Terms of Service

Updated April 4, 2024

This FloorplanData DataForge Software License (the "DataForge Software License") is entered into by and between FloorplanData, Inc. d/b/a DataForge, a Delaware company ("DataForge") as licensor, and the licensee indicated on the Order (as defined below) to which this DataForge Software License is attached as Exhibit A (the "Licensee") for the purpose of setting forth terms and conditions pursuant to which the DataForge Software (as defined below) is made available to Licensee effective as of the date indicated in such Order (the "Effective Date").

1. NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein and in the Order, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Definitions. Capitalized terms have the meanings set forth or referred to in this Section 1 (Definitions) or as otherwise set forth in the Order:

"Agreement" means this DataForge Software License together with the Order.

"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

"Authorized User" means each of the individuals authorized by Licensee to use the DataForge Software pursuant to the Agreement.

"Confidential Information" means information in tangible and/or electronic form that relates to a party's past, present, or future research, development, business activities, products, services, trade secrets or technical knowledge and that is reasonably discernible as the confidential information of such party.

"Controlled Technology" means any software, documentation, technology or other technical data, or any products that include or use any of the foregoing, the export, re-export or release of which to certain jurisdictions or countries is prohibited or requires an export license or other governmental approval, under any law, including the US Export Administration Act and its associated regulations.

“FLOORPLANDATA DataForge Software” means the DataForge software product made available to Licensee as provided in the Agreement, including any Updates provided pursuant to this DataForge Software License.

"Documentation" means the manuals, instructions and other documents and materials that DataForge makes available to Licensee on the FloorplanData Portal (or is otherwise provided by DataForge to Licensee in any form or medium, including any deliverables produced by DataForge for Licensee in connection with the Agreement) which describe the functionality, components, features or requirements of the DataForge Software or related to its implementation or use for Licensee, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

"FloorplanData Portal" means, as of the Effective Date, the site located at dataforgelabs.zendesk.com and thereafter shall mean any successor or alternative site identified by DataForge from time-to-time.

"Permitted Use" means use of the DataForge Software as provided in the Agreement for the benefit of Licensee in the ordinary course of its internal business operations.

"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.

"Representatives" means, with respect to a party, that party's and its Affiliates' employees, officers, directors, agents, contractors, sub-licensees and legal advisors.

"Order" means the document entered into by each of DataForge and Licensee to which this DataForge Software License is attached and incorporated by reference that sets forth certain additional terms related to the DataForge Software, including fees associated with the Agreement.

"Territory" means the United States of America.

"Third-Party Materials" means materials and information, in any form or medium, that are not proprietary to DataForge, including any third-party: (a) documents, data, content or specifications; (b) other software, hardware, or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.

2. License.

2.1 License Grant. Subject to the terms and conditions of the Agreement and conditioned on Licensee's and its Authorized Users' compliance therewith, during the Term, DataForge hereby grants to Licensee a limited, non-exclusive, non-sublicensable, and non-transferable license to use the object code for the DataForge Software and the Documentation solely for the Permitted Use in the Territory (the "License Grant"). Licensee may use the DataForge Software at any number of specified locations within the Territory.

2.2 Scope of Licensed Access and Use. Licensee may install, use and run DataForge Software solely as specified in and in accordance with the terms of the Agreement and as provided the Documentation. Licensee may make a reasonable number of copies of the DataForge Software for development, testing, disaster recovery or archival purposes. Any copy of the DataForge Software made by Licensee: (a) will as between DataForge and Licensee remain the exclusive property of DataForge; (b) be subject to the terms and conditions of the Agreement; and (c) must include all copyright or other intellectual property rights notices contained in the original.

2.3 Proprietary Third-Party Materials. Licensee acknowledges and agrees that (a) certain software, intellectual property, materials, information and data incorporated into, used or otherwise made available in connection with the DataForge Software may be owned or controlled by third parties (collectively, "Proprietary Third-Party Materials") and subject to additional terms, conditions and license terms promulgated by such third parties (collectively, "Proprietary Third-Party Materials Terms"); (b) it shall (and shall cause its Affiliates and contractors) at all times comply with any Proprietary Third-Party Materials Terms; and (c) it shall be responsible for acquiring any consents and remitting any fees or other amounts associated with any Proprietary Third-Party Materials in connection with any use of the DataForge Software. Notwithstanding the foregoing or anything to the contrary set forth in the Agreement, DataForge and its licensors do not grant any right or license under, or with respect to, any Proprietary Third-Party Materials or any other materials, information, rights, data or intellectual property owned or controlled by any third party (even if embodied in, made available as part of, necessary to use or otherwise related to the DataForge Software). Descriptions of any Proprietary Third-Party Materials and the applicable third party agreements will be made available on the FloorplanData Portal (which may include identification in the Documentation).

2.4 Hosting Services. Licensee may permit the DataForge Software to be operated on infrastructure provided by a third party hosting services provider identified in the Order or otherwise approved by DataForge, provided: (a) such permission will continue only while Licensee and such hosting services provider have in place a written agreement that includes provisions consistent with the applicable terms of the Agreement prior to such access, including non-disclosure of DataForge’s Confidential Information; (b) such hosting services provider shall be permitted to use the DataForge Software solely for the business of Licensee as set forth in the Order; (c) under no circumstances may such hosting services provider use the FLOORPLANDATA DataForge Software to operate or provide processing services to any party other than to Licensee, or in connection with such hosting services provider's own business operations; and (d) Licensee hereby agrees that a breach of the Agreement by such hosting service provider shall be considered a breach to the same extent as if committed by Licensee hereunder.

2.5 Usage Data and Measures to Verify Compliance. The DataForge Software contains technological measures used by DataForge to obtain data regarding the usage of the DataForge Software and the environment in which the DataForge Software operates (collectively, “Usage Data”) and may contain additional technological measures designed to prevent unauthorized or illegal use of the DataForge Software. Licensee acknowledges and agrees that: (a) DataForge may use these and other lawful measures to determine the charges associated with Licensee’s use of the Licensed Software and to verify Licensee's compliance with the terms of the Agreement and enforce DataForge’s rights, including all intellectual property rights, in and to the DataForge Software; and (b) DataForge may deny any Person access to and/or use of the DataForge Software if DataForge believes that Person's use of the DataForge Software would violate any provision of the Agreement, regardless of whether Licensee designated that Person as an Authorized User.

2.6 DataForge Support Services. Subject to the terms of the Agreement, DataForge will use commercially reasonable efforts to provide the Support Services (as defined in Schedule A to this DataForge Software License) to the extent required to be provided by DataForge pursuant to Schedule A to this DataForge Software License and the Order.

2.7 Delivery and Installation. DataForge shall deliver and, if provided in the Order install the DataForge Software, as described on Schedule A to this to this DataForge Software License (the “Initial Installation Services” and collectively with the Support Services, the “Services”). Risk of loss of any tangible media on which the DataForge Software is delivered shall pass to Licensee on delivery if any such tangible media is used in connection with the DataForge Software.

3. Use Restrictions. Licensee shall not, and shall not permit any other Person to:

(a) copy the DataForge Software, in whole or in part;

(b) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of any DataForge Software;

(c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the DataForge Software to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;

(d) reverse engineer, disassemble, decompile, decode or adapt the DataForge Software, or otherwise attempt to derive or gain access to the source code of the DataForge Software, in whole or in part.

(e) bypass or breach any security device or protection used for or contained in the DataForge Software or Documentation;

(f) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or intellectual property rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the DataForge Software or Documentation;

(g) use the DataForge Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any Person, or that violates any applicable law;

(h) use the DataForge Software for purposes of: (i) benchmarking or competitive analysis of the DataForge Software; (ii) developing, using or providing a competing software product or service; or (iii) any other purpose that is to DataForge’s detriment or commercial disadvantage; or

(i) use the DataForge Software or Documentation other than for the Permitted Use or in any manner or for any purpose or application not expressly permitted by the Agreement.

4. Updates. Except as expressly set forth in the Agreement, neither DataForge nor any of its Affiliates shall, at any time, have any obligation to provide or cause to be provided any (a) enhancements, fixes, corrections, updates, new releases, documentation or improvements with respect to the DataForge Software (collectively, "Updates"), or (b) any maintenance, training, hosting, support or other services of any kind with respect to the DataForge Software, other as described on Schedule A to this DataForge Software License. DataForge may, in its sole discretion, make Updates (including updated Documentation) available to Licensee. Such Updates shall be at no additional charge to Licensee unless otherwise agreed by Licensee or set forth in the Documentation. All Updates that are not other Third-Party Materials, on being provided by DataForge to Licensee hereunder, are deemed DataForge Software subject to all applicable terms and conditions in the Agreement.

5. Confidentiality.

5.1 During the course of this Agreement, a party (the "Recipient") may be given access to the Confidential Information of the other party (the "Discloser"). Recipient agrees to: (a) protect Discloser's Confidential Information in a reasonable and appropriate manner to the same extent it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event less than a reasonable manner; and (b) use and reproduce Discloser's Confidential Information only to perform its obligations and exercise its rights pursuant to the Agreement. Recipient shall not, except as may be permitted under the terms and conditions of this Section 5, disclose or permit access to Confidential Information of the Discloser other than to Representatives of the Recipient who: (i) need to know such Confidential Information for purposes of the Recipient's exercise of its rights or performance of its obligations under and in accordance with the Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Recipient's obligations under this Section 5; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information of the Discloser as the terms set forth in this Section 5. Recipient shall ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 5. Confidential Information of DataForge includes the following (the "DataForge Software-Related CI"): (A) DataForge Software and Documentation (and all copies thereof), (B) all intellectual property embodied in, reading on, covered by or related to the DataForge Software and Documentation, and (C) all other proprietary or confidential technical information, specifications, pricing and other information related to the DataForge Software and Documentation.

5.2 The obligations set forth in this Section 5 shall not apply to information which: (a) was rightfully known to the Recipient without restriction on use or disclosure prior to such information's being disclosed or made available to the Recipient in connection with the Agreement; (b) was or becomes generally known by the public other than by the Recipient's or any of its Representatives' noncompliance with the Agreement; (c) was or is received by the Recipient on a non-confidential basis from a third party that, to the Recipient's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Recipient can demonstrate by written or other documentary records was or is independently developed by the Recipient without reference to or use of any Confidential Information of the Discloser. Disclosure of Confidential Information pursuant to applicable law, a subpoena or other validly issued administrative or judicial process shall not be a breach of Recipient's obligations, provided that Recipient shall provide prior notice to Discloser of such disclosure if permitted by law.

5.3 Security Systems. Licensee shall (and shall cause its Affiliates and contractors) to maintain reasonable and no less than industry-standard administrative, physical and technical security controls, technologies, information technology systems, practices and procedures designed to (a) manage, control and limit access to and use of the DataForge Software-Related CI, and (b) safeguard and protect against any unauthorized or unlawful access, use, disclosure, destruction or processing of the DataForge Software-Related CI by any Person ("Designated Security Systems"). In the event (i) Licensee discovers or is notified that any Designated Security Systems have been compromised or breached such that any sensitive or material DataForge Software-Related CI may have been accessed, disclosed or used in an unauthorized manner or (ii) there is a reasonable basis for Licensee to believe a suspected or confirmed incident of a breach, attempted breach, or impairment of any Designated Security Systems involving any unauthorized disclosure or access of any such DataForge Software-Related CI has occurred, or there has been any misplacement, improper destruction or loss thereof, Licensee shall promptly notify DataForge in writing of such event in detail and promptly cause the breach or impairment to be remedied and, at a minimum, restore and correct the Designated Security System following any discovery, knowledge or receipt of notice thereof. DataForge and Licensee expressly agree that DataForge will not be given access to personally identifiable information, protected health information, or other sensitive information in connection with the Agreement or the DataForge Software.

5.4 Equitable Relief. The parties acknowledge and agree that the provisions of this Section 5 are essential for the protection of DataForge’s legitimate business interests in the DataForge Software-Related CI and are fair and reasonable in scope and content. Further, in the event of a breach or threatened breach of this Section 5 involving any disclosure or use related to the DataForge Software-Related CI in any unauthorized manner, DataForge and its Affiliates shall suffer immediate and irreparable harm for which money damages may be difficult to calculate and/or provide inadequate compensation. Accordingly, DataForge shall be entitled without the requirement of posting a bond or other security to an injunction, restraining order or other equitable relief to enforce compliance with the provisions of this Section 5; and Licensee, on behalf of itself and its Affiliates, agrees not to oppose the granting of such relief on the basis that DataForge or its Affiliates have an adequate remedy at law; provided, however, that no specification herein of any particular legal or equitable remedy shall be deemed or construed to prohibit DataForge or its Affiliates from seeking or obtaining any other remedy under the Agreement, at law or in equity.

6. Fees and Payment.

6.1 License Fees. In consideration of the rights granted to Licensee under this Agreement, Licensee shall pay to DataForge the charges as set forth in the Agreement (the “Fees”).

6.2 Payment. Licensee shall pay all amounts due and owing under the Agreement within 30 days after the date of DataForge’s invoice therefor. Licensee shall make all payments hereunder in US dollars to the address or account specified for DataForge in the Order or such other address or account as DataForge may specify in writing from time to time. Except as expressly set forth in the Agreement, the Fees are non-refundable.

6.3 Reimbursable Expenses. Licensee shall reimburse DataForge for reasonable out-of-pocket expenses incurred by DataForge in connection with performing any on-site services as provided in DataForge’s expense reimbursement policy ("Reimbursable Expenses").

6.4 Taxes. All Fees and Reimbursable Expenses and other amounts payable by Licensee under the Agreement exclusive of taxes and similar assessments. Without limiting the foregoing, Licensee is responsible for all sales, service, 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 Licensee under the Agreement, other than any taxes imposed on DataForge’s income.

6.5 Late Payment. If Licensee fails to make any payment when due then, in addition to all other remedies that may be available to DataForge , DataForge reserves the right to charge interest on any past due amounts at a rate of the lesser of one and one-half (1.5%) percent per month or the highest rate allowed by law, and Licensee shall indemnify DataForge for all costs, including expenses and attorney's fees, incurred by DataForge in the collection of overdue payments. If such failure continues for 30 days following written notice thereof, DataForge may suspend performance the licenses set forth in the Agreement and/or the provision of the Services until all past due amounts, including interest, have been paid, without incurring any obligation or liability to Licensee or any other Person by reason of such suspension.

6.6 No Deductions or Setoffs. All Fees payable to DataForge shall be paid by Licensee to DataForge in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).

7. Audits. DataForge or its nominee (including its accountants and auditors) may, upon prior written notice, inspect and audit Licensee's use of the DataForge Software under the Agreement at any time until one year following the termination of all licenses granted by Licensee pursuant to the Agreement. All such audits shall be conducted during regular business hours and in a manner that does not unreasonably interfere with Licensee's business operations. Licensee shall make available all such books, records, equipment, information and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of DataForge with respect to such audit. DataForge shall only examine information related to Licensee's use of the DataForge Software and compliance with the Agreement.

8. Intellectual Property Rights.

8.1 Intellectual Property Ownership. Licensee acknowledges and agrees that:

(a) the DataForge Software and Documentation are licensed, not sold, to Licensee by DataForge and Licensee does not and will not have or acquire under or in connection with the Agreement any ownership interest in the DataForge Software or Documentation, or in any related intellectual property rights;

(b) DataForge and its licensor(s), if applicable, are and will remain the sole and exclusive owner(s) of all right, title and interest in and to the DataForge Software and Documentation, including all intellectual property rights relating thereto and including all intellectual property rights in all improvements, enhancements and modifications to, or derivatives of, the DataForge Software and Documentation created pursuant to the Agreement and regardless of whether created solely by DataForge or Licensee or jointly by or on behalf of DataForge and Licensee ("DataForge Derivative Works"), subject only to the limited license granted to Licensee under the Agreement;

(c) Licensee hereby unconditionally and irrevocably assigns to DataForge or DataForge’s designee its entire right, title and interest in and to any intellectual property rights that Licensee may now or hereafter have in or relating to the DataForge Software, Documentation and any DataForge Derivative Works, whether held or acquired by operation of law, contract, assignment or otherwise; and

(d) Licensee agrees that neither Licensee nor its Affiliates, contractors or Representatives shall at any time prevent, limit, exclude, assert against, block or restrict DataForge, its Affiliates or any of their respective licensees, licensors, successors and permitted assigns from developing, replicating, using, modifying, improving, acquiring or practicing the same or similar programming code, works, materials or other intellectual property embodied, practiced in, covered by, reading on, directed to or related to the DataForge Software or Documentation or any DataForge Derivative Works.

8.2 Licensee Cooperation and Notice of Infringement. Licensee shall at all times during which the DataForge Software or Documentation is licensed to it pursuant to the Agreement:

(a) safeguard the DataForge Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access;

(b) at DataForge’s expense, take all such steps as DataForge may reasonably require to assist DataForge in maintaining the validity, enforceability and DataForge’s ownership of the intellectual property rights in the DataForge Software and Documentation;

(i) any actual or suspected infringement, misappropriation or other violation of FLOORPLANDATA's intellectual property rights in or relating to the DataForge Software or Documentation; or

(ii) any claim that the DataForge Software or Documentation, including any production, use, marketing, sale or other disposition of the DataForge Software or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the intellectual property rights or other rights of any Person; and

(d) at DataForge’s sole expense, fully cooperate with and assist DataForge in all reasonable ways in the conduct of any claim, suit, action or proceeding by DataForge to prevent or abate any actual or threatened infringement, misappropriation or violation of DataForge’s rights in, and to attempt to resolve any claims relating to, the DataForge Software or Documentation, including having Licensee's employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.

8.3 Feedback. If Licensee suggests any new features, functionality, or performance for the DataForge Software that DataForge subsequently incorporates into the DataForge Software, such new features, functionality, or performance shall be, as between Licensee and DataForge , the sole and exclusive property of DataForge and shall be free from any confidentiality restrictions enforceable by Licensee that might otherwise be imposed upon DataForge.

8.4 No Implied Rights. Except for the limited rights and licenses expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to any of the DataForge Software or Documentation.

9. Termination.

9.1 The initial term of this Agreement commences as of the Effective Date and will continue in effect until expiration of the time period set forth in the Order (the "Initial Term"). This Agreement will automatically renew for consecutive time periods, each equal to the Initial Term, unless earlier terminated pursuant to any of the Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least fifteen (15) days prior to the expiration of the then-current term (each a "Renewal Term" and, collectively, together with the Initial Term, the "Term").

9.2 Termination Generally. This Agreement shall terminate as follows:

(a) DataForge may terminate this Agreement, effective on written notice to Licensee, if Licensee fails to pay any amount when due under the Order, where such failure continues more than 30 days after DataForge’s delivery of written notice thereof;

(b) Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches the Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach;

(c) This Agreement shall terminate effective immediately if DataForge ceases to have access to the Usage Data other than as a result of an act or omission of DataForge; and

(d) This Agreement shall terminate effective immediately if Licensee: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.

9.3 Effect of Termination. On the termination of the Agreement, all rights, licenses and authorizations granted to Licensee under the Agreement will immediately terminate and Licensee shall:

(a) immediately cease use of and other activities with respect to the DataForge Software and Documentation;

(b) within 30 days deliver to DataForge , or at DataForge’s written request destroy, and permanently erase from all devices and systems Licensee directly or indirectly controls, the DataForge Software, the Documentation and DataForge’s Confidential Information, including all documents, files and tangible materials (and any partial and complete copies) containing, reflecting, incorporating or based on any of the foregoing, whether or not modified or merged into other materials; and

(c) certify to DataForge in a signed written instrument that it has complied with the requirements of this Section 9.3.

9.4 Surviving Terms. The provisions set forth in the following sections of this DataForge Software License, and any other right, obligation or provision under the Agreement that, by its nature, should survive termination of the Agreement, will survive such termination: this Section 9.4, Section 1 (Definitions), Section 2.4 (Proprietary Third-Party Materials), Section 2.6 (Usage Data and Measures to Verify Compliance), Section 5 (Confidentiality), Section 6 (Fees and Payment), Section 7 (Audits), Section 8 (Intellectual Property Rights), Section 9 (Termination), Section 10 (Limited Warranties and Remedies), Section 11 (Indemnification), Section 12 (Limitations of Liability), Section 13 (Export Regulation), Section 14 (Force Majeure) and Section 15 (Miscellaneous).

10. Limited Warranty and Remedies.

10.1 Mutual Representations and Warranties. Each party represents, warrants and covenants to the other party that:

(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;

(b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses and authorizations it grants and is required to grant under the Agreement;

(c) the execution of the Agreement by its representative whose signature is set forth on the Order has been duly authorized by all necessary corporate or organizational action of such party; and

(d) when the Order is executed and delivered by both parties, the Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

10.2 Limited Warranty. Subject to the limitations and conditions set forth in Sections 10.3 and 10.4 below, DataForge warrants to Licensee that for a period of 30 days from the Effective Date (the "Warranty Period") the DataForge Software will substantially conform in all material respects to the specifications set forth in the Documentation, when installed, operated and used as recommended in the Documentation and in accordance with the Agreement.

10.3 Licensee Requirements. The limited warranty set forth in Section 10.2 applies only if Licensee: (a) notifies DataForge in writing of the warranty breach before the expiration of the Warranty Period; (b) has promptly installed all Updates to the DataForge Software that DataForge previously made available to Licensee; and (c) as of the date of notification, is in compliance with all terms and conditions of the Agreement (including the payment of all amounts then due and owing).

10.4 Exceptions. Notwithstanding any provisions to the contrary in the Agreement, any such warranty does not apply to problems arising out of or relating to:

(a) Any Updates or any portion of the DataForge Software not licensed to Licensee by DataForge pursuant to the Agreement on the Effective Date;

(b) DataForge Software that is modified or damaged by Licensee or its Representatives;

(c) any operation or use of, or other activity relating to, the DataForge Software other than as specified in the Documentation, including any incorporation in the DataForge Software of, or combination, operation or use of the DataForge Software in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Licensee's use in the Documentation;

(d) Licensee's or any third party's negligence, abuse, misapplication or misuse of the DataForge Software, including any use of the DataForge Software other than as specified in the Documentation;

(e) Licensee's failure to promptly install all Updates that DataForge has previously made available to Licensee;

(f) the operation of, or access to, Licensee's or a third party's system or network;

(g) Licensee's breach of any material provision of the Agreement; or

(h) any other circumstances or causes outside of the reasonable control of DataForge (including abnormal physical or electrical stress).

10.5 Remedial Efforts. If DataForge breaches, or is alleged to have breached, the warranty set forth in Section 10.2 above, DataForge may, at its sole option and expense, take any of the following steps to remedy such breach:

(a) replace any damaged or defective media on which DataForge supplied the DataForge Software;

(b) amend, supplement or replace any incomplete or inaccurate Documentation;

(d) replace the DataForge Software with functionally equivalent software (which software will, on its replacement of the DataForge Software, constitute DataForge Software hereunder); and/or

(e) terminate the Agreement and all license grants set forth herein and, provided that Licensee fully complies with of its post-termination obligations as set forth in Section 9 above, promptly refund to Licensee any pre-paid license fees paid by Licensee for the DataForge Software for periods following such termination.

10.6 Sole Remedy. If DataForge does not cure a warranty breach or terminate this Agreement as provided in Section 10.5 above within 30 days after DataForge‘s receipt of written notice of such breach during the Warranty Period, Licensee shall have the right to terminate this Agreement as provided in Section 9.2(b). Following such termination, and provided that Licensee fully complies with of its post-termination obligations as set forth in Section 9.3 (Effect of Termination) above, DataForge will promptly refund to Licensee any pre-paid Fees paid by Licensee for the DataForge Software for periods following such termination.

10.7 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, THE APPLICABLE LIMITED WARRANTY SET FORTH IN THIS SECTION 10 SETS FORTH LICENSEE'S SOLE REMEDY AND DATAFORGE’s ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF ANY WARRANTY APPLICABLE TO THE DATAFORGE SOFTWARE, DOCUMENTATION OR SERVICES SET FORTH IN THE AGREEMENT.

10.8 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS SECTION 10, ALL DataForge SOFTWARE, UPDATES, DOCUMENTATION, SERVICES AND OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY DATAFORGE IN CONNECTION WITH THE AGREEMENT (INCLUDING THE SCHEDULES TO THIS DATAFORGE SOFTWARE LICENSE) ARE PROVIDED "AS IS." DATAFORGE HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, DATAFORGE MAKES NO WARRANTY OF ANY KIND THAT THE DATAFORGE SOFTWARE, DOCUMENTATION OR SERVICES, OR ANY OTHER DATAFORGE OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET LICENSEE'S OR OTHER PERSONS' REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL UPDATES AND THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND, WITH RESPECT TO ANY PROPRIETARY THIRD PARTY MATERIALS, ANY REPRESENTATION OR WARRANTY OF OR CONCERNING THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH PROPRIETARY THIRD-PARTY MATERIALS.

11. Indemnification.

11.1 DataForge Indemnification. Subject to the terms of the Agreement, DataForge shall defend Licensee from and against any claim, suit, action or proceeding (each, an "Action") by a third party (other than an Affiliate of Licensee), and pay any costs or damages that may be finally awarded against Licensee, to the extent that such Action arises from an allegation that Licensee's use of the DataForge Software as provided to Licensee as of the Effective Date in the Territory in accordance with the Agreement (including the Documentation) infringes any U.S. intellectual property right of such third party in the Territory. The foregoing obligation does not apply to the extent that such Action or such costs or damages arise from any allegation of or relating to any:

(a) patent issued on a patent application published after the Effective Date;

(b) incorporation by the DataForge Software of, or combination, operation or use of the DataForge Software in or with, any technology (including any software, hardware, firmware, system or network) or service not provided by DataForge;

(c) modification of the DataForge Software other than: (i) by DataForge in connection with the Agreement; or (ii) with DataForge’s express written authorization and in strict accordance with DataForge’s written directions and specifications;

(d) failure to timely implement any Update, modification, update or replacement of the DataForge Software made available to Licensee;

(e) use of the DataForge Software after DataForge’s notice to Licensee of such activity's alleged or actual infringement, misappropriation or other violation of a third party's rights;

(f) negligence, abuse, misapplication or misuse of the DataForge Software or Documentation by or on behalf of Licensee, Licensee's Representatives or a third party;

(g) use of the DataForge Software or Documentation by or on behalf of Licensee that is outside the purpose, scope or manner of use authorized by the Agreement or in any manner contrary to FLOORPLANDATA's instructions;

(h) events or circumstances outside of DataForge’s commercially reasonable control (including any third-party hardware, software or system bugs, defects or malfunctions); or

(i) Action or costs or damages for which Licensee is obligated to indemnify DataForge pursuant to Section 11.2 (Licensee Indemnification) below.

11.2 Licensee Indemnification. Licensee shall defend DataForge from and against any Action by a third party (other than an Affiliate of DataForge), and pay any costs or damages that may be finally awarded against DataForge, to the extent that such Action arises from an allegation:

(a) that any intellectual property right or other right of any Person, or any law, is or will be infringed, misappropriated or otherwise violated by any:

(i) use or combination of the DataForge Software by or on behalf of Licensee or any of its Representatives with any hardware, software, system, network, service or other matter whatsoever that is neither provided by DataForge nor authorized by DataForge pursuant to the Agreement; or

(ii) information, materials or technology or other matter whatsoever directly or indirectly provided by Licensee or directed by Licensee to be installed, combined, integrated or used with, as part of, or in connection with the DataForge Software; or

(b) of or relating to use by or on behalf of Licensee or any of its Representatives of the DataForge Software or the Documentation that is not subject to Section 11.1 (DataForge Indemnification) and has not resulted from DataForge’s breach of the Agreement.

11.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to this Section 11 (Indemnification). The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 11.3 will not relieve the Indemnitor of its obligations under this Section 11 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

11.4 Mitigation. If the DataForge Software, or any part of the DataForge Software, is, or in FLOORPLANDATA's opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third-party intellectual property right, or if Licensee's use of the DataForge Software is enjoined or threatened to be enjoined, DataForge may, at its option and sole cost and expense:

(a) obtain the right for Licensee to continue to use the DataForge Software materially as contemplated by the Agreement;

(b) modify or replace the DataForge Software, in whole or in part, to seek to make the DataForge Software non-infringing, while providing materially equivalent features and functionality, and such modified or replacement software will constitute DataForge Software under the Agreement; or

(c) if none of the remedies set forth in Section 11.4(a) or (b) is reasonably available to DataForge, DataForge may terminate the Agreement, in its entirety or with respect to the affected part or feature of the DataForge Software, effective immediately on written notice to Licensee, in which event Licensee shall cease all use of the DataForge Software and Documentation immediately on receipt of Licensee's notice.

11.5 Sole Remedy. THIS SECTION 11 SETS FORTH LICENSEE'S SOLE REMEDIES AND DATAFORGE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE DATAFORGE SOFTWARE, DOCUMENTATION AND SERVICES) INFRINGES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

12. Limitations of Liability.

12.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL DATAFORGE OR ANY OF ITS SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY (A) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (B) LOSS OF GOODWILL OR REPUTATION, (C) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATAFORGE SOFTWARE OR OTHER THIRD-PARTY MATERIALS, (D) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (E) COST OF REPLACEMENT GOODS OR SERVICES, OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, CLIENT SHALL RETAIN RESPONSIBILITY FOR ITS COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS.

12.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF DATAFORGE AND ITS SUPPLIERS AND SERVICE PROVIDERS ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE FEES PAID TO DATAFORGE UNDER THE AGREEMENT DURING THE TWELVE MONTH PERIOD PRECEDING THE MOST RECENT EVENT GIVING RISE TO A CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

13. Export Regulation. Licensee shall not itself, or permit any other Person to, export, re-export or release, directly or indirectly any Controlled Technology to any country, jurisdiction or Person to which the export, re-export or release of Controlled Technology (a) is prohibited by applicable law or (b) without first completing all required undertakings (including obtaining any necessary export license or other governmental approval).

14. Force Majeure.

14.1 No Breach or Default. In no event will DataForge be liable or responsible to Licensee, or be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement, when and to the extent such failure or delay is caused by any circumstances beyond DataForge’s reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, epidemic or pandemic, passage of law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.

14.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, DataForge shall give prompt written notice to Licensee stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

15. Miscellaneous.

15.1 Further Assurances. On a party's reasonable request, the other party shall, at the requesting sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to the Agreement.

15.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

15.3 Notices. Any notices given pursuant to the Agreement shall be in writing, delivered via registered mail, overnight mail, courier, or personal delivery, to the address set forth in the Order for the recipient of the notice, and shall be considered given when received. Either party may change the name or address to which notices or other communications are to be sent by giving notice of such change to the other party.

15.4 Entire Agreement. This DataForge Software License, together with Order and any other documents incorporated herein or therein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of a conflict between this DataForge Software License and either the terms of the Order, the terms of this DataForge Software License shall prevail.

15.5 Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without DataForge’s prior written consent, which consent shall not unreasonably be delayed or withheld. Any purported assignment, delegation or transfer in violation of this Section 15.5 is void. This Agreement is binding on and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

15.6 No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

15.7 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

15.8 Severability. If any provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify the Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

15.9 Governing Law; Submission to Jurisdiction. The Agreement is governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Illinois. Any legal suit, action or proceeding arising out of or related to the Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Illinois in each case located in the city of Chicago and County of Cook, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. service of process, summons, notice or other document by mail to such party's address set forth in the Order will be effective service of process for any suit, action or other proceeding brought in any such court.

15.10 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

15.11 Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive and shall be interpreted as “and/or”; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, (i) references in the Agreement to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; (ii) references contained in the body of this DataForge Software License to Sections refer to the corresponding Sections of the body of this DataForge Software License; (iii) references contained in schedules, exhibits, attachments and appendices hereto to Sections refer to the corresponding Sections of such schedule, exhibit, attachment or appendix; and (iv) references in the Agreement to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The schedules, exhibits, attachments and appendices referred to herein or in the Order are an integral part of the Agreement to the same extent as if they were set forth verbatim herein.

15.12 Headings. The headings in the Agreement are for reference only and do not affect the interpretation of the Agreement.

15.13 Counterparts. The Order may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of the Agreement delivered by e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of the Agreement.

15.14 Marketing. Unless otherwise specified in the Order Form, DataForge may use the Client's name, trademarks, and logos to refer publicly to the Client as a customer of DataForge solely in connection with the Services and only during the Term. DataForge shall comply with any trademark usage requirements specified by Client.

SCHEDULE A

DataForge Software License

SUPPORT SERVICES

1. Definitions. In addition to the definitions set forth in Section 1 of the body of the DataForge Software License and in the remainder of this Schedule A, the following capitalized terms have the meanings set forth below when used in this Schedule A:

"Business Days" means Monday through Friday from 9:00 a.m. to 6:00 p.m. Central time, excluding DataForge-recognized holidays.

"Business Hours" means each consecutive 60 minute period occurring Monday through Friday from 9:00 a.m. to 6:00 p.m. Central time, excluding DataForge-recognized holidays.

"Error" means a reproducible failure of the DataForge Software to perform in substantial conformity with the specifications set forth in the Documentation, whose origin can be isolated to a single cause.

"Incident" means a support request that begins when a Licensee Technical Contact (as defined below) contacts DataForge to report one specific Error and ends when DataForge either resolves the Error (including by implementing a reasonable workaround) or determines that the Error cannot be resolved.

"Remote Services" means the delivery of Support DataForge remotely over the internet through the use of Remote Access Software that DataForge installs on Licensee's systems.

"Respond" means DataForge’s initial communication with Licensee, whether by telephone, e-mail or otherwise, acknowledging Licensee's request for Support Services in connection with a specific Error. "Response" has a correlative meaning.

"Severity Level One Incident" means an Error that causes the production version of the DataForge Software to not operate such that normal operation is not possible resulting in a critical impact to Licensee's business operations Production system.

"Severity Level Two Incident" means an Error that results in the production version of the DataForge Software functionality in a materially degraded or restricted capacity resulting in significant aspects of Licensee's business operations being materially degraded.

"Severity Level Three Incident" means an Error that impairs the performance of minor functionality of the production version of the DataForge Software or results in a development issue, but does not substantially affect Licensee's business operations.

"Severity Level Four Incident" means a request for information or request for an enhanced feature to the DataForge Software.

2. Support Services.

(a) Subject to the terms and conditions of the Agreement, and conditioned on Licensee's and its Representatives' compliance therewith, during the Term, DataForge will use commercially reasonable efforts to provide DataForge’s standard customer support services for the DataForge Software to Licensee as described in this Schedule A (the "Initial Support Services") on Business Days. The Order will specify whether Licensee has purchased “Business” or “Enterprise” level for the Initial Support Services or, if not so specified, Business level will apply. The following Table 1 indicates the differences between Business and Enterprise level Initial Support Services:

Table 1 – Business and Enterprise Support Levels

FEATURE

Business

Enterprise

STANDARD SUPPORT SEVERITY 1

Production system is down or severely impacted such that routine operation is impossible

1st contact Response by the end of the Business Day following DataForge’s receipt of Licensee's notification during Business Hours

1st contact Response within 4 Business Hours of DataForge’s receipt of Licensee's notification during Business Hours

STANDARD SUPPORT SEVERITY 2

Production issue where the system is functioning but in degraded or restricted capacity

1st contact Response by the end of the Business Day following Business Day of DataForge’s receipt of Licensee's notification during Business Hours

1st contact Response within 1 Business Day of DataForge’s receipt of Licensee's notification during Business Hours

STANDARD SUPPORT SEVERITY 3

Issue where minor functionality is impacted or a development issue occurs

1st contact Response within 3 Business Days of DataForge’s receipt of Licensee's notification during Business Hours

1st contact Response within 1 Business Day of DataForge’s receipt of Licensee's notification during Business Hours

STANDARD SUPPORT SEVERITY 4

Request for information or feature request with no impact on business operations

Not applicable

DataForge SLACK CHANNEL

Per Licensee dedicated Slack channel for informal communication between the teams, such as basic questions and information exchange. The Slack channel is not covered by any Response times set forth for Support Services.

Yes

ARCHITECT SUPPORT FOR DataForge CONFIGURATION

Prioritized access to DataForge’s DataForge technical specialists for troubleshooting problems using the DataForge Software and Services.

Up to 2 hours/month

Up to 4 hours/month

(b) During the Term, DataForge will use commercially reasonable efforts to Respond to Incidents reported by a Licensee Technical Contact within the applicable timeframes set forth in Table 1

(c) DataForge may, in its sole discretion, change any aspect of Initial Support Services or its performance thereof on 60 days' written notice to Licensee (the Initial Base Support Services as so modified from time-to-time, the "Support Services").

(d) DataForge will provide Licensee with an email address for use with issues involving the DataForge Software. The Support Services will consist of email support to: (i) clarify functions and features of the DataForge Software; (ii) clarify the Documentation; and (iii) provide error verification, analysis and correction to the extent commercially practical. Support Services will be provided remotely from the facilities of DataForge or its subcontractors.

(e) DataForge may, in its discretion, perform any of the Support Services by or through its subcontractors.

(f) Support Services will provided only with respect to DataForge Software installed and operating at Licensee's (including its authorized third party hosting services provider's) sites in the Territory.

(g) DataForge shall have no obligation to provide any services pursuant to this Agreement other than as expressly set forth in this Schedule A or the Order.

3. Remote Services. Licensee acknowledges and agrees that DataForge may provide Remote Services to Licensee to assist in analyzing and Resolving any Incident. Licensee agrees to provide DataForge with access to Licensee's systems to install and use remote access software ("Remote Access Software") necessary for DataForge to provide the Remote Services to Licensee. The Remote Access Software contains technological measures designed to collect and transmit to DataForge certain diagnostic, technical, usage and related information, including information about Licensee's computers, systems, network and any Third-Party Materials, relating to or derived from Licensee's use of DataForge Software. Licensee acknowledges and agrees that: (a) DataForge may collect, maintain, process and use this information in the course of performing the Services under the Agreement; and (b) all or portions of the Remote Access Software may remain on Licensee's systems after an Incident is Resolved.

4. Licensee Obligations.

(a) Licensee shall designate and maintain throughout the Term individuals to serve as its primary point of contact for day-to-day communications, consultation and decision-making regarding the Support Services (each, a "Licensee Technical Contact"). The Licensee Technical Contacts shall be the sole contact(s) between Licensee and DataForge in connection with day-to-day matters relating to the provision of Support Services and be responsible for reporting Incidents, providing day-to-day consents and approvals on behalf of Licensee, and communicating with and providing timely and accurate information and feedback to DataForge in connection with the Support Services. Licensee shall ensure its Technical Contact(s) have the requisite organizational authority, skill, experience and other qualifications to perform these duties.

(b) Licensee shall promptly notify DataForge of any Error, provide DataForge with reasonable detail of the nature and circumstances of the Error, and reasonably cooperate with DataForge in reproducing such Error.

(c) Licensee shall use the DataForge Software solely in accordance with the terms and conditions set forth in the Agreement and the Documentation.

(d) Except as expressly set forth in the Order, Licensee shall set up, maintain and operate in good repair and in accordance with the Documentation all environmental conditions and components, including all networks, systems and hardware, in or through which: (i) the DataForge Software operates; and/or (ii) the Licensee accesses or uses any of the Support Services.

(e) In connection with the performance of the Support Services, Licensee shall provide DataForge’s personnel with all such cooperation and assistance as they may reasonably request, or otherwise may reasonably be required, to enable DataForge to perform its obligations (including the provision of the Support Services), and exercise its rights, under and in accordance with the terms and conditions of the Agreement, including:

(i) reasonable, uninterrupted access to the DataForge Software and Licensee's premises, systems, networks and facilities as requested by FLOORPLANDATA;

(ii) a safe working environment at Licensee's premises if the personnel of DataForge or its subcontractors provide Support Services from such premises (for clarity, DataForge has no obligation to provide Support Services from Licensee’s premises);

(iii) reasonable access to the appropriate Licensee personnel, including network, systems, operations and applications personnel;

(iv) all necessary authorizations and consents, whether from third parties or otherwise, in connection with any of the foregoing; and

(v) DataForge shall be entitled to rely on all Client decisions and approvals made in relation to the Agreement.

(f) Licensee agrees to back up all data, files and information prior to the performance of any Support Services and hereby assumes sole responsibility for any lost or altered data, files or information.

(g) Licensee shall provide DataForge with all information reasonably requested by DataForge from time to time relating to Licensee's use of the DataForge Software and Support Services, including information on Licensee's hardware, network, systems and any related Third-Party Materials.

(h) Except as otherwise specified in the Agreement, Licensee must run only the current release level of the DataForge Software that DataForge has made available to its customers. Licensee shall install, or cause to be installed, all Updates as soon as reasonably possible from the date they are made available by DataForge .

5. Limitations.

(a) DataForge has the sole right to determine, in its discretion what constitutes an Incident and when an Incident is deemed to be resolved.

(b) DataForge will use commercially reasonable efforts to Respond within the applicable Response time provided in this Schedule A, but does not guarantee that it will be able to Respond within that specific time period or that any Incident will be resolved.

(c) DataForge is not responsible or liable for any delay or failure of performance caused in whole or in part by Licensee or its contractors.

(d) DataForge has no obligation to provide Support Services relating to Errors that, in whole or in part, arise out of or result from any of the following:

(i) DataForge Software, or the media on which it is provided, that is modified or damaged by Licensee or any third party;

(ii) any operation or use of, or other activity relating to, the DataForge Software other than as specified in the Documentation, including any incorporation in the DataForge Software of, or combination, operation or use of the DataForge Software in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Licensee's use in the Documentation;

(iii) any Third-Party Materials

(iv) any negligence, abuse, misapplication or misuse of the DataForge Software other than by DataForge’s personnel, including any Licensee use of the DataForge Software other than as specified in the Documentation;

(v) any failure to meet the requirements of Section 5 of this Schedule A or other requirements of the Agreement, including Licensee's failure to promptly install any Update that DataForge has previously made available to Licensee;

(vi) the operation of, or access to, Licensee's or a third party's system or network;

(vii) any relocation, installation or integration of the DataForge Software other than by DataForge ;

(viii) any beta software or software that DataForge makes available for testing or demonstration purposes or temporary software modules or software;

(xi) any breach of or noncompliance with any provision of the Agreement by Licensee or any of its Representatives; or

(x) any event outside the reasonable control of DataForge (including abnormal physical or electrical stress).

(e) Remedial Fees. If an Error is falsely reported by or on behalf of Licensee, or the cause of any Error or system problem is other than the DataForge Software (including any Error described above in this Section 5), Licensee shall pay DataForge’s standard hourly rates then in effect for any Support Service provided to investigate or attempt to resolve such Error or problem.

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