Extended Technical Support Agreement

By executing a price quote or similar document (“Quote”) subject to this Extended Technical Support Agreement (“Support Agreement”), Phase IV Engineering, Inc., a Colorado corporation (“Phase IV”) and the customer listed in the applicable Quote (“you,” “your” or “Customer”) agree to be bound by the terms and conditions set forth below. This Support Agreement applies to technical support services (including but not limited to password reset and product manual re-send requests) for any Product that was purchased more than one (1) year before the effective date of the Quote. Customer and Phase IV are each referred to as a “Party” and, collectively, the “Parties”.

By purchasing or using the Support Services (defined below), you agree that the terms and conditions outlined in this Support Agreement govern all Support Services. Your use of the Support Services is also subject to Phase IV’s applicable terms that can be found at https://www.phaseivengr.com/about-us/phase-iv-terms-of-purchase-and-software-license/ (the “Policies”). This Support Agreement and the Policies, as applicable, constitute the entire agreement between Customer and Phase IV with respect to the Support Services and supersedes all prior oral and written proposals and communications regarding any Support Services. This Support Agreement controls in the event of a conflict with any Policies.

1. • “Business Day” means any day other than a Saturday, a Sunday, or any other day on which banks in Colorado may, or are required to, remain closed.
   • “Defect” means any verifiable and reproducible failure of the Product to materially conform to the Specifications that is validated by Phase IV, unless such failure is caused by (i) Customer’s failure to implement in a timely manner Software upgrades or updates to the Product made available to Customer by Phase IV; (ii) a force majeure event; (iii) acts of government; (iv) misuse or abuse of the Product; (v) modifications of or to any part of the Product by any party other than Phase IV; or (vi) accident or damage.
   • “Hardware” means the Phase IV-branded hardware products, purchased from Phase IV. For clarity, Software may be included with or embedded in Hardware (but is not included within the scope of Hardware).
   • “Product(s)” means the Hardware, the Software, and/or any combination thereof.
   • “Replacement Product” means, at Phase IV’s sole discretion, a Product of the same Product model or a product of equivalent fit, form, and function.
   • “Return Location” means the location specified by Phase IV for Suspect Hardware (as defined in Section 4) returns.
   • “Software” means any object or binary code or firmware, any accompanying documentation, and any upgrades or updates therefor, that are provided by Phase IV and that are either (i) included with or embedded in the Hardware, or (ii) provided as a separate Phase IV-branded software product.
   • “Specifications” means the applicable Phase IV-published Product specifications as listed at https://www.phaseivengr.com/sensor-system-products/.
   • “Support Services” means basic support provided by Phase IV for the Products.

• “Third-Party Products” means any third-party hardware, services or software not purchased through Phase IV and not included in a Quote.

2. Support Services.
   • If you believe a Product is experiencing a Defect, you may contact the Phase IV technical support team (“Support Team”) as specified in https://www.phaseivengr.com/about-us/support. After the Support Team has confirmed that the Product is covered by this Support Agreement, the Support Team will provide the Support Services set forth in this Section 2.
   • Support Services. The Support Team will use commercially reasonable efforts to respond to requests for Support Services within two (2) Business Days of Phase IV’s receipt of the request, provided that Customer used the proper reporting channels as required under Section 1. The Support Team will use commercially reasonable efforts to resolve such requests, however Phase IV does not guarantee that any Support Service request will be resolved within any period of time.
   • Gaps in Support Services. Pricing for this Support Agreements is based on the extension of an existing support plan. If your prior Support Services have expired and you wish for them to be renewed, you may be subject to additional charges to reflect the cost of previous years of unpaid support. Customers who purchase Support Services after a support agreement has expired will be provided with applicable software and firmware updates.
   • Customer agrees that Replacement Product may be refurbished Product. If the Support Team confirms the Defect in Hardware (each such Product, “Suspect Hardware”), and approves the return of the Suspect Hardware, then the following process will apply:
     • Rapid Product Replacement. If Customer has purchased Rapid Product Replacement as evidenced by the Quote, then the terms of this Section 4.1 apply. You must contact the Support Team before for approval of a return of the Suspect Hardware before 2:00pm Mountain time. Provided that Phase IV has received timely notification of the return request, then Phase IV will send a Replacement Product to you during the next Business Day. Customer will not be invoiced for any costs associated with shipping the Replacement Product. Within five (5) Business Days of your receipt of the Replacement Product, you must return the Suspect Hardware to the Return Location at your own expense (including all taxes, duties, fees or other charges incurred in connection with return of the Suspect Hardware). Phase IV is not liable for any delays, loss or damage to the Suspect Hardware or the Replacement Product in transit.
     • Product Replacement. If Customer has not purchased Rapid Product Replacement as evidenced by the Quote, then the terms of this Section 4.2 apply. You must return the Suspect Hardware to the Return Location at your own expense (including all taxes, duties, fees or other charges incurred in connection with return of the Suspect Hardware). Phase IV will then send a Replacement Product to you within ten (10) Business Days of Phase IV’s receipt of the Suspect Hardware. Phase IV is not liable for any delays, loss or damage to the Suspect Hardware or the Replacement Product in transit.
   • If a Support Team member confirms a Defect in Software, then Phase IV will use commercially reasonable efforts to make available to Customer a correction or workaround for the Defect, provided that the Defect occurs when the Software is used within normal operating conditions and as permitted in the Policies. From time to time Phase IV and/or its licensors release updates for the Software, and may notify you of their availability. You are responsible for periodically checking the informational website at https://www.phaseivengr.com/about-us/support/ for the availability of updates. You shall download and apply all recommended updates to the Software as updates are released, in a timely way. Phase IV and/or its licensors may not support Software that is not at the current version. Phase IV disclaims all liability for data loss, viruses, third-party infringement, and all other errors that may arise in the outdated version of the Software after Phase IV has provided an update to you. Phase IV and/or its licensors may, in their sole discretion, make updates and other services available only to customers who have current maintenance subscriptions.
3. Hours of Availability. The Support Team is available to receive requests for Support Services from 9:00 AM to 4:00 PM Mountain time.
4. Additional Services. Any additional services provided by Phase IV to Customer beyond Support Services are governed by a separate agreement.
5. Terms of Purchase
   • Customer will pay Phase IV all fees and expenses for the Support Services as listed on the applicable Quote. Customer will make all payments for the Support Services in U.S. dollars within thirty (30) days of the date of the invoice.
   • Additional Taxes and Fees. The fees exclude all applicable sales, use, and other taxes, and all applicable export and import fees, customs duties and similar charges attributable to any use by Customer of the Support Services. Customer shall pay for all applicable taxes and fees assessed or imposed upon the Support Services provided or the amounts charged under this Support Agreement. For the avoidance of doubt, Customer is not responsible for payment of
   • Non-paymen If Customer fails to make any payment within ten (10) days of the due date of the invoice, then Phase IV may charge interest on the past due amount at the higher of a rate of 3% per month or the highest rate permitted under applicable law, and Customer will reimburse Phase IV for all reasonable costs that Phase IV incurs when collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees. No delay or failure of Phase IV to exercise any right or remedy under this Support Agreement operates as a waiver thereof. Customer agrees that any non-payment may result in immediate termination of the Support Services.

7. Customer may at its sole discretion renew this Support Agreement for an additional one (1) year period (each, a “Renewal Period” and together with the Initial Period, the “Term”) by contacting Phase IV at least thirty (30) days before the end of the Initial Period to confirm the renewal.
8. Either Party may terminate this Support Agreement if the other Party commits a material breach and the breach is not cured within thirty (30) days of receipt of a detailed written notice from the non-breaching Party. The Parties may terminate this Agreement or the applicable Quote at any time upon mutual written agreement. Upon expiration of the Term or termination of this Support Agreement, Phase IV will no longer administer Support Services to you.
9. Third-Party Products & Warranties. Except as agreed to in writing between Customer and Phase IV, Phase IV disclaims all liability for Third-Party Products. In the event of an issue with a Third-Party Product, Customer shall look exclusively to the third party provider for any damages or liability with respect to the provision of such Third-Party Products.

• Customer acknowledges that Phase IV’s performance and delivery of the Support Services are contingent upon Customer’s timely decision-making, notification of relevant issues or information, and granting of approvals and permissions. Customer shall promptly obtain and provide to Phase IV any required approvals or consents necessary for Phase IV’s timely performance of the Support Services.
• Customer shall cooperate with and follow the instructions given by the Support Team. This includes but is not limited to using reasonable efforts to provide a sufficient amount of information for problem diagnosis prior to Phase IV providing a resolution or Replacement Product. This may require you to install certain hardware or software to facilitate the Support Services.
• Customer shall provide remote access to Software and, to the extent possible, Hardware, for troubleshooting and problem diagnosis. If Customer refuses this option, Phase IV reserves the right to charge for any Support Service rendered on-site which may have reasonably been provided remotely. All charges would be at the then-current rate for Support Service.

11. In the performance of the Support Services, Customer and Phase IV may have access to or be exposed to confidential information of the other Party. Any confidential information shall be used by the receiving Party only as necessary for the performance of this Calibration Support Agreement and shall not be disclosed to any third party unless such disclosure is to personnel of Phase IV or Customer or to third parties with the prior notice and consent of the disclosing Party, and in all events only on a “need-to-know” basis in connection with its performance of this Calibration Support Agreement. No disclosure will be made to any person unless the person who receives the confidential information has first executed a confidentiality agreement that protects the confidential nature of the confidential information. Phase IV’s third-party support provider may from time to time have access to Customer’s confidential information. Phase IV warrants that such third-party personnel are bound by obligations of confidentiality.
12. Limited Warranty & Limitation of Liability
    • Limited Warranty. Phase IV warrants and represents that (i) the Support Services will be performed in a good, workmanlike and professional manner in accordance with industry standards and practices, and (ii) title to all hardware and materials furnished by Phase IV in accordance with this Support Agreement shall be good and clear title, free and clear of all liens and encumbrances.
    • Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 1, THE SUPPORT SERVICES ARE PROVIDED “AS IS” AND PHASE IV HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PHASE IV SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PHASE IV MAKES NO WARRANTY OF ANY KIND THAT THE SUPPORT SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S, AN AUTHORIZED USER’S, OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY RESULTS OBTAINED FROM THE SUPPORT SERVICES DO NOT COMPLETELY SUBSITITUTE HUMAN SUPERVISION AND JUDGMENT AND THEREFORE CUSTOMER SHALL ULTIMATELY BE SOLELY RESPONSIBLE FOR ANY ACTIONS TAKEN BY ITS EMPLOYEES, CONTRACTORS OR AGENTS WHO USE THE PRODUCTS.
    • LIMITATION OF LIABILITY. PHASE IV AND CUSTOMER SHALL NOT BE LIABLE TO ONE ANOTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE OR LOST DATA ARISING OUT OF THIS SUPPORT AGREEMENT. CUSTOMER’S EXCLUSIVE REMEDY AND PHASE IV’S ENTIRE LIABILITY IN CONTRACT, TORT, NEGLIGENCE INDEMNITY OR OTHERWISE UNDER THIS SUPPORT AGREEMENT IS THE REPAIR OR EXCHANGE OF ANY PRODUCT OR PART THEREOF WHICH IS INOPERABLE. IF PHASE IV IS UNABLE TO MAKE SUCH REPAIR OR EXCHANGE, THEN PHASE IV’S ENTIRE LIABILITY SHALL BE CUSTOMER’S ACTUAL DAMAGES NOT TO EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO PHASE IV DURING THE APPLICABLE INITIAL PERIOD OR RENEWAL PERIOD (I.E. THE TERM WHEN THE DEFECT WAS NOT REMEDIED) OF THIS SUPPORT AGREEMENT.
13. Each Party agrees to defend, indemnify and hold harmless the other Party from any third-party claim or third party action for personal bodily injuries, including death, resulting from the indemnifying Party’s gross negligence or willful misconduct in the performance or non-performance of this Support Agreement. This Section states each Party’s exclusive remedies for any third-party claim or action, and nothing in this Support Agreement or elsewhere will obligate either Party to provide any greater indemnity to the other.
14. Important Additional Terms.
    • Sections 1, 6, 7, 8, 11, 12.3, 13, 14 survive any termination or expiration of this Support Agreement.
    • Phase IV may use Customer’s name and may disclose that Customer has entered into this Support Agreement. Phase IV shall not indicate that Customer endorses Phase IV’s Products without prior written permission from Customer.
    • Entire Agreement. This Support Agreement, together with any other documents referenced herein, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Support Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
    • All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and use one of the following methods, each of which for purposes of this Support Agreement is a writing: in person; first class mail with postage prepaid; Express Mail, Registered Mail, or Certified Mail (in each case, return receipt requested and postage prepaid); internationally recognized overnight courier (with all fees prepaid); or email. If Notice is given by e-mail, it must be confirmed by a copy sent by any one of the other methods.
    • Amendment and Modification; Waiver. No amendment to or modification of this Support Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Support Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Support Agreement will operate or be construed as a waiver thereof; nor will 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.
    • Force Majeure. Except for Customer’s payment obligations, in no event shall either Party be liable to the other Party, or be deemed to have breached this Support Agreement, for any failure or delay in performing its obligations under this Support Agreement when (i) such Party’s performance is prevented or delayed by an act or event (other than economic hardship, changes in market conditions, insufficiency of funds, or unavailability of equipment and supplies) that is beyond its reasonable control and could not have been prevented or avoided by its exercise of due diligence; and (ii) such Party gives written notice to the other Party, as soon as practicable under the circumstances, of the act or event that so prevents such Party from performing its obligations.
    • If any provision of this Support Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Support Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Support 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.
    • Governing Law. The laws of the State of Colorado (excluding any laws that direct the application of another jurisdiction’s law) govern all matters arising out of or relating to this Support Agreement and all of the transactions it contemplates, including its validity, interpretation, construction, performance, and enforcement. Customer and Phase IV will attempt to resolve any claim, or dispute or controversy relating to this Support Agreement, (a “Dispute”) through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. If such Dispute cannot be resolved through face-to-face negotiation or within sixty (60) days from the date of engaging a mutually agreed upon mediator, any litigation that is initiated shall be filed in the state or federal courts as applicable located in Boulder, Colorado or Denver, Colorado, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    • Phase IV may assign or transfer any of its rights or obligations under this Support Agreement to a third party without the express written consent of Customer; however, Customer may not assign or transfer any of its rights or obligations under this Support Agreement to a third party without the express written consent of Phase IV, such consent not to be unreasonably delayed, conditioned or withheld. Any assignment, delegation or transfer for which consent is required hereby and which is made without such consent given in writing will be void.
    • Export Regulation. The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
    • Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
    • Limitation Period. Neither Party may institute any action in any form arising out of this Support Agreement more than two (2) years after the cause of action has arisen, or in the case of nonpayment, more than two (2) years from the date of last payment.