SaaS Agreement - JobSight

SOFTWARE AS A SERVICE

SUBSCRIPTION AGREEMENT

Last Revised: June 19, 2024

This Software as a Service Subscription Agreement (this “Agreement”) is entered into by and between JobSight LLC, a Utah limited liability company (“Provider”), and the customer who purchased the Services (“Customer”) as set forth in the Order Form that references via hyperlink or otherwise incorporates this Agreement. Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”. This Agreement takes effect on the date Customer executes or electronically accepts the initial Order Form (the “Effective Date”).

If Customer is an individual, Customer hereby affirms that he or she is either more than 18 years of age or has reached the age of legal majority in his or her jurisdiction of residence. If Customer is a legal entity, the person entering into this Agreement on behalf of Customer hereby affirms he or she has the right, power, and authority to enter into this Agreement and bind Customer to its terms.

1 - DEFINITIONS.

Capitalized terms that are used by not otherwise defined in this Agreement have the following respective meanings:

1.1 - “Account Administrator” is an Authorized User who is authorized by Customer to manage Customer’s account under the Services, including, without limitation, to configure administration settings, assign and revoke access permissions, request different or additional services, assist in Third-Party Product integrations, and to receive disclaimers and disclosures. Customer may change its Account Administrator at any time.

1.2 - “Authorized User” means an individual, whether an employee, contractor, business partner, or agent of Customer (a) who is authorized under Customer’s account to access and use the Services pursuant to the rights granted to Customer under this Agreement, and (b) for whom access to the Services has been purchased hereunder.

1.3 - “Customer Data” means all information, data, and other content, in any form or medium, that is submitted, uploaded, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.

1.4 - “Documentation” means the end user manuals, guides, instructions, or other documentation relating to the Services that Provider makes available to Customer in any form or medium.

1.5 - “Order Form” means any Provider order form, ordering documents, online sign-up, or subscription flow agreed to by Customer to purchase the Services.

1.6 - “Provider IP” means the Services, the Documentation, and any and all intellectual property of Provider made available or provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes all Usage Data, but does not include Customer Data.

1.7 - “Services” means Provider’s software as a service offering, which is delivered and accessible through www.jobsight.com or via a mobile or web-based application, as well as any related services, in each case ordered by Customer under an Order Form.

1.8 - “Third-Party Products” means any third-party software, including any open-source software, as well as any third-party materials, information, content, documents, etc., in any form or medium, that are provided with or incorporated into the Services.

1.9 - “Usage Data” means all data and other content and information relating to Customer’s and Authorized Users’ use, and the provision and performance of, the Services and its related systems and technologies.

2 - ACCESS AND USE.

2.1 - Subscription Grant. Subject to and conditioned on Customer’s payment of all Fees (defined below) as well as its and its Authorized Users’ compliance with all terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right during the Term (defined below), solely for its internal business purposes, to: (a) access and use the Services and Documentation; and (b) implement, configure, and through its Account Administrator, permit its Authorized Users to access and use the Services.

2.2 - Use Restrictions. Customer shall not at any time, and shall not permit any Authorized User or other person to: (a) use the Services for any purposes or in any manner that circumvents or exceeds or is beyond the scope of access granted to Customer and its Authorized Users under this Agreement; (b) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (c) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (d) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (e) remove, delete, alter, or obscure any copyrights, trademarks, warranties, disclaimers, disclosures, or other intellectual property or proprietary rights notices from the Services or Documentation; (f) use the Services or Documentation in any manner or for any purpose that (i) infringes, misappropriates, or otherwise violates any intellectual property right or other right of Provider or any other person or entity, (ii) effects or facilitates the storage or transmission of libelous, tortious, or otherwise unlawful material including, but not limited to, material that is harassing, threatening, or obscene, or (iii) violates any applicable law; or (g) access or use the Services or Documentation for purposes of competitive analysis of the Services or Documentation, the development, provision, or use of a competing software service or product, or any other purpose that is to Provider’s detriment or commercial disadvantage.

2.3 - Suspension of Access. Notwithstanding anything to the contrary in this Agreement, Provider may deny, suspend, or limit Customer’s, any Authorized User’s, and any other person’s access to or use of all or any part of the Services or Documentation, without incurring any resulting obligation or liability, if: (a) Provider reasonably determines that Customer or any Authorized User is or is reasonably likely to be in violation of any restriction set forth in Section 2.2 (Use Restrictions); (b) Provider’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; or (c) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so. This Section 2.3 does not limit any of Provider’s other rights or remedies, whether at law, in equity, or under this Agreement.

2.4 - Reservation of Rights. Provider reserves all rights and licenses not expressly granted to Customer under this Agreement. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or Authorized Users or any other person or entity any intellectual property rights or other right, title, or interest in or to the Provider IP. Provider reserves the right, in its sole discretion, to make any changes to the Services and Documentation that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Provider’s services to its customers; (ii) the competitive strength of or market for Provider’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law.

3 - CUSTOMER RESPONSIBILITIES.

3.1 - General. Each Authorized User must be identified by a unique email address or username, and two or more persons may not use the Services as the same Authorized User. Customer is responsible and liable for the security of its Authorized Users’ login credentials and for all use of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions.

3.2 - Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 2.2 (Use Restrictions), Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects; and (b) notify Provider in writing of any such actual or threatened activity.

3.3 - Implementation. Customer shall provide a primary point of contact, whether the Account Administrator or otherwise, to coordinate communication and make decisions during the initial onboarding and setup process for the Services (“Implementation”). Customer’s good faith best efforts and cooperation, including timely and responsive communication, is expected and will be relied upon by Provider throughout the Implementation process. Customer acknowledges and agrees that: (a) Provider’s ability to complete a successful and timely implementation is entirely dependent upon Customer’s good faith best efforts and cooperation; (b) its failure to engage in good faith best efforts and cooperation to implement the Services shall relieve Provider of its obligations to implement the Services within any specified period of time.

3.4 - Customer Data. Customer is solely responsible for obtaining, and hereby represents and warrants that it has, all necessary rights and licenses for Provider to access, use, and process all Customer Data. Further, Customer is solely responsible and liable for all results obtained from Customer Data, as well as all analyses, conclusions, interpretations, decisions, scheduling, coordination of field operations, compliance with laws and regulations, customer communications and service management, procurement and use of materials and services, quality of workmanship, and all other business activities conducted, based upon, or related to, Customer Data and the use of the Services.

3.5 - Third-Party Products. Provider may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and all applicable flow through provisions. If Customer does not agree to abide by all such terms and conditions and flow through provisions for any such Third-Party Products, then Customer must not install or use such Third-Party Products.

4 - FEES AND PAYMENT.

4.1 - Fees. Customer shall pay Provider the fees (“Fees”) specified in each Order Form. Each payment must be made using the designated method set forth in the Order Form. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (a) Provider may charge monthly interest on the past due amount at the rate that is the lesser of (i) 1.5%, or (ii) the highest rate permitted under applicable law; (b) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) Provider may deny, suspend or limit Customer’s and its Authorized Users’ access to any portion or all of the Services and Documentation until such amounts are paid in full.

4.2 - Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is 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, other than any taxes imposed on Provider’s income.

4.3 - No Deductions or Setoffs. All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason other than as may be required by applicable law.

4.4 - Subscription Adjustments. If an Authorized User accesses, uses, or activates any feature or functionality that is only included in a higher-priced subscription plan, or if Customer exceeds the limits of its subscription plan, including for example the total number of Authorized Users or total jobs or data storage limits, Provider may, in its sole discretion, upgrade Customer’s account to the appropriate higher-priced subscription plan for the remainder of the then-current Term and any and all renewals thereof, and Customer agrees to pay such fees.

5 - TERM AND TERMINATION.

5.1 - Term. The term of each Order Form is the subscription period set forth in such Order Form and all renewal periods. The term of this Agreement (the “Term”) begins on the Effective Date and will continue until the termination of all Order Forms between Provider and Customer. Upon the termination of the last active Order Form, this Agreement will immediately and automatically terminate.

5.2 - Termination Events. In addition to any other express termination right set forth in this Agreement or an Order Form: (a) Provider may terminate this Agreement if Customer fails to pay any amount when due under this Agreement or an Order Form, and such failure continues more than fourteen (14) days after Provider provides Customer written notice thereof; (b)either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches this Agreement or an Order Form, and such breach: (i) is incapable of cure, or (ii) being capable of cure, remains uncured for fourteen (14) days after the non-breaching Party provides the breaching Party with written notice of such breach; and (c)either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party (i) ceases to continue its business in the ordinary course, (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (iii) makes or seeks to make an assignment for the benefit of creditors or similar disposition of its assets, or (iv) becomes the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.

5.3 - Effect of Termination. Upon termination of this Agreement for any reason, except as expressly otherwise provided in this Agreement: (a) all active Order Forms hereunder will immediately and automatically terminate; (b) Provider may immediately disable all Customer and Authorized User access to the Services and Documentation; and (c) Customer shall immediately cease all use of the Services and Documentation. If Provider terminates this Agreement pursuant to Section 5.2(a) or Section 5.2(b), all Fees that would have become payable had this Agreement remained in effect until the expiration of the Term will become immediately due and payable, and Customer shall pay all such Fees, together with all previously-accrued but not yet paid Fees. If Customer terminates this Agreement pursuant to Section 5.3(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination, and Provider will refund to Customer any Fees it paid in advance for the terminated portion of the Term.

5.4 - Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination of this Agreement, will survive any termination of this Agreement: Section 2.2; Sections 3.1 through 3.4; Sections 4.1 through 4.3; Section 5.3 through Section 5.4; Section 6; and Sections 8 through 10.

6 - CONFIDENTIALITY.

6.1 - Confidential Information. In connection with this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its representatives’ noncompliance with this Agreement; (c) the Receiving Party can demonstrate by written or other documentary records, was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

6.2 - Duty of Confidentiality. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s employees, officers, representatives, agents, and advisors, who in each case have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (b) to establish a Party’s rights under this Agreement, including to make required court or arbitration filings. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will remain in effect during the Term and for a period of three (3) years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret, as determined under applicable law, such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

6.3 - Return or Destruction. Upon written request of the Disclosing Party, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and, upon Disclosing Party’s request, certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Notwithstanding anything to the contrary in this Agreement, the Receiving Party may retain the Disclosing Party’s Confidential Information (a) to the extent and for so long as required by applicable law, and (b) in its backups, archives, and disaster recovery systems until deleted in the ordinary course, provided that at all times such Confidential Information will remain subject to all confidentiality obligations and other applicable requirements of this Agreement.

7 - INTELLECTUAL PROPERTY RIGHTS.

7.1 - Provider IP. As between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP. Customer acknowledges and agrees that it has no right, license, or authorization with respect to any of the Provider IP, except as expressly set forth in this Agreement.

7.2 - Customer IP. As between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer.

7.3 - Feedback. If Customer or any of its Authorized Users or any other person on Customer’s behalf sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending additions or changes to the Provider IP, including, without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, “Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider all right, title, and interest in, and Provider is free to use, without any attribution or compensation of any kind, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.

7.4 - Usage Data. Notwithstanding anything to the contrary in this Agreement, Provider has the right to monitor Customer’s use of the Services and to access, collect, compile, analyze, and use all Usage Data for its own business purposes. Customer acknowledges that Usage Data may be based on or derived from Customer Data. Provider retains all right, title, and interest in Usage Data, and all intellectual property rights therein. Customer agrees that Provider may publicly publish, distribute, or display Usage Data, provided that Provider does so in a manger that does not identify Customer or Customer’s Confidential Information.

8 - DISCLAIMER; LIMITATIONS OF LIABILITY.

8.1 - Disclaimer. ALL SERVICES AND OTHER PROVIDER IP ARE PROVIDED “AS-IS”, “AS-AVAILABE”, WITH ALL FAULTS, AND PROVIDER MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF TITLE, AND OF ACCURANCY AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROVIDER OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, CUSTOMER’S USE OF THE SERVICE AND OTHER PROVIDE IP IS ENTIRELY AT CUSTOMER’S OWN RISK AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH CUSTOMER. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY PRODUCTS ARE PROVIDED “AS-IS”, “AS-AVAILABLE”, WITH ALL FAULTS, AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY PRODUCTS IS STRICTLY BETWEEN CUSTOMER AND THE OWNER OR DISTRIBUTOR OF SUCH THIRD-PARTY PRODUCT.

8.2 - Limitations of Liability. EXCEPT TO THE EXTENT THE FOLLOWING LIMITATION OF LIABILITY IS PROHIBITED BY LAW, IN NO EVENT WILL PROVIDER OR ITS AFFILIATES OR ITS OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, STOCKHOLDERS, MANAGERS, MEMBERS, AGENTS, SUCCESSORS, ASSIGNS, CONSULTANTS AND SUPPLIERS (EACH, A “PROVIDER ENTITY” AND, COLLECTIVELY, THE “PROVIDER ENTITIES”) BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING WITHOUT LIMIGATION CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) PERSONAL INJURY, (b) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (c) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (d) LOSS OF GOODWILL OR REPUTATION; (e) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (f) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL THE PROVIDER ENTITIES’ TOTAL COLLECTIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL SUBSCRIPTION FEES CUSTOMER PAID TO PROVIDER UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; PROVIDED THAT, REGARDLESS OF ANY STATUTE OR LAW, NO CLAIM OR CAUSE OF ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN TWELVE (12) MONTHS AFTER THE FACTS GIVING RISE TO THE CAUSE OF ACTION HAVE OCCURRED, REGARDLESS OF WHETHER THOSE FACTS BY THAT TIME ARE KNOWN TO, OR REASONABLY OUGHT TO HAVE BEEN DISCOVERED BY CUSTOMER. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 8.2 AND IN ANY OTHER PROVISIONS OF THIS AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE ESSENTIAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH PROVIDER WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THOSE PARTICULAR LIMITATIONS MAY NOT APPLY TO CUSTOMER.

9 - INDEMNIFICATION.

9.1 - Indemnification Scope. Customer shall indemnify, defend, and hold harmless each Provider Entity from and against any and all losses, damages, penalties, liabilities, fines, expenses, fees and costs (including attorneys’ fees and costs) (“Losses”) incurred by such Provider Entity resulting from any third-party claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise (each, a “Third-Party Claim”) that arises out of or results from, or is alleged to arise out of or result from: (a) Customer Data, including any processing of Customer Data by or on behalf of Provider in accordance with this Agreement; (b) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; (c) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.

9.2 - Indemnification Procedure. Provider Entity or Provider Entities, as the case may be, that believe it is entitled to be indemnified pursuant to Section 9.1 (Indemnification Scope) (the “Indemnitee”) will notify Customer in writing. Customer shall then promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at Customer’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. Customer shall not settle any Third-Party Claim without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If Customer fails or refuses to promptly assume control of the defense of such Third-Party Claim, the Indemnitee shall have the right, but no obligation, to defend against such Third-Party Claim, including settling such Third-Party Claim after giving notice to Customer, in each case in such manner and on such terms as the Indemnitee may deem appropriate. Customer’s failure to perform any obligations under this Section 9.2 will not relieve Customer of its obligations under this Section 9, except to the extent that Customer can demonstrate that it has been materially prejudiced as a result of such failure.

10 - MISCELLANEOUS.

10.1 - Notice. Any notice in connection with this Agreement shall be given in writing and must be: (a) hand delivered; (b) sent via first class registered mail, postage prepaid; (c) sent by an internationally recognized overnight air courier, postage prepaid, or (d) by electronic mail. Notices will be considered to have been given at the time of actual delivery in the case of hand delivery, two (2) business days after depositing in the mail as set forth above, or one (1) day after delivery to the overnight courier, or immediately upon delivery by electronic mail. Notices sent to Customer shall be sent to the physical address or email address as set forth on the Order Form for Customer. Notices given to Provider shall be sent to JobSight LLC, Attn: Contracts Team, 1342 W 200 S, Lindon, UT 84042.

10.2 - Severability; Waiver. If any provision of this Agreement is held to be invalid, illegal, or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the Parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of the Agreement will continue in full force and effect. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement: (a) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; and (b) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

10.3 - Modifications. Provider may modify this Agreement from time to time in which case Provider will update the “Last Revised” date at the top of this Agreement. If material changes are made, Provider will use reasonable efforts to attempt to notify Customer, such as by e-mail and/or by placing a prominent notice at the top of this Agreement. However, it is solely Customer’s responsibility to review this Agreement from time to time to view any such changes. The updated Agreement will be effective as of the time of posting, or such later date as may be specified in the updated Agreement. Customer’s continued access or use of the Services after the modifications have become effective will be deemed Customer’s acceptance of the modified Agreement.

10.4 - Assignment. Customer may not assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of Provider which may be withheld at Provider’s discretion. Any purported assignment, transfer or delegation by Customer shall be null and void. Provider shall have the right to assign this Agreement without Customer’s consent and without prior notice to Customer. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns.

10.5 - Injunctive Relief. Customer acknowledges and agrees that a breach or threatened breach of any covenant contained in this Agreement would cause irreparable injury, that money damages would be an inadequate remedy and that Provider shall be entitled to temporary and permanent injunctive relief, without the posting of any bond or other security, to restrain Customer from such breach or threatened breach. Nothing in this Section 10.5 shall be construed as preventing Provider from pursuing any and all remedies available to it, including the recovery of money damages from Customer.

10.6 - Force Majeure. In no event shall Provider be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemic, epidemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

10.7 - Governing Law; Dispute Resolution. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the internal laws of the State of Utah without giving effect to any choice of law rule. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. Except as set forth in this Section 10.7, each Party hereby irrevocably consents to the mandatory and exclusive jurisdiction and venue of the state and federal courts located in Salt Lake County, Utah or Utah County, Utah. Except for: (a) the right of either Party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or to prevent irreparable harm; or (b) the right of Provider to enforce its right to collect amounts due under this Agreement, any claim or controversy arising out of or relating to this Agreement or to a breach of this Agreement, shall be finally, and exclusively, settled by binding arbitration in Salt Lake County, Utah or Utah County, Utah. The arbitration shall be held before one arbitrator under the Commercial Arbitration rules of the American Arbitration Association (“AAA”) in force at that time. The arbitrator shall be selected pursuant to the AAA rules. The arbitrator shall apply the substantive law of the State of Utah, except that the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act. To begin the arbitration process, a Party must make a written demand therefor. The prevailing Party shall be entitled to receive from the other Party all attorneys’ fees and costs incurred. Any judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction in Utah. The AAA Commercial Arbitration Rules can be found at www.adr.org/Rules.

10.8 - Export Regulation. The Services utilize software and technology that may be subject to US export control laws that may prohibit or restrict access by certain persons or from certain countries or territories (“Export Controls”). Customer acknowledges that it is solely responsible for complying with all applicable Export Controls, including, without limitation, the U.S. Export Administration Regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation.

10.9 - U.S. Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.

10.10 - Independent Contractor. Provider’s relationship with Customer will be that of an independent contractor. It is agreed and understood that neither Party is the agent, representative, nor partner of the other and neither Party has any authority or power to bind or contract in the name of or to create any liability against the other in any way or for any purpose pursuant to this Agreement. Nothing contained in this Agreement shall be construed to give either Party the power to direct and control the day-to-day activities of the other, constitute the Parties as partners, joint venturers, principal and agent, employer and employee, co-owners, or otherwise as participants in a joint undertaking, or allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever.

10.11 - Entire Agreement. This Agreement, together with each Order Form hereunder, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and any Order Form, this Agreement shall control.