’s access to or use of the Solution without liability if (1) Customer’s account is past due, or (2) Customer’s use of the Solution breaches Section 2 or impairs performance of the Solution or InMapz systems or use of the Solution by other InMapz customers provided that InMapz will promptly end such suspension when Customer cures the foregoing (without prejudice to InMapz’s other remedies in respect of the applicable breach).
    (e) Termination of the Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.
    (f) Sections 1, 2(b), 2(c), 3, 4(b), 5, 6, 8, 10, 11, 12, 13, 16, and 17 will survive the termination of the Agreement.
12. NOTICE.
    All notices under the Agreement shall be deemed properly given and effective (a) when personally delivered; (b) when deposited in the United States certified mail, registered mail, postage prepaid or return receipt requested; or (c) when deposited with an internationally recognized overnight delivery service with all fees and charges prepaid and addressed in each such case as set out in the applicable Order. When any notice under the Agreement is sent to InMapz, a copy shall be sent to Legal@InMapz.com.
13. GOVERNING LAW; VENUE; SEVERABILITY.
    (a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of California without regard for conflict of laws principles. Any legal claim, suit, action, dispute or proceeding (“Action”) arising out of or related to this Agreement or the rights granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in Irvine, CA, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any Action. In any Action to enforce the Agreement, the prevailing Party will be entitled to reasonable costs and attorneys’ fees actually incurred. No Action may be brought by either Party against the other Party arising in any way out of the Agreement after one (1) year from the date on which the cause of action arose (and regardless of the nature of the claim or form of action) provided, however, the foregoing limitation shall not apply to any Action related to the infringement of a Party’s Intellectual Property Rights.
    (b) The Agreement and all related documents shall be in the English language and all Actions arising under the Agreement shall be conducted and resolved in the English language.
14. NONASSIGNABILITY.
    Except for either Party’s right to assign this Agreement in the event of a merger, acquisition, or other change of control transaction upon prior written notice to the other Party, neither the rights nor the obligations arising under the Agreement are assignable or transferable by either Party without the other Party’s prior written consent (which consent will not be unreasonably withheld), and any such attempted assignment or transfer shall be void and without effect.
15. PUBLICITY.
    Customer consents to InMapz’s use of Customer’s name and logo for public identification as a customer in InMapz’s customer lists, websites, marketing materials and press releases (“Marketing Collateral”). Upon request, Customer consents to participating in a case study regarding its experiences with InMapz’s Solution, InMapz Technology, Support Professional Services and/or other InMapz Offerings (“Case Study”) and inclusion of and reference to the Case Study in Marketing Collateral.
16. ENTIRE AGREEMENT; MODIFICATIONS; WAIVERS; SEVERABILITY; CONSTRUCTION; THIRD PARTY RIGHTS.
    (a) The Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and the Solution, InMapz Technology, Support, Professional Services, Documentation and other InMapz Offerings and supersedes all prior or contemporaneous proposals, communications and understandings, oral or written (including any confidentiality agreements) relating to that subject matter.
    (b) Except as expressly provided in the Agreement, any amendments or modifications of the Agreement must be in writing and signed by duly authorized representatives of both Parties.
    (c) Any waiver of any provision of the Agreement must be in writing and shall not be deemed a waiver of any other provision. Waiver by a Party of a breach of any provision of the Agreement by the other Party will not operate as a waiver of any other or subsequent breach by such breaching Party.
    (d) Each provision of the Agreement shall be considered severable such that if any provision conflicts with any existing or future law, or is held to be illegal, unenforceable or invalid by a court, the other provisions of the Agreement shall be limited or modified to the minimum extent necessary to make it valid, legal, and enforceable and so that the Agreement shall otherwise remain in effect.
    (e) For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation” and (b) the word “or” is not exclusive. Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty that is not set out in the Agreement. If there is any conflict or inconsistency between this MSA and any Order, the Order shall prevail to the extent of any such conflict or inconsistency (excluding any Order between Customer and an Authorized Reseller, which shall be subject to the provisions of Section 2(f) of this MSA). Any additional or different terms or conditions proposed by Customer are hereby expressly excluded.
    (f) The Agreement does not confer any right or benefit on any person who is not a Party to it and no one other than a Party to the Agreement, their successors and permitted assignees shall have any right to enforce any of the terms of the Agreement.
17. GENERAL.
    (a) Each Party shall be responsible for its own compliance with applicable laws. Customer shall be responsible for ensuring that any information provided to InMapz including in connection with the Professional Services or Support is accurate and complete.
    (b) A delay by either Party in performing its obligations will not be a breach of the Agreement if caused by fire, flood, pandemic, act of God or other event beyond the reasonable control of such Party. The affected Party will notify the other Party of such event and resume performance as soon as possible.
    (c) The Agreement may be executed in any number of counterparts, each of which is an original, but all the counterparts together shall constitute the same document. Delivery of an executed counterpart of a signature page to the Agreement by e-mail or other electronically delivered signatures of the Parties shall be as effective as delivery of an original, manually executed counterpart of the Agreement.
    (d) The Parties are independent contractors. Nothing in the Agreement is intended to create a joint venture, partnership, agency or employment relationship between the Parties.