Master Services Agreement

Recitals

WHEREAS, utilITise maintains products that automatically detect, troubleshoot and resolve issues with internal informational technology (“IT”) systems and processes operated by and for businesses (the “Platform”);

WHEREAS, Licensee desires to obtain access to Platform and Services, as set forth within this Agreement and to license the use of the Platform;

NOW THEREFORE, in recognition of the mutual consideration hereunder, the receipt and sufficiency of which are hereby acknowledged, utilITise and Licensee agree as follows:

Agreement

1.  Grant of License and Access Rights

(a) License. This Agreement sets forth the terms and conditions under which utilITise agrees to provide, during the Term (as defined below), the non-exclusive, royalty-free, limited, non-transferable, non-assignable right and license, for internal purposes only, to access, operate and use the Platform within the Licensee’s internal IT infrastructure, for the sole purpose of expediting and automating IT issues and work orders through the Company’s proprietary software (the “Permitted Use”). The license granted to Licensee in this Agreement is terminable as provided in Section 5 of this Agreement.

(b) Access. Licensee agrees to limit access to the Platform solely to its officers, employees, directors, agents, representatives and subcontractors (collectively, “Authorized Users”) solely for the Permitted Use. Access to the Platform may not be resold or licensed by Licensee, nor made available by Licensee for general public access or for any use other than the Permitted Use. Licensee will employ reasonable security measures with respect to access to and use of the Platform, which in no event may be less protective than the efforts Licensee uses to protect its own confidential information, so that neither the Services nor the Platform are accessible to unauthorized persons. Licensee will also use its best efforts to maintain the confidentiality of all passwords and information provided by Licensee or by utilITise and to limit the sharing of passwords, account numbers or other confidential information.

(c) Terms and Conditions. This Agreement shall serve as a master services agreement and shall govern and control with respect to the Services to be performed by the Company for the Licensee under this Agreement. This Agreement shall define the rights and obligations as between the Parties with respect to the Services to be provided by utilITise hereunder. Additionally, Licensee agrees to use the Platform and Services solely in accordance with utilITise’s then-current terms and conditions listed on utilITise’s website, and other documents, if any, provided by utilITise in connection with the Platform and/or the Services, any or all of which may be made available online. Licensee acknowledges that utilITise may from time to time update its terms and conditions and such changes will be binding upon Licensee.

(d) Changes to Platform. utilITise may, in its sole discretion, make any changes to Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of utilITise products or services to its customers, (b) the competitive strength of products or services, (c) such Platform’s cost efficiency or performance, or (ii) to comply with applicable law.

(e) Data Ownership and Use Rights. All data, analytics, system logs, error reports, performance metrics, feedback, or other information (collectively, “Data”) generated, collected, or otherwise obtained by utilITise in connection with the Services or the operation of any system, platform, or software provided hereunder shall be and remain the sole and exclusive property of utilITise. utilITise shall have a perpetual, irrevocable, worldwide, royalty-free, fully transferable, sublicensable, and assignable right and license to collect, reproduce, analyze, modify, distribute, display, perform, resell, commercialize, and otherwise use and exploit the Data and any related materials or deliverables (“Work Product”) in any manner and for any purpose whatsoever, including without limitation for product development, analytics, research, benchmarking, diagnostics, marketing, and commercial resale. Licensee acknowledges and agrees that utilITise may combine or integrate the Data or Work Product with other data sets, materials, or deliverables, and may use, publish, or commercialize any aggregated or derivative works thereof without restriction or obligation to Licensee. Licensee further waives any and all rights or claims to ownership, compensation, attribution, or approval related to any use or commercialization of such Data or Work Product by utilITise.

2.  Services and Additional Services

(a) Services. utilITise will provide to Licensee, the services, deliverables, and or software (collectively, the “Services”), as set forth in separate Statement of Work (“SOW”) executed by the parties from time to time. Each SOW shall (i) upon execution be incorporated into the Agreement; (ii) reference the Agreement via a version number and date located in the title and the footer of Agreement, however failure of any SOW to include this information will not affect the validity of an SOW; (iii) describe in sufficient detail all of the Services that utilITise is required to perform or provide to Licensee; (iv) describe the aggregate fees for the Services being provided; and (v) be subject to all of the terms and conditions provided herein. When required by either party, the parties will in good faith negotiate additions or changes to Services or amend the description of the Services in a SOW. An Addendum will be provided by utilITise upon request and shall be used for all changes, additions or amendments to the terms or conditions of an executed SOW.

(b) If required by either party, each party will appoint an individual for each project who will serve as their primary representative (the “Representative”). The Licensee’s Representative will be available when utilITise personnel are at Licensee’s premises or, alternatively, will designate another representative with the same level of authority and knowledge in the event of the Representative’s unavailability. Either party may change its Representative at any time upon written notice to the other party.

(c) Maintenance and Support Services. During the Term, and conditioned upon the Licensee’s payment of the fees and any other amounts provided for in the SOW for the Services provided by utilITise, utilITise agrees to provide certain maintenance and support services to support the Platform and the execution of the Services.

(d) Hosting Services; Interruption of Service. utilITise will maintain the Platform and the Data at facilities selected by utilITise. Subject to the terms of this Agreement and except for reasonable periods of maintenance (both scheduled and unscheduled), utilITise will use commercially reasonable efforts to make the Platform available for access by Licensee, as applicable, 24 hours per day, 7 days per week, 365 days per year; provided that access to the Platform and/or Services may be interrupted from time to time as is reasonably necessary for maintenance, upgrades and repair, whether scheduled or otherwise, and access will be subject to force majeure events (as described in Section 10). utilITise will notify Licensee in advance of any periods of downtime.

(e) Environment. For the purposes of this Agreement, “Environment” means, collectively, any computer network (cloud-based or otherwise), computer system, peripheral or device (virtual or physical) acquired, installed, maintained, monitored, or operated by us pursuant to a SOW. To avoid a delay or negative impact on our provision of the Services, during the term of each SOW utilITise strongly advises you to refrain from modifying or moving the Environment or installing software in the Environment, unless we expressly authorize such activity. In all situations where utilITise is co-managing an Environment with your internal IT department, utilITise will not be responsible for changes to the Environment or issues that arise from those changes made without our knowledge and consent. All platforms, software, hardware, programs, applications in the Environment must be genuine and licensed. If utilITise requires specific minimum hardware or software requirements in an SOW (“Minimum Requirements”), you agree to implement and maintain those Minimum Requirements as an ongoing requirement of utilITise providing the Services to you.

3.  Ownership of Intellectual Property Rights; Exclusivity; Non-Competition

(a) Ownership. No ownership in the Confidential Materials (as defined below) is transferred to Licensee (or any other person or entity, including the Authorized Users) under this Agreement, other than as expressly described herein. Licensee acknowledges that the Confidential Materials constitute intellectual property and trade secrets of utilITise to be used by Licensee only as expressly permitted by this Agreement, and that the restrictions imposed upon Licensee by this Section 3 are necessary to protect the secrecy of such information and prevent injury and harm to utilITise. All intellectual property rights to any modifications, enhancements or derivative works of or to the Platform or Services, whether developed at Licensee’s request or otherwise, will be owned solely by utilITise. As between Licensee and utilITise, all intellectual property and other rights in the Platform produced or provided by utilITise under this Agreement shall be the property of utilITise. To the extent Licensee has any interest therein, Licensee hereby assigns, and upon its creation, automatically assigns to utilITise the ownership of such interest (and any other intellectual property therein) without any further consideration. Further, utilITise alone will own all right, title and interest in and to any and all feedback, suggestions, recommendations, ideas and/or innovations arising out of or in connection to the Platform and/or the Services by Licensee and Licensee hereby assigns the same. “Confidential Materials” means (i) the Platform, the Services and any other information or materials related thereto, in tangible, verbal or electronic form, (ii) all information or materials disclosed by utilITise or its employees, agents, independent contractors or representatives to Licensee (or, if applicable, any Authorized Users) under this Agreement, and (iii) all information obtained through evaluation of the Platform or the Services.

(b) Confidentiality. Licensee and utilITise shall each protect the Confidential Information (as defined below) of the disclosing party from unauthorized disclosure or unauthorized use by the receiving party. The receiving party will not, without the prior written consent of the disclosing party, disclose or use for its own benefit (other than as herein provided) the Confidential Information of the disclosing party, and will only disclose same to those of its employees, independent contractors, attorneys or auditors who need to know such information and who are subject to binding confidentiality restrictions that are at least as restrictive as the terms of this Section 3. In no event shall the receiving party disclose any Confidential Information of the disclosing party to any direct or indirect competitor of the disclosing party. As used herein, the “Confidential Information” of a disclosing party means all information supplied by the disclosing party to the receiving party hereunder, including without limitation the Confidential Materials (in the case of disclosure by utilITise) and any trade secrets or any information whether or not marked as “confidential” or “proprietary” in tangible form, identified as “confidential” or “proprietary” if orally disclosed that the receiving party knew, or reasonably should have known under the circumstances that the information was confidential and/or proprietary.

(c) Prohibited Actions. Licensee may not (i) reverse engineer, decompile, or disassemble the Platform or any other aspect of utilITise’s technology, (ii) use, copy, or modify the Platform or any copy, adaptation, transcription, or merged portion thereof, (iii) sell, license, lease, rent, loan, lend, transmit, network, or otherwise distribute or transfer the Platform or the Services in any manner to any third parties, or (iv) use the Platform for any purpose or in any manner other than the Permitted Use. Licensee agrees that it will use the Platform and Services for its internal purposes only and will not use the Platform or Services to provide services to third parties through a service bureau or any other arrangement, other than as expressly permitted herein.

4.  Representations, Warranties, and Indemnification

(a) Mutual Representations. Each party represents to the other that (i) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with the party’s execution, delivery, or performance of this Agreement; and (iii) the execution, delivery and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

(b) Warranties By utilITise. utilITise warrants and represents that: (i) it has the right to grant the license to use the Platform and Services as set forth in this Agreement without violating the rights of any third party; (ii) there is no actual or threatened suit by any third party of any alleged violation of such right by utilITise; (iii) to the extent it incorporates third party rights into the Platform or Services, it has obtained the rights from those third parties necessary to grant to Licensee the various license rights under this Agreement; and (iv) the Platform and Services shall substantially comply with the functionality and performance criteria as set forth in this Agreement.

(c) DISCLAIMER; LIMITED WARRANTIES. utilITise’S WARRANTIES WITH RESPECT TO THE PLATFORM AND THE SERVICES ARE LIMITED TO THOSE EXPRESSLY SET FORTH HEREIN. THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND utilITise HEREBY DISCLAIMS ALL OTHER WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) TO THE MAXIMUM EXTENT PERMITTED BY LAW. utilITise DOES NOT WARRANT THAT THE PLATFORM WILL PERFORM UNINTERRUPTED OR ERROR FREE, NOR DOES utilITise MAKE ANY WARRANTY AS TO THE RESULTS OBTAINED FROM USE OF PLATFORM OR SERVICES. FURTHER, utilITise MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SERVICES PROVIDED BY THIRD PARTY TECHNOLOGY PROVIDERS RELATING OR SUPPORTING PLATFORM. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY utilITise, ITS AGENTS, INDEPENDENT CONTRACTORS OR EMPLOYEES WILL IN ANY WAY INCREASE THE SCOPE OF utilITise’S WARRANTIES UNDER THIS AGREEMENT.

(d) Indemnification by Licensee. Licensee hereby agrees to indemnify utilITise and its affiliates and their respective employees, officers, directors, managers, agents and representatives from and against any and all claims, demands, causes of action, suits, proceedings, liabilities, damages, losses, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Claims”), arising out of or based upon (a) any breach of this Agreement by Licensee; (b) any breach of the terms and conditions by Licensee or Licensee’s Authorized Users, (c) any use of the Platform or the Services by Licensee or any Authorized User that is not expressly permitted by this Agreement or the terms and conditions, or (d) any claims by any third party against utilITise relating in any respect to any Services performed hereunder except where such claim is the result of the gross negligence or willful misconduct of utilITise. utilITise agrees to give Licensee prompt written notice of any such Claim and to furnish Licensee with reasonable assistance in the defense of such Claim at Licensee’s expense. Licensee shall not settle or compromise any Claim without utilITise’s prior written consent, which shall not be unreasonably withheld.

(e) Compliance with Law. Each party represents and warrants that its use and provision (as applicable) of the Platform and Services will be conducted in accordance with all applicable federal, state and local laws and regulations. Licensee warrants and agrees that at all times when Licensee or its Authorized Users are using the Platform or the Services.

5.  Term

(a) The term of this Agreement shall commence on the Effective Date and continue until a Party gives notice of nonrenewal of the Agreement (the “Term”). Each SOW shall specify the commencement date and term duration for the completion of the Services described therein.

(b) This Agreement may be terminated (a) by either party if the other party breaches this Agreement and such breach is not cured within thirty (30) calendar days after the breaching party receives notice of the specific breach from the non-breaching party; (b) by either party immediately upon written notice to the other party if a voluntary proceeding by the other party or any involuntary proceeding against the other party is commenced under any federal or state bankruptcy or insolvency law; or (c) by utilITise immediately upon written notice to Licensee (subject only to a five-day cure period) if Licensee (i) fails to make any payment when due under this Agreement; (ii) violates any applicable laws or regulations; or (iii) violates any material provisions of the terms and conditions. Upon the termination of this Agreement, (a) all access, use and license of Platform and services granted hereunder will immediately terminate, (b) Licensee will immediately cease use of the Platform, and (c) Licensee shall be responsible for all fees incurred through the date of termination. Notwithstanding any other provision, utilITise may suspend service under an SOW without notice if Licensee fails to timely pay for fees or other amounts due under the SOW.

6.  Limitation of Liability

EXCEPT FOR DAMAGES ASSERTED BY THIRD PARTIES, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR, AND THE PARTIES HEREBY WAIVE AS TO ONE ANOTHER, TO THE EXTENT PERMITTED BY LAW, ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES OR LOST PROFITS INCURRED BY THE OTHER PARTY, ASSOCIATED WITH THE PLATFORM, THE SERVICES OR THE PERFORMANCE OF THIS AGREEMENT. SUBJECT ONLY TO THE LIABILITY EXCEPTIONS (AS DEFINED BELOW), UNDER NO CIRCUMSTANCES SHALL EITHER PARTY’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO utilITise UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF SUCH CLAIM. AS USED HEREIN, “LIABILITY EXCEPTIONS” MEANS CLAIMS RELATING TO THIRD-PARTY CLAIMS, ANY BREACHES OF SECTION 3 HEREOF AND VIOLATIONS OF LAW. EACH PROVISION PROVIDING FOR A LIMITATION OF LIABILITY OR EXCLUSION OF DAMAGES HAS BEEN KNOWINGLY AGREED TO BY THE PARTIES TO ALLOCATE RISK BETWEEN THE PARTIES, AND THE INVALIDITY OF ANY SUCH PROVISION WILL NOT AFFECT THE VALIDITY OF ANY OTHER PROVISION.

7.  Independent Contractors

The relationship of the parties established by this Agreement is that of independent contractors. This Agreement will not be construed to give either party the power to (a) act as an agent, (b) direct or control the day-to-day activities of, or (c) bind or obligate the other party. Financial and other obligations associated with each party’s business are the sole responsibility of that party.

8.  Non-Assignability and Binding Effect

Neither party may assign its rights and obligations under this Agreement without the prior written consent of the other party. The parties agree that this Agreement is binding on them and does not and will not be interpreted to benefit or create any rights of any third parties.

9.  Publicity

utilITise and Licensee agree that utilITise may publicize the fact that Licensee is a user of the Services, including, without limitation, in social media posts, website inclusion(s), e-mail marketing, lists of customers. Any additional publicity concerning Licensee and any use of Licensee’s name or data in any publications, press releases or technical papers will require Licensee’s prior written consent.

10.  Force Majeure

Nonperformance of either party will be excused if performance is rendered impossible by strike, fire, flood, earthquake, accident, acts of God, riot, terrorism, war, governmental interference, acts, orders or restrictions, shortages of labor, delay in delivery of material or services by suppliers, Internet or other network infrastructure outages, delays or other failures that are beyond the control of such party and are not caused by the negligence of such party.

11.  Governing Law; Consent to Jurisdiction; Injunctive Relief

The laws of the State of Texas govern this Agreement without giving effect to provisions related to choice of laws or conflict of laws. The prevailing party in any lawsuit arising from or relating to this Agreement is entitled to recover its costs, including reasonable attorney fees. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the state courts of Harris County, Texas and the U.S. district court for the district located in Harris County, Texas and agrees to commence any action, suit or proceeding relating hereto only in such courts; provided that utilITise shall be entitled to pursue immediate and interim injunctive relief from any court of competent jurisdiction to restrain any unauthorized use by Licensee or any Authorized User of the Platform, the Confidential Materials or utilITise’s Confidential Information.

12.  Waiver and Severability

The waiver by either party of any breach of this Agreement does not constitute a waiver of any other breach of this Agreement and will not be a waiver of the party’s right to demand strict compliance in the future. If any part of this Agreement is unenforceable, the remaining portions of this Agreement will remain in full force and effect.

13.  Entire Agreement; Counterparts

This Agreement, including all exhibits (which are hereby incorporated by reference as though set forth fully herein and made a part of this Agreement), is the final and complete expression of all agreements between the parties and supersedes all previous oral and written agreements regarding these matters. This Agreement may be changed only by a written agreement signed by both parties. This Agreement may be executed in counterparts and delivered by facsimile or email, each of which will be deemed an original and all of which taken together will constitute but one and the same instrument.

14.  Survivability

Sections 3, 4, and 6 through 12 will survive the termination of this Agreement.