CROWDOPTIC LICENSE AGREEMENT

Version Date: September 28, 2020

This License Agreement (“Agreement”) applies to software licensed to you by KBA2 Inc. DBA CrowdOptic (“CrowdOptic”) for use in connection with CrowdOptic’s hardware products and certain third-party hardware products supported by the software (“Software”). Please read this Agreement carefully before using the Software. If you are accepting these terms on behalf of another person, company, or other legal entity, you represent and warrant that you have full authority to bind that person, company, or legal entity to the terms of this Agreement. By downloading, installing, copying, accessing, or using the Software, you agree to the terms of this Agreement and any future versions of this Agreement as may be posted from time to time on CrowdOptic’s web site at www.crowdoptic.com. In addition, when using products, software or services owned or operated by CrowdOptic, you agree to be bound by any posted terms, guidelines or rules applicable to such products, software, or services that may be posted on CrowdOptic’s website and modified from time to time. All such guidelines or rules are hereby incorporated by reference into this Agreement.

1. License Grant.

Subject to the terms and conditions of this Agreement, CrowdOptic hereby grants to you a limited, non-exclusive, non-transferable, and non-sublicensable license during the licensing term to use the Software in object code form solely for your own internal use in connection with your use of CrowdOptic’s hardware products and certain third-party hardware products supported by the Software that you separately purchased from CrowdOptic or its authorized distributors. You are not granted any rights to updates and upgrades to the Software unless you have purchased a support and maintenance subscription that includes updates and upgrades separately.

2. Terms of Use.

1. Scope of Use. Your use of the Software may not exceed the licensing term (duration) or the number of computers, devices, users, locations, or other restriction as may be set forth in the applicable pricing page, schedule, invoice, quote, or form that you used to procure the Software.
2. Copies. You may make a single copy of the Software as reasonably necessary for backup, archival or disaster recovery purposes only.
3. Compliance. You will comply with all laws, rules, and regulations applicable to your use of the Software, and you will indemnify CrowdOptic from any claim by a third party arising from your breach of this Agreement or violation of any law, rule or regulation.
4. General Restrictions. You will not obscure, alter, or remove any trademark markings, confidentiality, or proprietary rights notices. You will not, and will not cause or allow any third party to: (i) distribute, copy (except as expressly authorized herein), modify, or create derivative works based on the Software; (ii) reverse engineer (unless required by law for interoperability), disassemble, or decompile the Software; (iii) rent, assign, sublicense, lend, or otherwise transfer or share any of your rights under this Agreement to any third party without CrowdOptic’s express written consent; or (iv) use the Software: (a) to send or store infringing, obscene, threatening, or otherwise unlawful materials; or (b) send or store material containing software viruses, worms, Trojan horses or other harmful computer code. You will be liable to CrowdOptic for any and all losses incurred as the result of unauthorized reproduction, distribution, or use of the Software that occurs while the Software is in your possession or control.

3. Services.

CrowdOptic may provide you with implementation, maintenance, support, or other services related to the Software. The terms of such services shall be agreed to separately by the parties, and CrowdOptic is not obligated to provide any service not expressly agreed to by the parties in writing.

4. Payment Terms.

In exchange for the license granted herein, you agree to pay the amount or amounts set forth in the applicable pricing page, schedule, invoice, quote, or form that you used to procure the Software. You agree to pay all shipping and handling fees, as well as all federal, state or provincial, and local taxes and duties. If you are exempt from certain taxes, you agree to provide CrowdOptic with an appropriate certificate of exemption before CrowdOptic shall agree to waive its collection of such taxes. Unless otherwise specified, the payment terms for all amounts due shall be: (i) payment in advance of delivery; and (ii) in the event of invoicing, payment due upon receipt of invoice. Unpaid amounts may be subject to interest at the lesser of one and one-half percent (1.5%) per month or the maximum permitted by law. If you become past due on any amount, CrowdOptic may, in its sole discretion, suspend its obligations and your license hereunder without penalty until payments for all amounts past due and applicable interest have been received by CrowdOptic.

5. Termination.

Your license to use the Software shall automatically terminate at the end of the licensing term as set forth in the applicable pricing page, schedule, invoice, quote, or form that you used to procure the Software. Without prejudice to your payment obligations, you may terminate your license at any time by uninstalling the Software. CrowdOptic may terminate your license: (i) in the event that you materially breach the terms of this Agreement and you fail to cure such breach within ten (10) days of receiving notice of such breach; or (ii) without cause with at least thirty (30) days advance written notice to you. Upon termination: (i) all rights granted to you for the Software under this Agreement will terminate; and (ii) you will discontinue using the Software and return to CrowdOptic or certify destruction of all copies of the Software in your possession or control.

6. Proprietary Rights.

The Software is protected under the copyright and other laws of the United States and the individual states and in other countries by international treaty provisions. You acknowledge that CrowdOptic owns all worldwide right, title, and interest in and to the Software, documentation, and any promotional, demonstration, or training materials provided to you, including all intellectual property rights in all of the foregoing (collectively, "Intellectual Property"). Except for the limited license granted under this Agreement, nothing herein grants you any right, title or interest in the Software or such Intellectual Property. You acknowledge that all of CrowdOptic’s trademarks, trade names, service marks and other CrowdOptic logos and brand features, and product and service names are the trademarks and property of CrowdOptic. You may not display or use such trademarks or property in any manner without CrowdOptic’s prior written consent. You acknowledge that CrowdOptic is free to retain, use and incorporate any and all written or oral ideas, suggestions or recommendations that you provide relating to the Software, CrowdOptic’s documentation or CrowdOptic’s Confidential Information (“Feedback”), without payment, attribution or other consideration and CrowdOptic will not be liable for any use or disclosure of any Feedback. You hereby grant CrowdOptic a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, sublicensable and transferable license to use any Feedback.

7. Permission to Use Name and Logo.

You hereby grant CrowdOptic permission to use your name and logo on CrowdOptic’s web site and other marketing materials for promotional purposes only.

8. Confidentiality.

1. Definitions. “Disclosing Party” and “Recipient” refer respectively to the party that discloses information, and the party to which information is disclosed in a given exchange. Either CrowdOptic or you may be deemed Disclosing Party or Recipient depending on the circumstances of a particular communication or transfer of information. “Confidential Information” means all nonpublic information, trade secrets and know how, whether in oral, written, electronic or other form, that the Disclosing Party designates as being confidential or which information has a reasonable basis for being presumed confidential, and includes, without limitation, information relating to the Software, data, proprietary data compilations, source codes, compiled or object codes, algorithms, scripted programming statements, byte codes, data codes, entity-relation or workflow diagrams, financial records or information, client records or information, organizational or personnel information, processes, research, engineering, product plans, business plans and works-in-progress, even where such works, when completed, would not necessarily comprise Confidential Information. "Confidential Information" does not include: (i) information that Recipient can demonstrate was in Recipient’s possession prior to disclosure by Disclosing Party; (ii) information that is available to Recipient from a third party without violation of this Agreement or Disclosing Party’s intellectual property rights; or (iii) information that is in the public domain at the time of disclosure by Disclosing Party or that enters the public domain from a source other than Recipient after disclosure by Disclosing Party.
2. Nondisclosure and Limited Use. Recipient will hold the Confidential Information of the Disclosing Party in confidence, using the same degree of care that it uses to protect its own information of similar importance, but will in any case use no less than a reasonable degree of care to protect such Confidential Information. Recipient will not directly or indirectly disclose the Confidential Information of the Disclosing Party or any part thereof to any third party without Disclosing Party’s advance express written authorization to do so. Recipient shall not use any Confidential Information of the Disclosing Party for any purpose except to the extent necessary to perform its obligations or exercise its rights under this Agreement. Recipient may disclose Confidential Information of the Disclosing Party only to its employees or end-users under its control and direction in the normal course of its business and only on a need-to-know basis. Recipient will have entered into a written agreement with confidentiality terms consistent with this Agreement and will advise any such employees and end-users that the Confidential Information of the Disclosing Party is confidential and that by receiving such information such employees and end-users are agreeing to be bound by the terms of this Section, and to not disclose or use such information for any purpose other than as authorized herein. You will be fully responsible and liable for any breach of this Agreement, including of the confidentiality provisions in this Section 8, by your employees or end-users. In responding to a request for Confidential Information, Recipient will cooperate with Disclosing Party, in a timely fashion and in a manner not inconsistent with applicable laws, to protect the Confidential Information to the fullest extent possible.
3. Exceptions. A disclosure of Confidential Information of the Disclosing Party that is in response to a valid order by a court or other governmental body or otherwise required by law will not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided however, that the Recipient disclosing such information will provide prompt written notice thereof to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.

9. Limited Warranty and Disclaimer.

CrowdOptic warrants that, for a period of ninety (90) days from the date of delivery, the Software, when properly adapted, installed and used, will operate substantially as described in its specifications. Third-party applications that utilize or rely upon the Software may be adversely affected by remedial or other actions performed pursuant to this Agreement, and CrowdOptic bears no liability for and has no obligation to remedy such effects.

EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, CROWDOPTIC MAKES NO AND HEREBY EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, OR ANY SERVICES OR DELIVERABLES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING FROM COURSE OF DEALING OR TRADE USAGE. CROWDOPTIC DOES NOT GUARANTEE THAT THE SOFTWARE WILL PERFORM ERROR-FREE OR UNINTERRUPTED OR THAT CROWDOPTIC WILL CORRECT ALL SOFTWARE ERRORS. WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN, AND NOTWITHSTANDING ANYTHING ELSE SET FORTH IN THIS AGREEMENT OR OTHERWISE, CROWDOPTIC MAKES NO AND HEREBY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY WHATSOEVER WITH REGARD TO ANY THIRD PARTY PRODUCT OR SERVICE AND CROWDOPTIC DOES NOT ASSUME ANY LEGAL LIABILITY OR RESPONSIBILITY FOR SUCH THIRD PARTY OR SERVICE. FOR ANY BREACH OF ANY EXPRESS REPRESENTATION OR WARRANTY UNDER THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY, AND CROWDOPTIC’S ENTIRE OBLIGATION AND LIABILITY, WILL BE FOR CROWDOPTIC TO USE COMMERCIALLY REASONABLE EFFORTS TO CORRECT THE SOFTWARE ERRORS THAT CAUSE BREACH OF SUCH REPRESENTATION OR WARRANTY, OR IF CROWDOPTIC CANNOT SUBSTANTIALLY CORRECT SUCH BREACH OF THE WARRANTY IN A COMMERCIALLY REASONABLE MANNER, YOU MAY TERMINATE THE LICENSE FOR THE AFFECTED SOFTWARE AND RECOVER THE PRO-RATED PORTION OF THE FEES PAID TO CROWDOPTIC FOR THE LICENSE FOR SUCH SOFTWARE.

10. Intellectual Property Indemnity.

CrowdOptic will defend you and pay the costs of such defense and pay any judgment finally awarded to a third party by a court of competent jurisdiction or settlements entered into with a third party for any claim by a third party alleging that your use of the Software as and in the form provided by CrowdOptic to you and as authorized under this Agreement infringes on any third party intellectual property rights, provided that you promptly notify CrowdOptic of the claim in writing, CrowdOptic has sole control of the defense and any settlement negotiations, and you give CrowdOptic the information, authority and assistance CrowdOptic needs to defend against or settle the claim. CrowdOptic has no obligation or liability for any claim based on a modified version of the Software, the use, combination or operation of the Software with any product, data, or apparatus not provided by CrowdOptic, your failure to promptly install an update or upgrade, or your use of a superseded or altered release of the Software. In the event of any actual or threatened infringement claim, CrowdOptic may, at its sole option and expense, secure for you the right to continue using the Software or services, modify the Software or services so that it does not infringe, or if these options are not commercially reasonable as determined by CrowdOptic in its sole discretion, terminate the Agreement and refund to you that pro-rata portion of the fees paid by you applicable thereto.

THE FOREGOING STATES YOUR SOLE AND EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY AND OBLIGATION OF CROWDOPTIC WITH RESPECT TO ANY INTELLECTUAL PROPERTY CLAIMS OR DAMAGES.

11. Limitation of Liability.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT CROWDOPTIC AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL, DATA, OR USE, OR OTHER INTANGIBLE LOSSES (EVEN IF CROWDOPTIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) YOUR USE OR YOUR INABILITY TO USE THE SOFTWARE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY RELATING TO THE SOFTWARE; OR (E) ANY OTHER MATTER RELATING TO THE SOFTWARE OR THIS AGREEMENT. CROWDOPTIC'S MAXIMUM LIABILITY UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING THE AFOREMENTIONED INTELLECTUAL PROPERTY INDEMNITY, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNTS YOU PAID TO CROWDOPTIC UNDER THIS AGREEMENT, AND IF SUCH DAMAGES RESULT FROM USE OF THE SOFTWARE OR SERVICES, SUCH LIABILITY SHALL BE LIMITED TO THE FEES YOU PAID CROWDOPTIC FOR THE DEFICIENT SOFTWARE OR SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) CALENDAR MONTHS IMMEDIATELY PRIOR TO THE EVENTS GIVING RISE TO SUCH LIABILITY.

12. Miscellaneous.

1. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to its principles of conflicts law. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
2. Assignment. Neither party may assign its rights or obligations under this Agreement without the other party's prior written consent, which shall not be unreasonably withheld; provided that either party may, in its sole discretion, assign its rights and obligations hereunder to a successor to the assignor’s business relating to this Agreement pursuant to a merger with a third party or any similar corporate transaction(s) involving the sale of all or substantially all of its stock or assets. This Agreement will be binding on and inure to the benefit of the parties, their successors, and assigns.
3. Export Laws. U.S. export control laws and other applicable export and import laws govern your use of the Software, including technical data. You will not export the Software, directly or indirectly, in violation of these laws or use the Software for any purpose prohibited by these laws.
4. Force Majeure. If either party is delayed in its performance of any obligation under this Agreement due to causes or effects beyond its control resulting from natural disasters, acts of God, war or civil conflict, epidemics, pandemics, governmental restrictions, or failures of third parties, that party will give timely notice to the other party and will act in good faith to resume performance as soon as practicable. If either party is not able to perform within sixty (60) calendar days then this Agreement can be terminated with sufficient notice with the fees adjusted pro rata.
5. Severability and Amendment. If any particular provision of this Agreement is determined to be invalid or unenforceable, that determination will not affect the other provisions of this Agreement, which will be construed in all respects as if the invalid or unenforceable provision were omitted. No extension, modification, waiver or amendment of this Agreement will be effective unless it is described in writing and signed by the parties.
6. Construction. The headings of the Sections are for convenience only and shall not be deemed to affect, qualify, simplify, add to or subtract from the contents of the clauses which they reference. Any singular terms in this Agreement shall be deemed to include the plural, and any plural term the singular, and words denoting either gender shall include both genders as the context requires. Where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning. The words “herein”, “hereof” and “hereunder”, and words of like import used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import. A reference to any legislation or to any provision of any legislation shall include any modification, amendment and reenactment thereof, any legislative provision substituted therefor and all rules, regulations and statutory instruments issued or related to such legislation.
7. Entire Agreement. Provided that the parties have not entered into a separate license agreement, this Agreement and all related addendums hereto constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede any prior verbal or written understandings, communications, agreements, or representations. In the event of any conflict between the terms of this Agreement and any other written agreement between the parties relating to the Software, the terms of the other written Agreement will take precedence unless otherwise stated in such other written Agreement.