Phase IV Terms of Purchase and Software License

TERMS OF PURCHASE AND SOFTWARE LICENSE

This Terms of Purchase and Software License (“Agreement”) is a legal agreement between you (“you,” “your” or “Customer”) and Phase IV Engineering, Inc., a Colorado corporation (“Phase IV”). By either installing the software (“Software”), executing a price quote or similar document (“Quote”), clicking on an acceptance button during purchase from the Phase IV website, or using the Software, or sensors or other products (“Hardware”) purchased from Phase IV, you agree to be bound by the terms and conditions set forth below. Customer and Phase IV are each referred to as a “Party” and, collectively, the “Parties”

1. Grant of License.
   • License Grant for Software. Subject to the terms and conditions in this Agreement, Phase IV grants to Customer a limited, non-exclusive, non-sublicensable, non-assignable (except as permitted under Section 9), and non-transferrable (except as permitted under Section 1.3) license during the Term to use the Software for its internal business purposes. For purposes of this Agreement, “Authorized User” means an employee or contractor of Customer who Customer permits to access and use the Software pursuant to Customer’s license hereunder. Customer shall not exceed the total number of Authorized Users set forth in the applicable Quote, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the license fees payable hereunder. Customer shall not use the Software for any purposes beyond the scope of the license granted in this Section.
   • Reservation of Rights. Phase IV reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Products.
   • Transfer of License. Licenses for Software are non-transferable between parties except upon written permission in advance from Phase IV and/or its licensors. You may transfer a license for Software from one computer (or server) to another, provided that the license is removed from the original computer first, only by means of using the deactivation or “remove license” feature located within the Software itself. Any other method of license transfer is prohibited. You agree to allow Phase IV and/or its licensors to control license movement. Should a computer become inoperable to the extent that a Software license cannot be deactivated, you must contact Phase IV to have your license reset. Phase IV limits the number of license resets per calendar year to three (3) resets per single license. Should a license need a fourth reset in a calendar year, you must purchase a new license to replace the lost license. You shall not repackage, resell, or distribute the Products (as defined in Section 1) unless authorized to do so in writing by Phase IV.
   • You may not install or use the Products on or in conjunction with computers that are connected to life-saving or life-supporting medical equipment, nor on or in conjunction with any equipment used in the production or administering of drugs or breathable gasses, nor on or in conjunction with any equipment that, through malfunction or misuse, could directly or indirectly cause physical injury or death. You shall not reverse engineer, decompile or disassemble the Products. You shall not analyze the Products, their data files, or transmission protocols in an attempt to discover its systems and methods of operation. You shall not communicate to others any discovery of technical procedures, systems and methods, or protocol of the Products. You hereby agree that the Products do not infringe on any patent, copyright, trademark, or other intellectual property rights under your control either directly or indirectly, or under the control of any company or other entity to which you report. You agree to hold harmless Phase IV and/or its licensors in any intellectual property dispute that might arise from the discovery or disclosure of such information by you as a result of a violation of this paragraph.
2. Phase IV shall sell to Customer, and Customer shall purchase from Phase IV, the applicable Hardware in the quantities and at the prices set forth in your order. Phase IV shall ensure that the Hardware is delivered to Customer within a reasonable time after the order is submitted, subject to availability of the Hardware. Shipment of the Hardware will be FOB Phase IV facility. Phase IV reserves the right to ship the Hardware by any method. Phase IV is not liable for any delays, loss or damage to the Hardware in transit.
3. Installation, Support, and Updates.
   • You are solely responsible for the installation of the Software and Hardware (collectively, the “Products”), and for the proper installation, configuration, and operation of any supporting software or hardware and other services upon which the Products rely. The Products are delivered to you with certain default settings which may not be appropriate for all computers. You are responsible for selecting the correct settings for your server, and clients, as well as any other software or operating system.
   • Phase IV provides technical support (including but not limited to password reset and product manual re-send requests) to Customer via telephone and email at no additional cost for one (1) year from the date that each Product is purchased. Phase IV does not provide support for application-specific issues other than for the Software supplied by Phase IV. After the one (1) year period, Phase IV will cease providing support except upon the Parties’ execution of an extended support agreement. Pricing for such extended support agreements is based on the extension of an existing support plan. If your 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.
   • 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.
   • Interruption of Service. Phase IV and its suppliers are not liable for any temporary delay, outages or interruptions of the Software.
4. Terms of Purchase.
   • Customer will pay Phase IV all fees and expenses for the Products as listed on the applicable Quote. Customer will make all payments for the Products 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 Products. Customer shall pay for all applicable taxes and fees assessed or imposed upon the Products provided or the amounts charged under this Agreement, exclusive of Phase IV net income taxes.
   • Non-payment. 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 Agreement operates as a waiver thereof.
5. 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 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 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.
6. Intellectual Property Ownership.
   • Software and Services. Customer acknowledges that, as between Customer and Phase IV, Phase IV owns all right, title, and interest, including all intellectual property rights, in and to the Software. The Software is licensed, and not sold to Customer.
   • Title to the Hardware and risk of loss or damage in transit or after passes to Customer on Phase IV’s delivery of the Hardware to a common carrier for shipment.
   • Customer owns all right, title, and interest in and to the data that is transmitted through the Products (“Data”). Phase IV shall support the hosting of certain Data for one (1) year after such Data is created. During that year, you may download the Data through the dashboard at any time using the “Data Download” feature. After such one (1) year period, Phase IV may delete the Data. Customer grants Phase IV the right to access Customer’s Data or account for Phase IV’s internal purposes. Phase IV will not share personally-identifiable (with respect to Customer and/or any individual) Data with any third-party without Customer’s written consent.
   • Data Security. Phase IV will maintain reasonable administrative, technical and physical safeguards which are consistent with industry standards to protect the security, confidentiality and integrity of, and to protect against threats or hazards to the integrity of, and the unlawful, intentional, unauthorized or accidental destruction, loss, alteration, theft, misappropriation, disclosure, access or use of the Data.
   • Reports and Statistics. Subject to the terms of this Agreement, the reports provided to Customer through the dashboard will be owned by Customer. Phase IV owns all right, title, and interest in and to the aggregated, anonymized statistics about Customer’s use of the Products that are not personally-identifiable with respect to Customer and/or any individual (“Statistics”). Phase IV may use the Statistics for any purpose, including for its own sales, marketing, business development, product enhancement, customer service, or other initiatives.
   • Pre-existing Materials. The Parties agree that each Party retains any and all ownership rights to its own pre-existing materials. Phase IV’s pre-existing materials include: all of its Software, algorithms, application programming interfaces, apparatus concepts, moral rights, patents and patent rights in any country, trade secrets, and know-how, as well as improvements, upgrades, and updates, data, databases and data collections, flow charts, formulae, ideas and inventions (whether or not patentable or reduced to practice), materials, marketing and development plans, trade marks (including all Phase IV’s brand names, logos, and slogans), methods, models, net lists, network configurations and architectures, procedures, processes, protocols, schematics, software code (in any form including source code and executable or object code), specifications, techniques, user interfaces, web sites, works of authorship, and other forms of technology together with the physical embodiments thereof.
   • If Customer or any Authorized User sends or transmits any communications or materials to Phase IV suggesting changes to the Software or the Hardware, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Phase IV is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Phase IV on Customer’s behalf, and on behalf of its Authorized Users, all right, title to, and interest in, and Phase IV is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Phase IV is not required to use any Feedback.
7. Representations and Warranties.
   • Customer Representations and Warranties. Customer represents and warrants that: (i) Customer possesses the legal right and ability to enter into this Agreement; (ii) Customer will access the Products only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; and (iii) Customer has all licenses, permits and consents (including consents from Authorized Users) which may be required for Customer to gather and use the reports generated by the dashboard. Customer acknowledges that the Products are commercially available and have not been developed specifically for Customer.
   • Software Warranty. Phase IV represents and warrants, that the Software does not contain any virus or other malicious code that would cause the Software to become inoperable or incapable of being used. Phase IV represents and warrants that it possesses the legal right and ability to enter into this Agreement. All sales of Software are final and non-refundable. For defective Software that is returned within one (1) year from the date of purchase, Phase IV will repair or replace, at its option, the Software without charge to Customer.
   • Hardware Warranty. Unless otherwise agreed by the Parties, Phase IV warrants to Customer that for a period of one (1) year from the date of shipment of the Hardware, the Hardware will materially conform to the specifications for that particular Hardware, and will be free from material defects in material and workmanship. For defective Hardware that is returned within one (1) year from the date of purchase, Phase IV will repair or replace, at its option, the Hardware without charge to Customer.
   • Void Warranties. The warranties set forth in Sections 2 and 7.3 do not apply and become null and void if Customer breaches any provision of this Agreement, or if Customer or any other person provided access to the Software or the Hardware by Customer whether or not in violation of this Agreement: (i) installs or uses the Products on or in connection with any hardware or software not specified in any documentation provided by Phase IV or expressly authorized by Phase IV in writing; (ii) modifies or damages the Products; or (iii) misuses the Products, including any use of the Software other than as specified in any documentation provided by Phase IV.
   • Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTIONS 2 AND 7.3, THE PRODUCTS 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 PRODUCTS, 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 HARDWARE OR SOFTWARE 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 SOFTWARE OR HARDWARE.
8. • Customer shall indemnify, hold harmless, and, at Phase IV’s option, defend Phase IV from and against any losses, damages, liabilities, costs (including attorneys’ fees) resulting from any third-party claim, suit, action, or proceeding (“Third Party Claim”) caused by Customer’s or any of its employee’s, contractor’s or agent’s: (i) breach of the terms of this Agreement; (ii) use of a version of the Products which is not the most current version; (iii) use of any Products which have been altered, modified, or revised by Customer or at the request or instruction of Customer (including by Phase IV); (iv) use of any Products which have been configured by Phase IV at the request or instruction of Customer and/or by anyone other than Phase IV; (v) failure to implement any update or upgrade provided by Phase IV that would have prevented the Third Party Claim; (vi) use of any software or services provided by a third party; (vii) unauthorized use of the Products; (viii) use (after receiving notice from Phase IV) of an outdated version of the Products that is no longer updated or upgraded by Phase IV, whether or not Customer possesses a valid license to use the same; (ix) use of the Products in combination with any equipment, products or third-party software, where Phase IV has not consented to such use in writing; and (x) acts, omissions, negligence or willful misconduct; provided that Customer may not settle any Third-Party Claim against Phase IV unless such settlement completely and forever releases Phase IV from all liability with respect to such Third-Party Claim or unless Phase IV consents to such settlement in writing, and further provided that Phase IV will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
   • In the event the Products are subject to a third party infringement or misappropriation claim, Phase IV at its sole option and expense shall either (i) procure the right for Customer to continue using the Products; (ii) modify the Products so they are non-infringing; or (iii) in the event (i) or (ii) are not commercially reasonable, Phase IV may terminate this Agreement and Customer’s right to use the Products upon written notice. Phase VI shall not be responsible under (i) or (ii) above for any claim of infringement or misappropriation arising from Customer’s actions described in Section 8.2.

9. 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 AGREEMENT, INCLUDING BUT NOT LIMITED TO CUSTOMER’S INABILITY TO USE OR OPERATE THE PRODUCTS, MISAPPLICATION, FAILURE TO READ AND UNDERSTAND THE OPERATING INSTRUCTIONS IN ALL ITS FORMS. CUSTOMER’S EXCLUSIVE REMEDY AND PHASE IV’S ENTIRE LIABILITY IN CONTRACT, TORT, NEGLIGENCE INDEMNITY OR OTHERWISE UNDER THIS 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 FOR THE AFFECTED PRODUCT.
10. Term and Termination. This Agreement is effective on the date that the Product is purchased, and shall continue for an initial period of one (1) year (“Initial Period”), unless earlier terminated. Customer may at its sole discretion renew this Agreement for an additional one (1) year period (each, a “Renewal Period” and together with the Initial Term, the “Term”) by contacting Phase IV at least thirty (30) days before the end of the Initial Period to confirm the renewal. Either Party may terminate this 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 at any time upon mutual written agreement. Upon expiration or earlier termination of this Agreement, all licenses granted hereunder will also terminate, and, without limiting Customer’s obligations under Section 4, Customer shall immediately cease using and delete, destroy, or return all copies of the Software. Upon termination of this Agreement, Customer will be required to pay immediately and without setoff or delay all charges, fees and costs accrued before the termination date.
11. • Sections 5, 6, 8, 9, 10, and 11 survive any termination or expiration of this Agreement.
    • Phase IV may use Customer’s name and may disclose that Customer has entered into this Agreement. Phase IV shall not indicate that Customer endorses Phase IV’s Products without prior written permission from Customer.
    • Entire Agreement. This 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 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 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 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 Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; 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 Agreement, for any failure or delay in performing its obligations under this 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 Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this 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 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 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 Calibration 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 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 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 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.

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