SiteMarker Master Subscription Agreement

1. DEFINITIONS

1.1 "Active Project" means a Project that has not been automatically inactivated or manually archived within the Service.

1.2 "Aggregated Data" means data generated by SiteMarker that is derived from Customer Data or use of the Service and has been aggregated or de-identified so that it does not identify, and cannot reasonably be linked to, Customer, its affiliates, any Authorized User, or any specific project or site.

1.3 "Authorized User" means an individual employee or contractor of Customer (or of Customer's affiliates or project partners acting on Customer's behalf) whom Customer authorizes to use the Service under Customer's account; provided that Customer may not authorize any employee or contractor of a direct competitor of SiteMarker to access or use the Service without SiteMarker's prior written consent.

1.4 "Customer Data" means data, documents, images, and other content submitted, input, or transmitted by or on behalf of Customer or its Authorized Users through the Service. Customer Data excludes Usage Data and Aggregated Data.

1.5 "Documentation" means SiteMarker's then-current user guides, help materials, and knowledge base for the Service.

1.6 "Order Form" means an ordering document or online order referencing this Agreement that is executed or accepted by the parties and specifies the Service subscription purchased, including the Project Pool, fees, and Subscription Term.

1.7 "Pilot" means a paid, fixed-term evaluation deployment of the Service purchased under an Order Form that designates it as a Pilot and governed by Sections 4.2 and 4.3.

1.8 "Project" means a discrete project workspace created within the Service corresponding to a single job site or geographically contiguous work site. Each distinct site must be set up as a separate Project.

1.9 "Project Pool" means the maximum number of concurrent Active Projects included in Customer's subscription, as specified on the applicable Order Form.

1.10 "Security Documentation" means SiteMarker's then-current description of its technical and organizational security measures, available from SiteMarker upon written request.

1.11 "Service" means SiteMarker's cloud-hosted, map-first field documentation software platform, including its web and mobile applications, made available to Customer under an Order Form. The Service excludes third-party products and services.

1.12 "Subscription Term" means the subscription period stated on an Order Form, together with any renewal periods under Section 11.2.

1.13 "Trial Service" means access to the Service provided free of charge on a trial, beta, evaluation, free-plan, or similar basis, as described in Section 4.1.

1.14 "Usage Data" means operational metrics, statistics, API call logs, latency diagnostics, and other data automatically generated through Authorized Users' interactions with and use of the Service, excluding data that identifies Customer or its end users.

2. AGREEMENT STRUCTURE; ACCEPTANCE; ORDER OF PRECEDENCE

2.1 One Set of Terms. The same terms in this Agreement govern whether Customer accepts online (click-through) or by signature on a negotiated copy. If the parties execute a written copy of this Agreement, the executed copy governs and supersedes any click-through acceptance of the same version.

2.2 Order Forms. Each Order Form incorporates this Agreement by reference and, together with this Agreement, forms a separate contract. Customer affiliates may purchase under this Agreement by entering into an Order Form that references it, in which case that affiliate is “Customer” with respect to that Order Form.

2.3 Order of Precedence. If an Order Form conflicts with this Agreement, the Order Form controls as to the commercial terms it expressly states (such as fees, Subscription Term, Project Pool, and billing terms), and this Agreement controls in all other respects. An Order Form may amend this Agreement only where it expressly identifies the section it amends. No terms contained in any Customer purchase order or similar document will apply, and any such terms are expressly rejected, even if the purchase order is accepted or processed by SiteMarker.

2.4 Versions; Updates to Policies. SiteMarker maintains a dated archive of each published version of this Agreement. The version in effect on the effective date of an Order Form governs that Order Form for its then-current Subscription Term; a later published version applies beginning with the next renewal. If the parties have executed a written copy of this Agreement, later published versions do not apply to that executed copy, which continues to govern all renewal Subscription Terms and may be amended only as set forth in Section 20.1 or replaced by a subsequently negotiated and executed agreement between the parties. This Agreement may otherwise be amended only as set forth in Section 20.1. Notwithstanding the foregoing, SiteMarker may update policies and terms that apply generally to its customers, including its privacy policy, security practices, acceptable use policies, and product documentation, provided such updates do not materially diminish Customer's rights or materially increase Customer's obligations during the then-current Subscription Term.

2.5 Website Terms; Prior Agreements. SiteMarker's website Terms of Service govern use of SiteMarker's public website; this Agreement, and not the website Terms of Service, governs Customer's access to and use of the Service. Any separately executed agreement or addendum between the parties in effect on the Effective Date continues to govern according to its terms and is not superseded by this Agreement unless the parties expressly agree otherwise in writing. For the avoidance of doubt, and unless the Parties have separately agreed in writing that a prior agreement between the Parties continues to govern, execution of an Order Form referencing this Agreement constitutes agreement to supersede any prior terms of service, addendum, or similar agreement between the parties with respect to the Service, effective as of the start date of the Subscription Term under the applicable Order Form.

3. THE SERVICE; SUBSCRIPTIONS

3.1 Subscription Grant. Subject to Customer's compliance with this Agreement and payment of applicable fees, SiteMarker grants Customer a non-exclusive, non-transferable (except under Section 20.2) right during each Subscription Term for Authorized Users to access and use the Service and Documentation for Customer's internal business purposes, up to the Project Pool stated on the applicable Order Form.

3.2 Authorized Users; Responsibility. Customer subscriptions include unlimited Authorized Users. Customer will ensure that Authorized Users use the Service in compliance with this Agreement and is responsible for all acts and omissions of Authorized Users, including any breach of this Agreement, and for maintaining the confidentiality of account credentials.

3.3 Active Projects; Overage. Customer may maintain concurrent Active Projects up to the Project Pool. If Customer exceeds the Project Pool, additional Active Projects will be invoiced at the per-project rate stated on the applicable Order Form, pro-rated for the remainder of the then-current billing period, or Customer may upgrade to a larger subscription tier by Order Form.

A Project is automatically inactivated after ninety (90) consecutive days without user activity. Customer may manually archive a Project at any time. Inactivated or archived Projects remain stored in the Service and may be viewed, but do not count against the Project Pool. Reactivating an inactivated or archived Project requires an available slot in the Project Pool. Customer may increase its Project Pool at any time under a new or amended Order Form at the then-current rates, or as stated on the applicable Order Form.

3.4 Changes to the Service. SiteMarker may modify the Service from time to time, including to add functionality, provided no such modification materially decreases the core functionality of the Service during a paid Subscription Term. Customer agrees that its purchases under this Agreement are not contingent on the delivery of any future functionality or features, or on any oral or written comments made by SiteMarker regarding future functionality or features. SiteMarker may make new products, modules, features, or functionality available from time to time. Unless expressly included in Customer's subscription on an Order Form, such new offerings are not automatically part of the Service purchased by Customer and may be subject to separate fees.

3.5 Support. Each paid subscription includes support at no additional charge. Customer may submit support requests by email to support@sitemarker.com during SiteMarker's normal business hours (Monday through Friday, U.S. Eastern Time, excluding U.S. federal holidays). SiteMarker will use commercially reasonable efforts to respond promptly and to resolve reproducible errors in the Service. SiteMarker does not offer custom support terms or dedicated support infrastructure for individual customers.

3.6 Availability. SiteMarker will use commercially reasonable efforts to make the Service available twenty-four hours a day, seven days a week, except for (a) planned maintenance, for which SiteMarker will use commercially reasonable efforts to provide advance notice and to schedule outside peak usage hours; and (b) unavailability caused by circumstances described in Section 20.6 (force majeure) or by third-party services, hosting infrastructure, internet service providers, or Customer's or Authorized Users' equipment, software, or connectivity. This Section states Customer's sole remedy structure for availability; no service credits are offered.

3.7 SiteMarker Property; Feedback. SiteMarker and its licensors retain all right, title, and interest in and to the Service, the Documentation, and all related software, technology, templates, and other intellectual property, including all modifications, improvements, and derivative works thereof. No rights are granted to Customer under this Agreement other than as expressly set forth herein. If Customer or an Authorized User provides SiteMarker with suggestions, ideas, or other feedback regarding the Service, SiteMarker may use that feedback without restriction or obligation, provided that SiteMarker will not identify Customer as the source of the feedback without Customer's consent.

3.8 External Sharing; Public Links

The Service includes features that allow Customer to share Projects and Customer Data with third parties, including by inviting individuals at permission levels Customer selects and by generating links that permit viewing by anyone who possesses them. Customer controls, and is solely responsible for, its sharing settings, its distribution of any access link, and any consequences of making Customer Data available through sharing features. Access to Customer Data through sharing features enabled by Customer, including access via a link Customer has made available, is authorized access directed by Customer, constitutes a disclosure instructed by Customer, and is not unauthorized access or a Cybersecurity Incident for purposes of Section 7 or Section 12.4. Disabling a share or link prevents future access through it but does not affect copies or exports made while access was enabled.

4. TRIALS AND PILOTS

4.1 Free Trials. If Customer registers for or is provisioned a Trial Service, SiteMarker will make the applicable Service available free of charge until the earlier of (a) the end of the trial period stated at signup or on an Order Form, if any, (b) the start date of a paid subscription covering the same Service, or (c) termination of the Trial Service by either party, which either party may effect at any time for any reason. Trial Services are limited to the features, capacity, and Project limits that SiteMarker makes available for the applicable trial or free plan, which SiteMarker may modify at any time.

4.2 Paid Pilots. Customer may purchase a Pilot under an Order Form that designates the deployment as a Pilot. The Pilot term, fees, and Project Pool are stated on the applicable Order Form. Unless the Order Form states otherwise, a Pilot does not automatically renew. If the parties agree to waive the Pilot fee in connection with a full subscription, the Order Form for the subscription may pre-date the start of the Subscription Term to the beginning of the Pilot period, in which case the Pilot is treated as part of the paid subscription from the start of the Subscription Term and Sections 4.2 and 4.3 cease to apply to it.

4.3 Terms Applicable to Trials and Pilots. Trial Services and Pilots are for evaluation purposes and not for production use; production use of the Service requires a full subscription. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT: (i) TRIAL SERVICES AND PILOTS ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTIES, SUPPORT OR AVAILABILITY COMMITMENTS, INDEMNITIES, OR INSURANCE OBLIGATIONS OF ANY KIND; AND (ii) SITEMARKER'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO A TRIAL SERVICE OR PILOT WILL NOT EXCEED, FOR A TRIAL SERVICE, ONE THOUSAND U.S. DOLLARS (US $1,000), AND, FOR A PILOT, THE PILOT FEES PAID OR PAYABLE UNDER THE APPLICABLE ORDER FORM. Sections 5 (Customer Data), 6 (Acceptable Use), and 9 (Confidentiality) apply to Trial Services and Pilots. If Customer converts to a paid subscription, Customer Data from the Trial Service or Pilot carries into the paid subscription; otherwise, data export, retention, and deletion are handled under Section 8. Pricing, terms, or concessions agreed for a Trial Service or Pilot do not amend this Agreement, do not establish precedent for, and do not apply to, any subsequent subscription.

5. CUSTOMER DATA

5.1 Ownership. As between the parties, Customer owns all right, title, and interest in and to Customer Data. SiteMarker acquires no rights in Customer Data other than the limited rights expressly granted in this Agreement.

5.2 License to SiteMarker. Customer grants SiteMarker a non-exclusive, non-transferable (except under Section 20.2) right to use, store, copy, modify, and create derivative works of Customer Data solely as necessary to provide, maintain, secure, support, and improve the Service, or as otherwise expressly permitted under this Agreement or required by law.

5.3 No Sale of Customer Data. SiteMarker will not sell Customer Data and will not use or disclose Customer Data except as necessary to provide, maintain, secure, support, and improve the Service, or as otherwise expressly permitted under this Agreement or required by law.

5.4 Aggregated Data. As between the parties, SiteMarker owns all right, title, and interest in Aggregated Data. SiteMarker may generate and use Aggregated Data for analytics, security monitoring, product improvement, model development, and other internal business purposes. Nothing in this Agreement restricts SiteMarker's rights to generate, use, and retain Aggregated Data. SiteMarker will not use Customer Data to train artificial-intelligence or machine-learning models except in the form of Aggregated Data.

5.5 Usage Data. SiteMarker may collect and use Usage Data to operate, secure, and improve the Service. SiteMarker's collection and use of personal information in connection with the Service is further described in SiteMarker's privacy policy, available on its website, which is incorporated by reference into this Agreement and may be updated in accordance with Section 2.4.

5.6 Customer Responsibilities. Customer represents and warrants that it has all rights and consents necessary to submit Customer Data to the Service and to grant the rights in this Section 5, and that Customer Data and its use as contemplated by this Agreement will not violate applicable law or third-party rights. The Service is not designed for, and Customer will not submit, protected health information, payment card data, or other categories of regulated data beyond the personal and project data reasonably necessary to use the Service.

6. ACCEPTABLE USE

Customer will not, and will not permit Authorized Users or third parties to:

• use the Service other than for Customer's internal business purposes, or in violation of applicable law;
• sell, resell, sublicense, rent, lease, or operate the Service as a service bureau or for the benefit of any third party (other than Authorized Users acting on Customer's behalf);
• copy, modify, or create derivative works of the Service; reverse engineer, decompile, or attempt to derive source code from the Service, except to the extent this restriction is prohibited by applicable law;
• circumvent or interfere with security features, access controls, or usage limits of the Service, or probe, scan, or test its vulnerability without SiteMarker's prior written consent;
• upload or transmit viruses, malware, or other harmful code, or use the Service to store or transmit infringing, defamatory, or unlawful material;
• access the Service by automated means (including scraping or bulk extraction) other than through interfaces SiteMarker makes available; or
• access or use the Service to build a competing product or service, or publish benchmarks of the Service without SiteMarker's prior written consent.

SiteMarker may suspend an Authorized User's or Customer's access on written notice if SiteMarker reasonably determines continued access would cause material harm to the Service or other customers, and will limit any suspension in scope and duration to what is reasonably necessary.

7. SECURITY; INCIDENT NOTIFICATION

7.1 Safeguards. SiteMarker has implemented and will maintain commercially reasonable administrative, technical, and organizational safeguards designed to (a) protect its systems and Customer Data from being infected with malware, malicious code, or computer viruses or compromised by third-party actors, and (b) reduce the risk of unauthorized access to Customer Data within SiteMarker's systems. SiteMarker's software has been designed and will be operated and maintained in accordance with appropriate technical, security, and organizational measures consistent with commercially reasonable industry practices designed to protect Customer Data from unauthorized access, use, or disclosure.

7.2 Security Documentation. SiteMarker will make its Security Documentation available to Customer upon written request and will not materially diminish the overall protections described in it during a paid Subscription Term.

7.3 Incident Notification. A "Cybersecurity Incident" means confirmed unauthorized access to Customer Data within SiteMarker's systems that materially impacts Customer. If SiteMarker or any of its contractors or agents becomes aware of a Cybersecurity Incident, SiteMarker will notify Customer in writing without undue delay and in no event later than seventy-two (72) hours after confirming the Cybersecurity Incident, at the security-incident notice email designated by Customer on the Order Form (or, if none, to Customer's account owner email). The notice will include a description of the Cybersecurity Incident including, to the extent known at the time, the general nature of the incident and the categories of Customer Data affected. SiteMarker will comply with applicable U.S. data protection laws to the extent they apply to SiteMarker's processing of Customer Data under this Agreement.

7.4 Scope. SiteMarker's obligations under this Section 7 apply solely to systems and data under SiteMarker's control and do not apply to Customer's systems or third-party systems not controlled by SiteMarker.

8. DATA EXPORT AND RETURN

8.1 In-Term Export. During each Subscription Term, Customer may export Customer Data using the export functionality of the Service.

8.2 Post-Termination Export. Upon Customer's written request made within thirty (30) days following expiration or termination of the applicable Order Form, Trial Service, or Pilot, SiteMarker will make Customer Data available to Customer for export in a commonly used, machine-readable format.

8.3 Deletion. Following such thirty (30)-day period, or earlier upon Customer's written request, SiteMarker will delete or de-identify Customer Data in its possession or control within sixty (60) days, except to the extent (a) retention is required by applicable law, or (b) Customer Data resides in routine backup archives, in which case such data will remain subject to the confidentiality and security obligations of this Agreement until deleted in the ordinary course of SiteMarker's backup cycle. Upon Customer's written request, SiteMarker will confirm such deletion in writing.

8.4 Aggregated Data Preserved. Nothing in this Section 8 restricts SiteMarker's rights to retain and use Aggregated Data in accordance with this Agreement.

9. CONFIDENTIALITY

9.1 Definition. "Confidential Information" means all documents, data files, information, and other materials that are proprietary to and made available by one party (the "Disclosing Party") to the other party (the "Receiving Party") in connection with this Agreement that should reasonably be recognized as confidential, including Customer Data, but excluding Usage Data and Aggregated Data, together with any information generated by the Receiving Party or its representatives that contains, reflects, or is derived from any of the foregoing. Confidential Information excludes information that: (a) is or becomes (through no improper action or inaction by the Receiving Party) generally available to the public; (b) was in the Receiving Party's possession or known by it without restriction prior to receipt from the Disclosing Party; (c) was rightfully disclosed to the Receiving Party by a third party without restriction; or (d) was independently developed by employees of the Receiving Party without use of the Disclosing Party's Confidential Information.

9.2 Protection. The Receiving Party will protect the Disclosing Party's Confidential Information with the same degree of care it uses to protect its own Confidential Information of like kind (but not less than reasonable care) and will limit access to those of its employees and contractors who need access, solely for the purposes contemplated by this Agreement, and who are bound by confidentiality obligations not materially less protective than those in this Section 9.

9.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information to the extent required by law, regulation, or court order, provided that, where legally permitted, the Receiving Party gives prompt written notice and reasonably cooperates, at the Disclosing Party's expense, in seeking protective treatment.

9.4 Equitable Relief; Reservation of Rights. Each party acknowledges that unauthorized disclosure of Confidential Information may cause irreparable harm for which monetary damages may be inadequate; the non-breaching party may seek equitable relief, including injunctive relief, in addition to other remedies available at law or in equity, subject to the limitations of liability in this Agreement. Each party retains its entire right, title, and interest, including all intellectual property rights, in and to its Confidential Information; no disclosure operates as an assignment or license except as expressly provided in this Agreement.

9.5 Survival. The obligations in this Section 9 survive termination of this Agreement for three (3) years, except with respect to trade secrets, which remain protected for so long as they qualify as trade secrets under applicable law.

10. FEES; PAYMENT; TAXES

10.1 Fees. Customer will pay the fees stated on each Order Form. Except as otherwise stated on an Order Form, subscription fees are invoiced annually in advance, and Project Pool overage fees under Section 3.3 are invoiced in arrears, pro-rated for the remainder of the then-current billing period. Fees are stated and payable in U.S. dollars.

10.2 Payment Terms. Unless otherwise stated on the Order Form, invoices are due within thirty (30) days of the invoice date. Customer will notify SiteMarker in writing of any good-faith invoice dispute within thirty (30) days of the invoice date and the parties will work promptly to resolve it; Customer will pay undisputed amounts when due. Late undisputed amounts may accrue interest at 1.5% per month or the maximum rate permitted by law, whichever is less. Customer will reimburse SiteMarker for reasonable costs incurred in collecting late undisputed amounts, including reasonable attorneys' fees, court costs, and collection agency fees.

10.3 Taxes. Fees are exclusive of taxes. Customer is responsible for all sales, use, and similar taxes, levies, and duties assessed in connection with its purchases under this Agreement, excluding taxes on SiteMarker's income, property, or employees. If Customer is a tax-exempt entity, Customer will provide SiteMarker a valid exemption certificate, and SiteMarker will not charge exempted taxes to which the certificate applies.

10.4 Suspension for Nonpayment. If undisputed amounts are more than thirty (30) days overdue, SiteMarker may, on at least ten (10) business days' prior written notice, suspend Customer's access to the Service until such amounts are paid in full. SiteMarker will promptly restore access upon payment. Suspension does not relieve Customer of its payment obligations, and SiteMarker will not be liable for any consequence of a suspension made in accordance with this Section.

10.5 No Refunds. Except as expressly provided in this Agreement (including Section 11.4), payment obligations are non-cancelable and fees paid are non-refundable.

11. TERM; RENEWAL; TERMINATION

11.1 Agreement Term. This Agreement begins on the Effective Date and continues until all Order Forms and Trial Services under it have expired or been terminated.

11.2 Subscription Terms; Renewal. Each Subscription Term is stated on the applicable Order Form. Unless the Order Form states otherwise, each Subscription Term automatically renews for successive one (1)-year periods at the then-current rates for the applicable tier, unless either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term.

11.3 Termination for Cause. Either party may terminate this Agreement or an affected Order Form by written notice if the other party (a) materially breaches this Agreement and fails to cure within thirty (30) days after receiving written notice of the breach that is clearly identified as a notice of default, or (b) becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors that is not dismissed within sixty (60) days.

11.4 Effect of Termination. Upon expiration or termination of an Order Form, Customer's right to access the Service under that Order Form ends, and data export and deletion are handled under Section 8. If Customer terminates an Order Form under Section 11.3 for SiteMarker's uncured material breach, SiteMarker will refund Customer any prepaid fees covering the remainder of the terminated Subscription Term after the effective date of termination. If SiteMarker terminates an Order Form under Section 11.3 for Customer's uncured material breach, all fees for the remainder of the Subscription Term become immediately due and payable.

11.5 Survival. Sections 1, 2.3, 3.7, 4.3, 5, 8, 9, 10 (with respect to accrued amounts), 11.4, 11.5, 12.4, 13, 14, 16, 17, 18, 19, and 20 survive expiration or termination of this Agreement.

12. WARRANTIES; DISCLAIMERS

12.1 Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement and that this Agreement is entered into by an authorized representative.

12.2 SiteMarker Warranties. SiteMarker warrants that: (a) the Service has been designed and will be operated and maintained in accordance with the safeguards described in Section 7.1; (b) SiteMarker has the necessary rights and authority to deliver the Service as set forth in any Order Form; and (c) SiteMarker will not sell Customer Data and will not use or disclose Customer Data except as necessary to provide, maintain, secure, support, and improve the Service, or as otherwise expressly permitted under this Agreement. For breach of the warranty in Section 12.2(a), Customer's exclusive remedy and SiteMarker's entire liability will be for SiteMarker to use commercially reasonable efforts to correct the non-conformity and, if SiteMarker is unable to do so within a reasonable period, for Customer to terminate the affected Order Form under Section 11.3 and receive the refund described in Section 11.4.

12.3 Professional Judgment; Location Data. The Service is a tool intended to assist licensed professionals in their work. The Service does not provide engineering, surveying, or other professional advice and must not be used as a substitute for the professional judgment of a licensed civil engineer, surveyor, or other appropriate professional. Customer is responsible for ensuring that its use of the Service complies with applicable laws, regulations, and industry standards, including those related to civil engineering, construction, and environmental practices. Location data captured or displayed by the Service reflects the precision of the capturing device and positioning method: standard mobile-device GPS typically provides precision within approximately fifteen (15) feet, and higher-precision capture (including sub-centimeter precision) requires compatible external positioning hardware. Location data in the Service is not survey-grade and does not constitute, and must not be relied upon as, a boundary, legal, or engineering survey.

12.4 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE, DOCUMENTATION, AND ALL RELATED SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE," AND EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, SITEMARKER DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND SITEMARKER ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (A) CUSTOMER'S OR AUTHORIZED USERS' ERRORS, MISTAKES, OR INACCURACIES IN USING THE SERVICE; (B) UNAUTHORIZED ACCESS TO OR USE OF THE SERVICE OR SITEMARKER'S SYSTEMS, UNLESS RESULTING FROM SITEMARKER'S FAILURE TO MAINTAIN THE SAFEGUARDS EXPRESSLY REQUIRED UNDER THIS AGREEMENT; (C) ANY INTERRUPTION, DELAY, OR CESSATION OF TRANSMISSION CAUSED BY THIRD-PARTY SERVICES OR INFRASTRUCTURE; OR (D) BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS, UNLESS CAUSED BY SITEMARKER'S BREACH OF ITS EXPRESS OBLIGATIONS UNDER THIS AGREEMENT.

12.5 Third-Party Products. SiteMarker does not warrant, endorse, or assume responsibility for any third-party product or service, including third-party products and services that integrate with or are linked from the Service, and SiteMarker is not responsible for transactions between Customer and third-party providers.

13. INDEMNIFICATION

13.1 Mutual Indemnity. Except that this Section will not be construed to require indemnification to a greater extent than permitted by applicable law, each party (the "Indemnifying Party") will indemnify, defend, and hold harmless the other party and its affiliates and their employees, directors, officers, and agents (collectively, the "Indemnified Party") from and against any and all claims, legal actions, damages, costs, liabilities, and reasonable attorneys' fees asserted by or incurred by a third party (collectively, "Third-Party Claims") that are caused by the gross negligence or willful acts of the Indemnifying Party.

13.2 Exclusions; Procedure. The Indemnified Party is not entitled to indemnification if the Third-Party Claim was caused by the Indemnified Party's own gross negligence or willful acts. A party seeking indemnity must: (a) give the Indemnifying Party prompt notice of the Third-Party Claim (except that failure to give prompt notice relieves the Indemnifying Party only to the extent it is materially prejudiced); (b) allow the Indemnifying Party to control the defense and settlement of the Third-Party Claim, provided no settlement may impose liability or an admission of fault on the Indemnified Party without its prior written consent; and (c) provide reasonable assistance in the defense, with the Indemnifying Party paying the Indemnified Party's reasonable out-of-pocket expenses.

13.3 SiteMarker IP Indemnity. In addition to Section 13.1, SiteMarker will defend Customer against any Third-Party Claim alleging that the Service, as provided by SiteMarker and used as permitted under this Agreement, infringes a United States patent, copyright, or trademark, or misappropriates a trade secret, and SiteMarker will indemnify Customer against damages, costs, and reasonable attorneys' fees finally awarded against Customer, or agreed by SiteMarker in settlement, with respect to such Third-Party Claim. If the Service is, or in SiteMarker's opinion is likely to become, the subject of such a claim, SiteMarker may, at its option and expense: (a) procure the right for Customer to continue using the Service; (b) modify or replace the affected portion of the Service so that it is non-infringing without materially decreasing its core functionality; or (c) if neither of the foregoing is commercially practicable, terminate the affected Order Form and refund any prepaid fees covering the remainder of the terminated Subscription Term. SiteMarker has no obligation under this Section 13.3 for claims arising from: (i) Customer Data; (ii) combination of the Service with items not provided by SiteMarker, where the claim would not have arisen but for the combination; (iii) modifications to the Service not made by or for SiteMarker; or (iv) use of the Service in violation of this Agreement or after SiteMarker has notified Customer to cease the allegedly infringing use. This Section 13.3 states SiteMarker's entire liability, and Customer's exclusive remedy, for third-party claims of infringement or misappropriation. The procedures in Section 13.2 apply to this Section 13.3.

13.4 Customer Indemnity. In addition to Section 13.1, Customer will defend SiteMarker against any Third-Party Claim arising from Customer Data, from Customer's sharing settings or its distribution of access links as described in Section 3.8, or from Customer's or its Authorized Users' use of the Service in breach of Section 5.6 or Section 6, and will indemnify SiteMarker against damages, costs, and reasonable attorneys' fees finally awarded against SiteMarker, or agreed by Customer in settlement, with respect to such Third-Party Claim, in each case except to the extent the Third-Party Claim was caused by SiteMarker. The procedures in Section 13.2 apply to this Section 13.4.

14. LIMITATION OF LIABILITY

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS OR LOST REVENUE, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR USE OF THE SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT FOR CUSTOMER’S OBLIGATION TO PAY AMOUNTS DUE UNDER THIS AGREEMENT, EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL AT ALL TIMES BE LIMITED TO THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO SITEMARKER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM. FOR TRIAL SERVICES AND PILOTS, THE CAPS IN SECTION 4.3 APPLY INSTEAD.

15. INSURANCE

SiteMarker will maintain during the term of this Agreement, with an insurer or insurers rated by A.M. Best & Company (or a comparable rating agency) as A-VII or better, the following policies of insurance. Upon Customer's written request, SiteMarker will provide Customer with a Certificate of Insurance issued on an "ACORD 25-S" form or its equivalent evidencing the following insurance coverage. SiteMarker is responsible for payment of all deductibles.

• Technology Errors and Omissions and Cyber Liability insurance with limits of not less than $1,000,000 per claim and $2,000,000 in the aggregate; and
• Professional Errors and Omissions coverage included within the Technology Errors and Omissions policy referenced above, with limits of not less than $1,000,000 per claim and $2,000,000 in the aggregate.

The insurance required herein will not operate to increase SiteMarker's liability beyond the limitations of liability set forth in this Agreement.

16. PUBLICITY

SiteMarker may use Customer's name and logo, and any testimonials Customer provides, on SiteMarker's website and in other marketing materials, solely for promotional purposes to identify Customer as a SiteMarker customer. Customer may revoke this permission at any time by written notice, and SiteMarker will promptly cease such use on a prospective basis.

17. U.S. GOVERNMENT RIGHTS

The Service and Documentation are "commercial items" as defined in FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation." If acquired by or on behalf of any agency of the U.S. Government, they are provided in accordance with FAR 12.212 (computer software) and FAR 12.211 (technical data) or, for Department of Defense acquisitions, DFARS 227.7202-3, and are licensed with only those rights set forth in this Agreement. This clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause addressing government rights in computer software or technical data.

18. GOVERNING LAW; VENUE

This Agreement is governed by the laws of the State of South Carolina, without regard to its conflict-of-law principles. Each party irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Charleston County, South Carolina for any dispute arising out of or relating to this Agreement, and waives any objection based on personal jurisdiction, venue, or forum non conveniens. EACH PARTY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY. ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE BROUGHT IN A PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING, AND EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO PARTICIPATE IN ANY SUCH PROCEEDING. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement. EXCEPT FOR CLAIMS FOR NONPAYMENT OR FOR INFRINGEMENT OR MISAPPROPRIATION OF A PARTY'S INTELLECTUAL PROPERTY RIGHTS, NO CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE DATE THE CLAIM FIRST ACCRUED.

19. NOTICES

All formal legal notices under this Agreement must be in writing and delivered by personal delivery, nationally recognized overnight courier, certified or registered mail (return receipt requested), or email with confirmation of receipt. Notices to SiteMarker must be sent to the address in the preamble, Attn: Legal, with an email copy to legal@sitemarker.com. Notices to Customer will be sent to the notice address or email designated on the Order Form (or, for online acceptance, to Customer's account owner contact), or such other address as a party designates in writing. Any notice of default must be clearly identified as such and is effective only upon receipt. Routine operational, support, and billing communications may be delivered electronically and do not constitute formal legal notice unless expressly designated as such.

20. GENERAL

20.1 Amendment. Except as provided in Section 2.4, this Agreement may be amended or modified only by a written instrument signed by authorized representatives of both parties.

20.2 Assignment. Neither party may assign this Agreement without the prior written consent of the other party, which will not be unreasonably withheld; provided that either party may assign this Agreement without consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any permitted assignment does not relieve the assignor of its obligations. Any assignment in violation of this Section is void.

20.3 Entire Agreement. This Agreement, together with all Order Forms and any documents expressly incorporated by reference, constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior and contemporaneous agreements, proposals, and representations, written or oral, concerning that subject matter.

20.4 Severability; Waiver. If any provision of this Agreement is held unlawful, void, or unenforceable, that provision is severed and the remainder continues in full force. A party's failure to exercise or enforce any right or provision is not a waiver of that right or provision.

20.5 Independent Contractors; No Third-Party Beneficiaries. The parties are independent contractors. This Agreement does not create a joint venture, partnership, employment, or agency relationship, and there are no third-party beneficiaries to this Agreement.

20.6 Force Majeure. Neither party is liable for any delay or failure to perform (other than payment obligations) caused by events beyond its reasonable control, including acts of God, natural disasters, war, terrorism, civil unrest, labor disputes, governmental action, utility or internet failures, or failures of third-party hosting or telecommunications providers, provided the affected party uses reasonable efforts to mitigate.

20.7 Export and Sanctions Compliance. Each party will comply with applicable U.S. export control and sanctions laws in its performance under this Agreement. Customer represents that it is not named on any U.S. government denied-party list and will not permit access to the Service in violation of any U.S. export embargo, prohibition, or restriction.

20.8 Electronic Acceptance; Counterparts. This Agreement may be accepted electronically, including by click-through, and may be executed in counterparts (including by electronic signature), each of which is deemed an original and together constitute one instrument. The parties waive any defense based on the electronic form of this Agreement.

20.9 Construction. This Agreement will not be construed against either party by virtue of having drafted it. Headings are for convenience only. "Including" means "including without limitation."