SmartDeploy Software License and Services Agreement

THIS IS A LEGAL DOCUMENT — PLEASE READ AND RETAIN FOR YOUR RECORDS

This SmartDeploy Enterprise Software License and Services Agreement together with each Order (collectively, the “Agreement”) is made between the individual or organization specified as the Customer in the Order (“Customer”) and Prowess Consulting LLC doing business as SmartDeploy USA (“SmartDeploy”), each a “Party” and collectively the “Parties,” effective as of the date specified in the Order (“Effective Date”).

Alternatively, you may have been required to accept the terms and conditions of this Agreement in order to access and use the Software and Subscription Services (each as defined below) on a limited period, trial basis, for evaluation purposes. In that event, the terms and conditions specified Exhibit B of this Agreement (the “Evaluation Terms”) will govern your use of the Software and Subscription Services. You represent and warrant that you have the authority to bind your organization to the Evaluation Terms.

WHEREAS, SmartDeploy licenses certain Windows computer operating system management software (the “Software”) and provides related services to customers, and Customer wishes to license SmartDeploy’s software and obtain related services from SmartDeploy, as detailed in one or more Orders executed by SmartDeploy and Customer.

NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises and agreements set forth herein, the receipt and sufficiency of which is hereby acknowledged, the Parties, each intending to be legally bound hereby, do promise and agree as follows:

1. DEFINITIONS
“Administrative Tools” includes but is not limited to the SmartDeploy Console, Build Wizard, Capture Wizard, Media Wizard, Platform Manager, Upload Cloud Package, Create Answer File, Create Media, Generate Client Setup Package, SmartDeploy Command Prompt, and other such tools that are added to the Software from time to time.
“Application Package(s)” means the instructions, code scripts, web links, executable files, and software installation materials downloaded through SmartDeploy or created with the Administrative Tools.
“Client (software)” means the SmartDeploy software installed on Target Computers that allows remote management and monitoring.
“Deployment Package(s)” consists of one or more of the following SmartDeploy-created deployment media, images, Device driver packages (“Platform Packs”), applications (including Application Packages), or any other media created with the Administrative Tools.
“Device” means a virtual or physical single computer, server, or other device on which Customer installs the SmartDeploy Client software, a Deployment Package, or the Administrative Tools.
“Perpetual License” means a perpetual, nonexclusive, nontransferable right to install and use the Software, specifically, the SmartDeploy imaging capability, for the total number of devices specified in the Order. There is no limitation on reimaging within the total number of specified devices.
“Per-Use License” means a limited, nonexclusive, nontransferable right for a one-time use of imaging or reimaging functionality of the Software; each reimaging of the same device constitutes an additional use of the Software that must be specifically licensed as provided in the Order.
“Subscription License” means a limited, nonexclusive, nontransferable right to install and use the Software, specifically, the SmartDeploy imaging and associated PC management capability, for the total number of devices specified in the Order. There is no limitation on reimaging within the total number of specified devices during the term of the subscription.
“Subscription Services” means one or more features and/or hosted services providing Customer with the specific functions identified in the Order.
“Support Services” means the Software support provided to Customer as described in the Order.
“Target Computer” means a virtual or physical single computer, server, or other Device on which a Deployment Package will be used, on which the SmartDeploy Client software is installed, or is otherwise managed by SmartDeploy.
“Technician Computer” means a single computer, server, or other Device on which the Administrative Tools may be installed.
“Usage Data” means all data, content, and information that is deidentified or aggregate administrative data and statistical data, and operational information and data generated by Customer’s use of the Software. The Usage Data will not include any Customer business data, personal data, any personally identifiable information and as aggregated will not identify Customer in any manner as the source of the Usage Data.

2. SOFTWARE LICENSE AND SERVICES
(a) License Grant. Subject to Customer’s compliance with the terms and conditions set forth in this Agreement, SmartDeploy hereby grants Customer a Perpetual License, a Subscription License, a Per-Use License, or access to Subscription Services, as specified in the Order. With respect to Customers with either a Perpetual License, a Subscription License, or a Per-Use License:

i) Using a valid user name and password, Customer may install the Software on Technician Computers to execute administrative tasks for the creation or modification of Deployment Packages intended for Target Computers. Examples of administrative tasks are monitoring Target Computers and creating or modifying deployment media, images, or Device driver packages.

ii) A Target Computer license is required for each machine on which the SmartDeploy Client software is installed or a Deployment Package is used. The total number of Target Computers on which Customer installs the Client or uses Deployment Packages may not exceed the quantity of licenses purchased.

(b) Server Use. A server may be used as a Technician Computer, a Target Computer, to store Deployment Packages, or as a backup for the Software. Other network use is prohibited by any user not licensed to use the Software through a valid license from SmartDeploy.

(c) Usage Data Collection and Use. SmartDeploy may collect, retain, disclose, and use Usage Data. SmartDeploy uses this Usage Data to enable, provide, optimize, and improve the Software and support (including but not limited to Support Services) to its customers. All Usage Data is owned exclusively by SmartDeploy.

(d) Backup and Archival Copies. Perpetual License, Subscription License, and Per-Use License Customers may make backup and archival copies of the Software, provided that all such copies shall bear the original and unmodified copyright, patent, and other intellectual property markings that appear on or in the Software. Customer may not transfer the rights to a backup or archival copy.

(e) Full Version. Customer may not relicense, reproduce, or distribute a full version or other copy of the Software, in whole or part, except with the express written permission of SmartDeploy.

(f) Title. The Software is licensed and not sold. Title to the Software is not transferred to Customer. Ownership of all copies of the Software and of copies made by Customer is vested in SmartDeploy, subject to the rights of use granted to Customer in this Agreement.

(g) Reverse Engineering. Customer may not reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, underlying ideas, underlying user interface techniques, or algorithms of the Software by any means whatsoever, directly or indirectly, or disclose any of the foregoing.

(h) Other Restrictions. Customer may not loan, rent, lease, sublicense, distribute, or transfer all or any portion of the Software to third parties (which shall, for the avoidance of doubt, exclude affiliates of Customer), including through or in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service, except for the limited right to transfer all of the Software to a successor entity as set forth in Section 6 below. Customer may not copy the Software except for backup and archival purposes as expressly set forth above. Customer may not modify, adapt, or translate the Software. Customer may not, directly or indirectly, encumber or suffer to exist any lien or security interest on the Software; knowingly take any action that would cause the Software to be placed in the public domain; or use the Software in any computer environment not specified in this Agreement. Customer may not in any way create, make available, or distribute, either directly or indirectly, any application that would enable others to utilize the tools and features available only to licensed users of the Software, or that would otherwise circumvent the need for any third party to purchase a valid license(s). Customer will comply with applicable law and SmartDeploy’s instructions regarding the use of the Software.

(i) The Software is not intended for use in environments where the failure of the Software could lead to death, personal injury, or severe physical or environmental damage and shall not be used in such environments. Customer is further responsible for the accuracy, quality, and legality of any electronic data, content, and information submitted by Customer in connection with Customer’s use of the Software or characterizing Customer’s business and the means by which Customer acquired such data.

(j) SmartDeploy will provide Customer with the Support Services specified in the Order. Expiration of Support Services will result in reduced or lost functionality as described in the Order.

(k) Good Standing. Customers must remain in Good Standing in order to lawfully use the Software according to the license use rights, services, and support as outlined in this Agreement. Good Standing means being fully paid-up, not exceeding license use rights, and not violating the terms of this Agreement or the support and supplemental services parameters as set forth in the Order.

3. PLATFORM PACKS
(a) In connection with Customer’s use of the Software, SmartDeploy may make available, through its Administrative Tools or through other means, certain Platform Packs. The Platform Packs are provided by SmartDeploy as a service to help Customer achieve hardware independence faster and easier and are intended to be used only with the Software. These Platform Packs are templates that can be further customized through the Software and can be used as a reference when creating Customer’s own Platform Packs. All intellectual property rights relating to the device drivers that are included in the Platform Packs are owned by third parties, and SmartDeploy expressly does not provide Customer with any license or other rights in or to the device drivers. Customer is solely responsible for obtaining all licenses that may be required in connection with Customer’s intended use of the device drivers and for complying with the terms of those licenses. By downloading or obtaining any Platform Packs from SmartDeploy, Customer represents, warrants, and certifies to SmartDeploy that Customer owns the specific computer devices/models for which Customer is downloading the Platform Packs, that Customer has already separately and properly obtained the applicable device drivers and all licenses that are required in connection with Customer’s intended use of those device drivers, and that Customer is in compliance with the terms of those licenses.

(b) Although SmartDeploy makes commercially reasonable efforts to test and control the quality of Platform Packs, it cannot guarantee the functionality of the Platform Packs or their contents. SmartDeploy also has no control over the quality of any third-party product, including, without limitation, any device drivers. ACCORDINGLY, THE PLATFORM PACKS AND THE DEVICE DRIVERS INCLUDED THEREIN ARE PROVIDED “AS IS” AND WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND SMARTDEPLOY HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES RELATING THERETO, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, PERFORMANCE, ACCURACY, RELIABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

4. INTELLECTUAL PROPERTY RIGHTS
Customer acknowledges that the Software and any copies that Customer is authorized by SmartDeploy to make are the intellectual property of and are owned by SmartDeploy and its suppliers. The structure, organization, and code of the Software are the valuable trade secrets and confidential information of SmartDeploy and its suppliers, and Customer agrees not to disclose such structure, organization, and code for any purpose other than as approved by SmartDeploy in writing or otherwise disclose such structure, organization, and code to third parties, provided however that for the avoidance of doubt, this provision shall not prohibit Customer from allowing individuals that are part of its nonemployed workforce of Customer from accessing and using the software to manage Customer computers on behalf of Customer. The Software is protected by copyright, including without limitation by United States copyright law, international treaty provisions, and applicable laws in the country in which it is being used. Customer acknowledges that SmartDeploy retains the ownership of all patents, copyrights, trade secrets, trademarks, and other intellectual property rights pertaining to the Software. Customer will take no actions which adversely affect SmartDeploy’s intellectual property rights in the Software. SMARTDEPLOY and SMARTDEPLOY ENTERPRISE are trademarks of SmartDeploy. All other trademarks are the trademarks of their respective owners. Except as expressly stated above, this Agreement does not grant Customer any intellectual property rights in the Software or any other intellectual property of SmartDeploy. If Customer provides any feedback, suggestions, or comments to SmartDeploy regarding the Software (“Feedback”), SmartDeploy will own all right, title, and interest in and to the Feedback. SmartDeploy will be entitled to use the Feedback without restriction, without compensation to Customer, and without Customer’s prior approval. Customer hereby irrevocably assigns to SmartDeploy all right, title, and interest in and to the Feedback and agrees to provide SmartDeploy (at SmartDeploy’s expense) any assistance SmartDeploy may require to document, perfect, and maintain its rights in the Feedback.

5. PAYMENTS
Customer will pay all fees specified in any Order or similar documentation under which Customer acquired Customer’s license rights in the Software and to receive Subscription Services and Support Services, in each case, pursuant to the terms specified in Exhibit A of this Agreement. Except as otherwise specified in an Order: (a) fees are based on the license rights and support services purchased and not actual usage; (b) payment obligations are noncancelable and fees paid are nonrefundable; and (c) quantities purchased cannot be decreased during the relevant contract period.

6. ASSIGNMENT; LIMITED TRANSFER RIGHTS FOR SOFTWARE
Neither this Agreement (including any Order) nor any rights, duties, or obligations under this Agreement (including any Order) may be assigned or otherwise transferred by either Party, in whole or in part, without obtaining the express prior written consent of an authorized signatory of the other Party. Notwithstanding the foregoing, this Agreement may be assigned in its entirety in connection with a merger, acquisition, or sale of all or substantially all of such party’s assets and/or capital stock or ownership interests, provided that the assignee is not a direct and material competitor of SmartDeploy and the assignee agrees in writing to be bound by all of the terms and conditions of this Agreement and any other terms and conditions upon which Customer legally purchased a license to the Software, and further complies with the requirements of the following paragraph, if applicable. The Parties acknowledge that an assignment effected in accordance with this Section does not entitle the assignor, the assignee, or their respective successors and assigns to terminate any Order.

With respect to any installed software of a Customer that is assigning its rights as authorized in the paragraph above, Customer may transfer all of Customer’s rights to use the Software to the successor legal entity provided that: (a) Customer also transfers the Software, and all other software or hardware bundled or preinstalled with the Software, including all copies, updates, and prior versions, and all copies of font software converted into other formats, to such person or entity; (b) Customer retains no copies, including backups and copies stored on a computer; and (c) the successor party is legally entitled to receive and use the Software. Notwithstanding the foregoing, Customer may not transfer education, prerelease, or not-for-resale copies of the Software. Customer may not transfer or assign the Software and/or this Agreement to another person or legal entity other than as authorized by this Section 6, and Customer acknowledges and agrees that any such unauthorized transfer or assignment shall be null and void.

7. PRERELEASE PRODUCT ADDITIONAL TERMS
If the Software Customer has received with this license is precommercial release or beta Software (“Prerelease Software”), then this Section applies. To the extent that any provision in this Section is in conflict with any other term or condition in this Agreement, this Section shall supersede such other term(s) and condition(s) with respect to the Prerelease Software, but only to the extent necessary to resolve the conflict. Customer acknowledges that the Software is a prerelease version, does not represent a final product from SmartDeploy, and may contain bugs, errors, and other problems that could cause system or other failures and data loss. CONSEQUENTLY, THE PRERELEASE SOFTWARE IS PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS, AND SMARTDEPLOY EXPRESSLY DISCLAIMS ANY WARRANTY OR LIABILITY OBLIGATIONS TO CUSTOMER OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY. WHERE LEGALLY LIABILITY CANNOT BE EXCLUDED FOR PRERELEASE SOFTWARE, BUT IT MAY BE LIMITED, SMARTDEPLOY’S TOTAL LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY UNDER THIS AGREEMENT (AND THAT OF ITS SUPPLIERS) SHALL BE LIMITED TO THE SUM OF FIFTY DOLLARS (US $50) IN TOTAL. Customer acknowledges that SmartDeploy has not promised or guaranteed to Customer that Prerelease Software will be announced or made available to anyone in the future, that SmartDeploy has no express or implied obligation to Customer to announce or introduce the Prerelease Software, and that SmartDeploy may not introduce a product similar to or compatible with the Prerelease Software. Accordingly, Customer acknowledges that any research or development that Customer performs regarding the Prerelease Software or any product associated with the Prerelease Software is done entirely at Customer’s own risk. If Customer has been provided the Prerelease Software pursuant to a separate written agreement, Customer’s use of the Software is governed by such agreement. Customer may not sublicense, lease, loan, rent, distribute, or otherwise transfer the Prerelease Software. Upon receipt of a later unreleased version of the Prerelease Software or release by SmartDeploy of a publicly released commercial version of the Software, whether as a stand-alone product or as part of a larger product, Customer agrees to return or destroy all earlier Prerelease Software received from SmartDeploy and to abide by the terms of the license agreement for any such later versions of the Prerelease Software.

8. WARRANTY AND LIMITATION OF LIABILITY
(a) Limited Performance Warranty & Remedies.

(i) SmartDeploy warrants that: (i) the Software will perform substantially in accordance with the SmartDeploy User’s Guide for the Software for a period of one-hundred and eighty (180) days from the date of receipt; and (ii) any Support Services provided by SmartDeploy shall be performed in an expert professional and workmanlike manner consistent with performance standards for leading companies in the industry and in accordance with the requirements set forth in the Order, and SmartDeploy support engineers will make commercially reasonable efforts to solve any problem issues. Some states and jurisdictions do not allow limitations on duration of a warranty, so the above limitation may not apply to Customer.

(ii) Customer Remedies for Performance Warranty. SmartDeploy’s and its suppliers’ entire liability and Customer’s exclusive remedy for the warranties provided in (i) above, shall be, at SmartDeploy’s option, either: (i) return of the price paid, if any; or (ii) repair or replacement of the Software that does not meet SmartDeploy’s Limited Warranty and which is returned to SmartDeploy with a copy of Customer’s receipt. This Limited Warranty is void if the failure of the Software has resulted from accident, misuse, unauthorized use, abuse, or misapplication of the Software, including without limitation any alteration or modification to the Software, from the operating environment in which the Software is being used, or from any defect in or failure of any third party software or hardware not supplied by SmartDeploy.

(b) Additional Warranties.

(i) SmartDeploy will comply with, and the software and services will comply and be performed in accordance with, all applicable federal, state, and local laws, rules, and regulations; (ii) the Software and services (including without limitation any software or other content, element, or portion thereof) will not infringe upon, misappropriate, or otherwise violate any patent, copyright, trademark, trade secret, or other proprietary right of any third party; (iii) the Software and the services will not contain any viruses, worms, or other malicious computer programming codes intended to damage Customer’s system or data.

(c) No Other Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SMARTDEPLOY AND ITS SUPPLIERS DO NOT MAKE AND HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFORMATIONAL CONTENT OR ACCURACY, OR QUIET ENJOYMENT, WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THIS LIMITED WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS. CUSTOMER MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.

(d) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EACH PARTY OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION), AND IN THE CASE OF SMARTDEPLOY SUCH LIABILITY EXCLUSIONS SHALL BE ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, EACH PARTY’S ENTIRE LIABILITY TO THE OTHER UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO AN AMOUNT EQUAL TO TWO (2) TIMES THE TOTAL FEES PAYABLE BY CUSTOMER TO SMARTDEPLOY DURING THE TERM OF THE AGREEMENT. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply. The foregoing limitation on liability shall not apply to (i) damage to property; (ii) intentional misconduct or gross negligence; AND (iii) indemnification obligations.

(e) Infringement Claims. SmartDeploy will indemnify and hold Customer harmless and will defend or settle any third-party claim, suit, or proceeding brought against Customer that is based upon a claim that the content contained in the Software infringes a third party’s copyright or violates an intellectual or proprietary right protected by United States law (“Claim”), but only to the extent the Claim arises directly out of the use of the Software. For purposes of clarity, SmartDeploy will have no obligation to indemnify, hold harmless, or defend Customer in connection with any Claim to the extent such Claim would not have been brought but for the misuse, unauthorized use, abuse, or misapplication by Customer of the Software, including without limitation any alteration or modification to the Software, or from the unapproved use or combination of the Software with any third-party software or hardware. Customer must promptly notify SmartDeploy in writing of any Claim, and Customer shall provide to SmartDeploy (at SmartDeploy’s cost) reasonable assistance and cooperation as SmartDeploy may request from time to time in connection with the defense of the Claim. SmartDeploy shall have sole control over any Claim (including, without limitation, the selection of counsel and the right to settle on Customer’s behalf, provided that such settlement does not admit or apportion any fault to Customer, in which case, Customer must provide prior written consent to such settlement). Customer may, at Customer’s sole cost, retain separate counsel and participate in the defense or settlement negotiations. SmartDeploy shall pay actual damages and costs awarded against Customer (or payable by Customer pursuant to a settlement agreement) in connection with a Claim. If the Software or its use becomes the subject of a Claim or its use is enjoined, or if in the opinion of SmartDeploy’s legal counsel the Software is likely to become the subject of a Claim, SmartDeploy shall attempt to resolve the Claim by using commercially reasonable efforts to modify the Software (provided that the Software’s functionality is not substantially changed) or obtain a license to continue using the Software. If in the opinion of SmartDeploy’s legal counsel the Claim, the injunction, or potential Claim cannot be resolved through reasonable modification or licensing, SmartDeploy, at its own election, may terminate this Agreement without penalty and will refund to Customer (i) license fees paid by Customer and (ii) a pro rata amount of any paid but unused services fees paid in advance by Customer to SmartDeploy for the use of the Software.

9. TERM AND TERMINATION
This Agreement shall commence as of the Effective Date and shall continue for the period for which Customer has purchased Subscription or Support Services, unless earlier terminated as set forth in this Section; provided, however, that termination of this Agreement shall not affect any of Customer’s perpetual licenses to use the Software granted in Section 2 of this Agreement. If Customer did not purchase a license and is using the Software on a trial or other promotional basis, Customer’s rights to use the Software shall expire as of the expiration of such trial or promotion, unless earlier terminated as set forth in this Section. This Agreement may be terminated: (a) for convenience, by Customer’s giving SmartDeploy written notice of termination; (b) if SmartDeploy commits a breach of this Agreement, by Customer’s giving SmartDeploy written notice of termination and SmartDeploy fails to cure such breach within thirty (30) days after notice; or (c) by SmartDeploy, at its option, giving Customer written notice of termination: (i) if Customer commits a breach of this Agreement and fails to cure such breach within thirty (30) days after notice from SmartDeploy; or (ii) if Customer ceases to conduct business in the ordinary course or otherwise becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. Upon any termination of this Agreement by SmartDeploy for cause or termination by Customer for any reason, Customer must cease all use of the Software and destroy all copies then in Customer’s possession or control. Upon termination of this Agreement by Customer for cause, SmartDeploy shall refund Customer for any paid but unused services fees.

Upon either the termination of this Agreement or the conclusion of the Subscription or Support Services term, SmartDeploy shall retain Customer’s data for 180 days. After 180 days post the termination of this Agreement or the conclusion of the Subscription or Support Services term SmartDeploy may remove, destroy, and permanently delete Customer’s data. At any time during or after the term of this Agreement or of the Subscription or Support Services, Customer who is duly authorized to take such action may request in writing that data be or confirm data has already been reset, removed, destroyed, or permanently deleted, and SmartDeploy shall act timely on such requests and shall not unreasonably withhold acting on such requests.

10. AUDIT RIGHTS
SmartDeploy may retain administrative access to Customer’s account through the SmartDeploy Licensing Portal for purposes of auditing Customer’s compliance with the terms of this Agreement, including without limitation Customer’s usage of the Software. SmartDeploy and/or its designees, at its sole expense, shall have the right, upon at least thirty (30) days prior notice to Customer, and no more than once per year, to audit and inspect Customer’s records for purposes of determining Customer’s compliance with this Agreement. Customer agrees to cooperate with SmartDeploy in connection with any such audit. If as a result of any audit conducted pursuant to this Section 10 SmartDeploy learns that the number of Target Computers deployed with Deployment Packages exceeds the total license count purchased by 10%, Customer will reimburse SmartDeploy for its actual out-of-pocket expenses in connection with the audit. In the event the number of Target Computers deployed with Deployment Packages exceeds the total license count purchased, Customer will be invoiced at the rates set forth in the Order under the heading “Licensing Agreement” for the Support Services and licensing cost associated with the excess quantity of deployed Target Computers.

11. GENERAL PROVISIONS
This Agreement shall be governed by the laws of the State of Washington, USA, excluding its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. This Agreement (including the Order) contains the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior written and oral understandings of the Parties with respect to the subject matter hereof. In the event of conflict between the components of this Agreement, the terms of any Order will prevail over any other terms and a more recent Order will prevail over a previous Order. Any notice or other communication given under this Agreement shall be in writing and shall have been properly given by either of us to the other if sent by certified or registered mail, return receipt requested, or by overnight courier to the address shown in the Order, or such other address as the Parties may designate by notice given in the manner set forth above. This Agreement will bind and inure to the benefit of the Parties and their respective heirs, personal and legal representatives, affiliates, successors, and permitted assigns. The failure of either Party at any time to require performance of any provision hereof shall in no manner affect such Party’s right at a later time to enforce the same or any other term of this Agreement. This Agreement may be amended only by a document in writing signed by both of us. In the event of a breach or threatened breach of this Agreement by either Party, the other shall have all applicable equitable as well as legal remedies. The Software and its related documentation may not be exported or reexported in violation of the US Export Administration Act or other applicable laws and their implementing regulations or the laws of the jurisdiction in which the Software was obtained. Each Party is duly authorized and empowered to enter into and perform this Agreement. If, for any reason, any provision of this Agreement is held invalid or otherwise unenforceable, such invalidity or unenforceability shall not affect the remainder of this Agreement, and this Agreement shall continue in full force and effect to the fullest extent allowed by law. This Agreement may be executed in one or more counterparts. Electronic or fax signatures, including DocuSign, are acceptable means of signing this Agreement. The Parties knowingly and expressly consent to the foregoing terms and conditions.

EXHIBIT A – SMARTDEPLOY PAYMENT TERMS

  1. Charges and Fees. Customer will pay all fees specified in any Order or similar documentation under which Customer acquired the license rights in the Software and/or right to receive the Subscription Services, in each case, pursuant to the terms of the Agreement. Except as otherwise specified in the Order: (a) fees are based on the Software rights and Subscription purchased and not actual usage; (b) payment obligations are noncancelable and fees paid are nonrefundable; and (c) quantities purchased cannot be decreased during the relevant contract period. All fees are to be paid in USD.
  2. Payment Terms. All fees are due Net 30 unless other payment terms are listed in the Order.
  3. Taxes. All fees are exclusive of any applicable sales taxes, use taxes, import or export taxes, duties, fees, value-added taxes, surcharges, tariffs, or other amounts attributable to Customer’s execution of the Order and Agreement, access to the SmartDeploy Platform, use of the SmartDeploy Software, or performance of the Subscription Services or Support Services (collectively, “Surcharges”). Customer will be responsible for the payment of any Surcharges (not to include, for the avoidance of doubt, any taxes on SmartDeploy’s net income). In the event SmartDeploy is required to pay Surcharges on Customer’s behalf, Customer will promptly reimburse SmartDeploy for all amounts paid.
  4. Nonpayment. SmartDeploy reserves the right to suspend or terminate the right to the Software, Subscription Services, or Support Services if Customer’s account becomes delinquent. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Customer will continue to be charged for Customer’s Software, Subscription Services, or Support during any period of suspension. If termination is initiated, other than for an uncured material breach of the Order by SmartDeploy, Customer will be obligated to pay the balance due on Customer’s account computed in accordance with the Charges and Payment of Fees section above. Customer agrees that SmartDeploy may bill Customer for such unpaid fees.
  5. Subscription Start Date and Term. The Subscription Services and Support Services Start Date is the later of the date listed on the Order or the date the Order is executed and processed. The Subscription Services and Support Services Term commences on the Subscription Services and Support Services Start Date and continues for an Initial Term of twelve (12) months, or as set forth in the Order.
  6. Invoice and Billing Information. Invoices for the Initial Term will be generated upon processing of the Order. Customer agrees to provide SmartDeploy with complete and accurate billing and contact information. This information includes Customer’s legal company name, street address, email address, and name and telephone number of an authorized billing contact. Customer agrees to update this information within 30 days of any change to it.

EXHIBIT B – EVALUATION TERMS

  1. As used in this Agreement, “Customer” refers to you as the individual that accepted these Evaluation Terms and the organization you represent and for which you are authorized to act in accepting and agreeing to these Evaluation Terms.
  2. The “Evaluation Term” is 14 calendar days, beginning on the date you accept these Evaluation Terms. SmartDeploy may, in its sole discretion, authorize extensions of that 14-day evaluation period.
  3. The following sections of the SmartDeploy Enterprise Software License and Services Agreement, set forth above (“SLSA”), are incorporated into the Evaluation Terms: Sections 1 (Definitions), 4 (Intellectual Property Rights), 7 (Prerelease Product Additional Terms), 10 (Audit Rights), and 11 (General Provisions).
  4. Section 2 (Software License and Services) of the SLSA is replaced with the following provision:

a. License Grant. Subject to Customer’s compliance with the terms and conditions set forth in this Agreement, SmartDeploy hereby grants Customer a limited license during the Evaluation Term to evaluate the Software and Subscriptions Services.

i. Using a valid user name and password, Customer may install the Software on Technician Computers to execute administrative tasks for the creation or modification of Deployment Packages intended for Target Computers. Examples of administrative tasks are monitoring Target Computers and creating or modifying deployment media, images, or Device driver packages.

ii. A Target Computer license is required for each machine on which the SmartDeploy Client software is installed or a Deployment Package is used. The total number of Target Computers on which Customer installs the Client or uses Deployment Packages may not exceed the quantity of licenses authorized.

b. Server Use. A server may be used as a Technician Computer, a Target Computer, to store Deployment Packages, or as a backup for the Software. Other network use is prohibited by any user not licensed to use the Software through a valid license from SmartDeploy.

c. Usage Data Collection and Use. SmartDeploy may collect, retain, disclose, and use Usage Data. SmartDeploy uses this Usage Data to enable, provide, optimize, and improve the Software and support (including but not limited to Support Services) to its customers. All Usage Data is owned exclusively by SmartDeploy.

d. Full Version. Customer may not relicense, reproduce, or distribute a full version or other copy of the Software, in whole or part, except with the express written permission of SmartDeploy.

e. Title. The Software is licensed and not sold. Title to the Software is not transferred to Customer. Ownership of all copies of the Software and of copies made by Customer is vested in SmartDeploy, subject to the rights of use granted to Customer in this Agreement.

f. Reverse Engineering. Customer may not reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, underlying ideas, underlying user interface techniques, or algorithms of the Software by any means whatsoever, directly or indirectly, or disclose any of the foregoing.

g. Other Restrictions. Customer may not loan, rent, lease, sublicense, distribute, or transfer all or any portion of the Software to third parties (which shall, for the avoidance of doubt, exclude affiliates of Customer), including through or in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service, except for the limited right to transfer all of the Software to a successor entity as set forth in Section 6 below. Customer may not copy the Software except for backup and archival purposes as expressly set forth above. Customer may not modify, adapt, or translate the Software. Customer may not, directly or indirectly, encumber or suffer to exist any lien or security interest on the Software; knowingly take any action that would cause the Software to be placed in the public domain; or use the Software in any computer environment not specified in this Agreement. Customer may not in any way create, make available, or distribute, either directly or indirectly, any application that would enable others to utilize the tools and features available only to licensed users of the Software, or that would otherwise circumvent the need for any third party to purchase a valid license(s). Customer will comply with applicable law and SmartDeploy’s instructions regarding the use of the Software.

h. The Software is not intended for use in environments where the failure of the Software could lead to death, personal injury, or severe physical or environmental damage and shall not be used in such environments. Customer is further responsible for the accuracy, quality, and legality of any electronic data, content, and information submitted by Customer in connection with Customer’s use of the Software or characterizing Customer’s business and the means by which Customer acquired such data.

  1. The following sections of the SLSA do not apply: Section 2 (Software License and Services) (except as specified above); 2 (Platform Packs), 5 (Payments), 8 (Warranty and Limitation of Liability), 9 (Term and Termination), and Exhibit A (Payment Terms.)
  2. Customer may not assign any of its rights, obligations, or duties under this Agreement, in whole or part.
  3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SMARTDEPLOY AND ITS SUPPLIERS DO NOT MAKE AND HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, INFORMATIONAL CONTENT OR ACCURACY, OR QUIET ENJOYMENT, WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES.
  4. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SMARTDEPLOY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION).
  5. SMARTDEPLOY’S ENTIRE LIABILITY TO THE CUSTOMER UNDER THIS AGREEMENT SHALL BE LIMITED TO TEN DOLLARS. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitations may not apply.
  6. SmartDeploy may immediately terminate this Agreement in the event of any breach by Customer.

Last Updated: March 17, 2021