Device SERVICES AND LICENSE AGREEMENT

TERMS AND CONDITIONS

These Device Services and License Agreement Terms and Conditions (“Terms and Conditions”) govern the Device Services and License Agreement (“DSLA”) or Test Drive Device Services and License Agreement (“TDSLA”) entered into between Useful Systems, Inc. (“Useful”) and the customer identified in the DSLA or TDSLA (the “Customer”).  The DSLA or TDSLA, and the Terms and Conditions, are collectively referred to as the “Agreement.”

1.              DEFINITIONS

 1.1           Authorized User” shall mean Customer (if an individual) or an employee of Customer who (i) is authorized to use the Services, (ii) agrees to use the Services in accordance with this Agreement, and (iii) who receives a user name, ID and password for that purpose.  Customer shall provide Useful with all information regarding the Authorized User as reasonably requested.

1.2           “Data Services” means the cellular data plan for use with the Devices and Software.

1.3           “Device” means the electronic device (e.g. iPad, iPhone, or other similar device) that is provided to Customer pursuant to the Agreement to allow Customer to access and use the Software.

1.4           “Services” shall mean access to and use of the specific Devices, Software and Data Services during the Term, as set forth in the DSLA, and any other services provided by Useful to Customer (including, without limitation, any set-up or training)

1.5           “Software” shall mean Useful’s proprietary application (the “Useful Application”), and all other applications of software that are installed on the Device at the time of delivery to Customer by Useful.

1.6       “Term” shall have the meaning set forth in section 7.1.

2.         LICENSE

2.1       Grant.  Subject to all of the terms and conditions of the Agreement, and Customer complying with all applicable Useful, Device manufacturer, and Data Service provider processes, procedures and documentation, Useful hereby grants to Customer a limited, revocable, nonexclusive, nontransferable, nonsublicensable license during the Term to access and/or use the Services.

2.2           Access and Use.  Subject to the terms and conditions of this Agreement, only Authorized Users may access and use the Services, and the Services may only be used for Customer’s internal non-commercial purposes. Customer and Authorized Users shall not disclose or share any User ID, passwords or other access credentials with any other person.  Without limiting the generality of the foregoing, except as specifically set forth in this Agreement, Customer shall not: (a) install, download or use any application or software on a Device, except for applications or software installed on the Device at the time of delivery to Customer; (b) market, sell or distribute the Services or any portion of the Services; (c) make the Services or any portion of the Services available to any individuals other than Customer's Authorized Users; under this Agreement and who agree in writing to be bound by the terms of this Agreement (d) download, use, modify, archive, publish, transmit, translate, reverse engineer, decompile, disassemble, or create derivative works based upon, the Services; (e) copy the Services, in whole or in part; (f) rent, lease, grant a security interest in, or otherwise transfer or attempt to transfer any rights in or to the Services or any portion of the Services;  (g) remove or deface any legends, restrictions, product identification, copyright, trademark or other proprietary notices from the Services and/or any related documentation; or (h) make any alterations, additions, or improvements to any Devices. Customer further agrees that it (i) is responsible for maintenance of the Devices, including any appurtenances thereto, in good operating condition and repair, (ii) will not use any Device that is not in good condition, does not work or function fully or is otherwise damaged and in need of repair, (iii) shall use the Devices in a careful manner and shall comply with all laws relating to their possession, use, and maintenance; (iv) will not use the Device without the Device case provided by Useful and the case must be kept in good condition at all times.  Customer shall be responsible for each Authorized User’s compliance with this Agreement. 

2.3           International Roaming.  Except as otherwise agreed to in writing by Useful, the Devices and data Services are not to be used outside the United States.  Customer shall be responsible for any costs or expenses arising out of any such improper use, and shall indemnify and hold Useful harmless from any claims, losses or damages resulting from Customer’s international use.

2.4           Useful Application.  Use of the Useful Application shall also be governed by Useful’s Mobile Application End User License Agreement located at www.usefulsystemsinc.com/eula.

2.5           Audit Right/Monitoring.  Useful shall have the right, upon reasonable notice, during normal business hours, to inspect the Devices and Customer's computer system(s) and documentation to help ensure compliance by Customer with the use restrictions contained in this Agreement.  Customer acknowledges and agrees that Useful will continually monitor and access non-user-specific traffic and Services access in order to determine whether this Agreement is being complied with, to protect its intellectual property, and for Services improvement.  Customer agrees to provide Useful with verifiable information upon request in order to determine license compliance, facilitate security, and protection of Useful’s intellectual property.

3.             CUSTOMER OBLIGATIONS.  In addition to any other obligations identified in this Agreement, Customer shall have the following responsibilities: 

3.1.            Access and Security.  Customer shall be solely responsible for all use of the Services (including use by Authorized Users).  Customer agrees to notify Useful immediately if Customer becomes aware of any unauthorized use of the Services (including unauthorized use by Authorized Users or use by unauthorized users). 

3.2.            Authorized UsersCustomer shall provide Useful with the names, addresses, and points of contact information for each Authorized User within 7 days of entering into the DSLA or any subsequent amendment, and Customer agrees to keep Useful timely notified of any changes.

3.3.            Setup Information.  To assist with the setup of the Devices, Customer will provide Useful, within 7 days of entering into the DSLA or any subsequent amendment, the necessary information to create or customize any part of the account or settings such as previous employee information, work orders, job codes, job names, project types and materials and other information requested by Useful.   

3.4.            Compliance with Law.  Customer, on behalf of itself and its Authorized Users, agrees to comply with all applicable federal, state and local laws, ordinances and regulations applicable to its use of the Services.

3.5.            Devices

3.5.1.     Customer shall maintain the Devices in good operating condition and repair, and return them to Useful at the end of the applicable Term in such condition, subject to ordinary wear and tear.  Customer shall, at all times, use the Devices in accordance with applicable manufacturer specifications and requirements. Customer shall not make any alterations, additions or improvements to any Devices without Useful’s prior written consent.  Customer must not use the Devices if they are damaged or in need of repair.

3.5.2.     Customer will receive a return material authorization (“RMA”) and shipping address from Useful to use for return of any Device if the Customer Term or the Agreement has been terminated in accordance with the Agreement.  Customer is responsible for the return of the Device to the specified shipping address within seven (7) business days.  Customer shall use a common carrier, specifying ground service, insured method, to return the Device at Customer’s expense.  If these requirements are not met, Customer shall continue to be charged the standard Device fee applicable to the Device until the Device is received by Useful or the Customer notifies Useful of the loss of the Device.  Useful reserves the right to deem any Device a loss if the Device is not returned within thirty (30) days after an RMA has been provided to Customer and charge Customer accordingly. 

3.5.3.     Except for accidental damage covered by Useful’s Device Replacement Program, Customer is responsible for all damage or loss that occurs to any Device, regardless of cause, plus any related expenses.  In the event of theft or loss of a Device or damage to any Device that renders the Device unusable for continued service, Customer shall pay Useful 100% of the current retail list price of the Device.  If a list price is not available for the Device, a similar current manufactured device with similar features will be used for the purpose of establishing the list price.  Customer agrees that any Device sustaining damage that will require repairs costing more than 33% of the current list price will be deemed unusable and subject to Customer paying Useful as set forth in this Section. This Section is not intended to be, and shall not be, the measure of damages in the event of a Default by Customer.  Loss of a Device must be reported to Useful immediately.

3.6.         Device Replacement Program 

3.6.1.       Except as otherwise provided, for prepaid Device subscriptions of at least 12 months, Useful will replace a Device without cost for accidental damage that occurred to the Device during the Initial Term of the Device subscription(the “Device Replacement Program”).     

3.6.2.       Notwithstanding the above, no more than 25% of all Customer Devices will be replaced pursuant to the Device Replacement Program during the Initial Term

3.6.3.       Device damage caused by the following is not covered and the Devices are not eligible for replacement under the Device Replacement Program:

 3.6.3.1.Intentional damage or damage caused by misconduct or gross negligence

3.6.3.2.Mishandling of a Device, including not taking appropriate precautions to prevent damage (e.g., without limitation, not using appropriate carrying devices or straps)

3.6.3.3.Neglect or mistreatment of a Device (e.g., without limitation, leaving a device out in the cold or heat)

3.6.3.4.Failure to follow Device manufacturer guidelines and requirements

3.6.3.5.Using the Device for other than its intended purpose

3.6.3.6.Submersion in water

3.6.3.7.Drops from extended heights

3.6.4.     Lost Devices are not covered by the replacement program. 

3.7.         Data Services

3.7.1.         Acceptable Use.  Customer, on behalf of itself and its Authorized Users agrees to comply with all terms and conditions and any acceptable use and other policies of the Data Services provider currently located at: att.com/AcceptableUsePolicy, as determined solely by the Data Services provider.  The Data Service provider can revise its Acceptable Use Policy at any time without notice.   

3.7.2.         DISCLAIMER.  CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT (1) IT HAS NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE DATA SERVICES PROVIDER, (2) CUSTOMER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN USEFUL AND THE UNDERLYING DATA SERVICES PROVIDER, (3) THE UNDERLYING DATA SERVICES PROVIDER SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO CUSTOMER, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, AND CUSTOMER HEREBY WAIVES ANY AND ALL CLAIMS OR DEMANDS THEREFOR, (4) THAT MESSAGES MAY BE DELAYED, DELETED OR NOT DELIVERED, AND (5) THE DATA SERVICES PROVIDER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE DATA SERVICES. 

3.7.3.         Materials.  Customer and all Authorized Users must read all collateral materials concerning the Data Service and use of the Devices, including, without limitation, the Welcome Guide, plan brochures, coverage maps, and materials related to the devices and accessories. Copies of such materials are available to Customer upon request. Customer and all Authorized Users shall read any additional printed materials and consumer information reasonably requested by the Data Service provider from time to time to be so provided. Similarly, for purposes of determining which jurisdiction's taxes and other assessments to collect, federal law requires the Data Services provider to obtain Customer's Place of Primary Use ("PPU"), which must be their residential or business street address and which must be within a Carrier's licensed Service Area.

3.7.4.         Location-Based Services.  The Data Services provider collects information about the approximate location of Devices in relation to its cell towers and the Global Positioning System (“GPS”).  The Data Service provider uses that information, as well as other usage and performance information also obtained from the Data Service provider’s network and the Devices, to provide Data Services and to maintain and improve the network and the quality of customers’ wireless experience.  The Data Service provider may also use location information to create aggregate data from which Customer’s personally identifiable information has been removed or obscured.  Such aggregate data may be used for a variety of purposes such as scientific and marketing research and services such as vehicle traffic volume monitoring.

3.8.         Third Party Software.  To the extent Useful provides or otherwise makes available to Customer third party software on the Devices, in addition to the other obligations under this Agreement, Customer agrees to comply with the third party license terms and conditions contained within or provided as part of the software.

3.9.            InspectionWith respect to the delivery of each Device, Customer shall deliver written notice to Useful specifying any defects in, shortages, or other proper objections to the Devices no later than seven (7) business days after the Devices are delivered.  Unless Useful receives such notice, Customer agrees that it shall be conclusively established as between Useful and Customer, that Customer has fully inspected and acknowledged that the Devices are in full compliance with this Agreement, in good condition and repair, that no shortages exist, and that Customer is satisfied with and has accepted the Device in such good condition and repair. Useful shall have the right at any time during normal business hours and upon reasonable notice to enter the premises in which the Device is located and, upon reasonable notice, shall be given free access thereto and afforded necessary facilities for the purpose of inspection.

3.10.         Export Controls.  Customer acknowledges that Services (or any portion thereof, including but not limited to the Device and Software) provided under this Agreement may be subject to U.S. export laws and regulations and any use or transfer of such products, software, and technical information must be authorized under those regulations.  Customer agrees that it will not use, distribute, transfer, or transmit any products, software, or technical information obtained hereunder (even if incorporated into other products), except in compliance with U.S. export regulations.  If requested by Useful, Customer also agrees to sign written assurances and other export-related documents as may be required to comply with U.S. export regulations.

3.11.         U.S. Government Restricted Rights.  The United States Government’s rights with respect to the Services are limited by the terms of this Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable.  The Software and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable.  Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

3.12.         IndemnificationCustomer shall indemnify, defend and hold Useful and its affiliates, and suppliers, vendors and partners (including the Data Services provider and any Device supplier), and their respective officers, directors, partners, agents, employees, harmless from and against any and all claims, damages, liabilities, judgments, costs and expenses (including reasonable attorneys’ fees and disbursements) of any nature arising out of, resulting from or relating to of any nature arising out of, resulting from, or relating to, Customer’s use of the Services or violation of the terms of this Agreement. 

4.              OWNERSHIP  

As between Useful and Customer, Useful is the sole owner of all right, title and interest, including all intellectual property rights in and to the Services, including the Devices and any deliverables or work product arising out of or provided as part of the Services.  Customer acknowledges that the Services may be protected by United States and international copyright and other intellectual property laws and that Customer shall obtain no rights or title in the Services or any portion of the Services, other than as set forth in this Agreement.  Customer shall at all times protect and defend, at its own cost and expense, Useful or its suppliers’, vendors’ or partners’ ownership against all claims, liens, and legal processes of creditors of Customer and other third parties, and keep the Devices free and clear from all such claims, liens, and processes.  Customer is not permitted to assign, transfer, pledge, hypothecate, encumber, give an interest in, or dispose of a Device in any manner without Useful’s prior written consent.   

5.              WARRANTIES AND LIMITATIONS OF LIABILITY

5.1.         Authority.  Each party represents and warrants that it has all requisite corporate power and authority to enter into the Agreement and is fully capable of performing its obligations under, and in accordance with, the Agreement. 

5.2.            DISCLAIMER.

5.2.1.   Useful is not the manufacturer of the Devices OR THE PROVIDER OF THE DATA SERVICES and makes no warranties, express, implied or statutory, as to any matter whatsoever RELATING TO THE DEVICE OR DATA SERVICES, including, but not limited to, the condition of the Device, its merchantability, its design, its capacity, its performance, its material, its workmanship, its fitness for any particular purpose, or that the Device OR DATA SERVICES will meet the requirements of any laws, rules, specifications, or contracts which provide for specific apparatus or special methods. Useful further disclaims any warranties implied by the parties’ course of dealing, course of performance, or usage of trade. 

5.2.2.   useful disclaims any liability whatsoever for loss, damage, or injury to customer or any third parties as a result of any defects, latent or otherwise, in any Device.  CUSTOMER further ACKNOWLEDGES AND UNDERSTANDS THAT THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY BY USEFUL OR ITS THIRD PARTY PROVIDERS OF ANY KIND AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, USEFUL AND ITS THIRD PARTY LICENSORS AND PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY OF NON-INFRINGEMENT.  For clarification purposes, and without limitation, THERE IS NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT CUSTOMER’S ACCESS TO THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE, AND NEITHER USEFUL NOR ITS THIRD PARTY PROVIDERS WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY, CAPABILITY, UPTIME, CURRENTNESS OR OTHERWISE.  CUSTOMER WILL NOT HOLD USEFUL AND/OR IT’S THIRD PARTY PROVIDERS RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM CUSTOMER’S USE OF THE SERVICES.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO USEFUL AND/OR ITS THIRD PARTY PROVIDERS.   the services are not intended for use in the operation of nuclear facilities, aircraft navigation, communication systems, or other activities in which the failure of the Device or support services to attain a desired result could lead to death, personal injury, or severe physical or environmental damage.

5.2.3.   for data services, useful’s ENTIRE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, FOR DAMAGES ARISING OUT OF MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERROR OR DEFECTS IN THE data SERVICEs THAT LAST MORE THAN TWENTY-FOUR (24) HOURS, AND NOT CAUSED BY CUSTOMER’S NEGLIGENCE, WILL IN NO EVENT EXCEED THE RECURRING SERVICE CHARGES FOR THE PERIOD DURING WHICH SUCH MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR OR DEFECT OCCURS AND CONTINUES. IN NO EVENT SHALL useful BE LIABLE TO CUSTOMER FOR ANY DAMAGES ARISING OUT OF MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERROR OR DEFECTS THAT LAST LESS THAN TWENTY-FOUR (24) HOURS.

5.3.        GENERAL LIMITATION OF LIABILITY.  EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, NEITHER USEFUL NOR ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS SHALL BE LIABLE TO CUSTOMER (OR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM CUSTOMER’S RIGHTS) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND -- INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS AND LOSS OF DATA -- IN ANY WAY RELATED TO THIS AGREEMENT (INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT OR AS A RESULT OF NEGLIGENCE OR BREACH OF STATUTORY DUTY), REGARDLESS OF WHETHER THE PARTY THAT IS LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.  IN NO EVENT SHALL USEFUL’S LIABILITY FOR A CLAIM UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID TO OR RECEIVED BY USEFUL UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE.  

5.4.       Data services limitation of liability.   Useful and the data services provider WILL NOT BE LIABLE FOR ANY DAMAGES, EXCEPT TO THE EXTENT CAUSED BY DATA SERVICES PROVIDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, ARISING OUT OF OR RELATING TO: INTEROPERABILITY, ACCESS OR INTERCONNECTION OF THE SERVICE WITH APPLICATIONS, EQUIPMENT, SERVICES, CONTENT OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; SERVICE DEFECTS, SERVICE LEVELS, DELAYS OR INTERRUPTIONS (EXCEPT FOR LIABILITY FOR SUCH EXPLICITLY SET FORTH IN THIS AGREEMENT); ANY INTERRUPTION OR ERROR IN ROUTING OR COMPLETING CALLS OR OTHER TRANSMISSIONS (INCLUDING 911 CALLS OR ANY SIMILAR EMERGENCY RESPONSE NUMBER); LOST OR ALTERED MESSAGES OR TRANSMISSIONS; OR UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS, OR DESTRUCTION OF CUSTOMER’S, ITS AFFILIATE’S, END USERS’, OR THIRD PARTIES’ APPLICATIONS, CONTENT, DATA, PROGRAMS, INFORMATION, NETWORK, OR SYSTEMS.

6.              CONFIDENTIALITY

6.1.       Customer’s Obligations.  Customer acknowledges that, except as provided in paragraph 6.2, the Services and any information or documentation provided by Useful relating thereto, including all User IDs, passwords and other access credentials, the terms of this Agreement, as well as any information concerning the business or intellectual property of Useful, shall be treated as confidential information of Useful, and Customer agrees to keep such information strictly confidential.  Customer agrees that it shall not use any such information for any purpose not expressly authorized by this Agreement.  Without limiting the generality of the foregoing, Customer agrees not to disclose such information to any person or entity other than, on a need to know basis, Customer’s employees and agents who are under a duty to Customer not to disclose such information.  Customer agrees to instruct such employees, agents and Authorized Users as to the appropriate steps to be taken to satisfy Customer’s obligations hereunder, and shall be responsible for the employees’ and agents’ compliance with the terms of this Agreement.  Customer agrees that it will promptly inform Useful of any conduct by any party inconsistent with these provisions and will take all reasonable and lawful steps to terminate such conduct.  Customer shall indemnify and hold Useful harmless from any loss, damage or expense incurred by Useful as a result of any breach by Customer, its employees, agents or Authorized Users of the confidentiality provisions of this Agreement. 

6.2.         Exceptions.  The foregoing obligations of confidentiality shall not apply to any Confidential Information to the extent such information: (a) is or becomes freely and generally available to the public through no fault of the receiving party; (b) was or is already known to the receiving party, as supported by reasonable evidence; (c) was or is disclosed to the receiving party by a third party who in making such disclosure breaches no obligation of confidentiality;  (d) was or is independently developed by the receiving party, as supported by reasonable evidence or (e) is required to be disclosed by law, subpoena or other process, so long as the receiving party first gives the disclosing party notice of the required disclosure and reasonably cooperates with the disclosing party, at the disclosing party’s sole expense, in seeking reasonable protective arrangements with respect to such Confidential Information.  In no event shall the receiving party’s or its affiliates’ cooperation with the disclosing party require the receiving party or any of its affiliates to take any action that, on the advice of their counsel, could result in the imposition of any sanctions or other penalties against them.

6.3.         Return.  Upon termination of this Agreement for any reason, upon request, Customer agrees promptly to return or, at the other party’s option, delete or destroy, all Confidential Information and copies thereof of the other party.

6.4.         Consent to Use of DataCustomer further agrees that Useful may use Customer data as set forth in Useful’s Privacy Policy, located at www.usefulsystemsinc.com/privacypolicy.

7.              TERM AND TERMINATION

7.1.         Term.  The Initial Term of the Services shall be as set forth in the DSLA or TDSLA.  Unless at least thirty (30) days written notice prior to the end of the Initial Term or any Renewal Term is provided by either party, the term will continue on a month to month basis (the “Renewal Term”) at Usefuls’ then-current standard month to month pricing.  The Initial Term and all Renewal Terms shall be referred to collectively as the Term.  There is no renewal term for TDSLA Services.  

7.2.         Termination for Breach.  If either party materially breaches the Agreement, the other party may terminate the Agreement upon ten (10) days prior written notice of an un-remedied breach.  In addition, Useful may terminate this Agreement immediately in the event that Customer ceases to function as a going concern, is adjudged a bankrupt or makes an assignment for the benefit of creditors.  A material breach by Customer includes, but is not limited to, the following:  (i) Customer fails or refuses to make all payments under the Agreement; (ii)  Customer fails or refuses to perform any other provision in the Agreement; (iii) Customer abandons the Devices; (iv)  Customer makes any material misrepresentation or materially false statement as to its credit or financial standing in connection with the execution or the further performance of the Agreement; (v) Customer permits any other person or entity to use the Devices, other than its Authorized Users; and (vi) any attachment or execution is levied on any of Customer’s property.

7.3.         Termination by Customer.  Customer may terminate this Agreement only upon payment of all fees owed under the Agreement, including all unpaid amounts for the remaining months in the term for each Device, and the return of all Devices in good condition.

7.4.         Low Season Suspensions.  For month to month Software only subscriptions (no Devices), upon agreement with Useful, and upon 30 days prior written notice by Customer prior to the start of the applicable month during which the suspension is going to start, Customer may be able to request temporary suspension of certain Authorized Users accounts under the following conditions: (1) there is no outstanding Customer balance owed to Useful, (2) no more than 50% of non-Device Authorized User’s accounts may be suspended at any one time; (3) no Device Authorized User accounts may ever be suspended; (4) the minimum suspend period is 1 month; (5) only one suspension can occur each 12 months on a rolling basis, not to exceed 3 months in duration; and, (6) all suspensions will begin on the first day of the month following the receipt of the required 30 day notice, and will terminate on the earlier of the first day of the month following request for reinstatement, or the first day of the month after the end of 3 months of suspension.  Payments for the suspended accounts will be at Useful’s then-current suspension fee rate.

7.5.         Effect of Breach/Remedies.   

7.5.1. In the event of Customer’s breach of the Agreement, Useful shall have the right and option, but shall not be obligated, to exercise, without limitation, any one or more of the following remedies, which remedies or any of them may be exercised by Useful without notice to Customer: (i) to declare the entire amount due under the Agreement immediately due and payable as to any and all Devices, without notice or demand to Customer; (ii) to demand the immediate return of all Devices; (iii) to sue for and recover all fees owed and owing in the future under the Agreement; (iv) to retain all last month payments, if any; (v) to take possession of any and all of the Devices without demand, notice, or legal process, wherever they may be located (Customer hereby waives any and all damages occasioned by such taking of possession, and any said taking of possession shall not constitute a termination of the Agreement as to any Devices unless Useful expressly so notifies Customer in writing); (vi) to terminate this Agreement in whole or in part; (vii) to pursue any other remedy now, or hereafter, existing in law or equity; and (vii) to charge the credit card on file for the full amount or any partial amount due under the Agreement. 

7.5.2. Notwithstanding any repossession or any other action which Useful may take, Customer shall be and remain liable for the full performance of all obligations on the part of Customer to be performed under this Agreement.   All remedies of Useful hereunder are cumulative and may, to the fullest extent permitted by law, be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed to be an election of such remedy or to preclude the exercise of any other remedy. 

7.5.3. Customer’s exclusive remedy under this Agreement in the event of Useful’s material breach shall be to cancel the Agreement as it relates to the breach and the Devices impacted.

7.5.4.   In the event of Customer’s breach of the Agreement, Customer shall pay Useful a sum equal to all expenses, including attorneys’ and expert witness fees and collection costs, if any, incurred by Useful in connection with the enforcement of any of Useful's remedies under the Agreement, including all expenses of repossessing, storing, repairing or selling any Devices, together with interest on such amount at the maximum rate allowable by law or eighteen percent (18%), whichever is less.

8.              THIRD PARTY SOFTWARE

To the extent third-party applications or software are installed on the Device at the time of delivery to Customer, use of that application or software shall be governed exclusively by the third-party’s terms and conditions.  This Agreement is not applicable to the third-party application or software, and Customer agrees not to bring any claims against Useful, and will indemnify Useful for any claims, arising out of or related to the third party application or software.  Without the prior written approval of Useful, no third party applications or software may be installed by Customer or any Authorized Users on the device.  Customer agrees to comply with all license agreement terms and conditions for the third party software.  

9.         MISCELLANEOUS

            9.1       Relationship.  Nothing in this Agreement shall be deemed to create a partnership or joint venture of any kind between Customer and Useful.

            9.2       Assignment.  Useful may assign any or all or its rights under this Agreement at any time. Customer may not, without the prior written consent of Useful, assign or transfer this Agreement or any of its rights or obligations. 

            9.3       Governing Law.  All questions concerning the validity, operation, interpretation, and construction of the Agreement shall be governed by and determined in accordance with the laws of the United States and the State of Colorado, without regard to the choice of law and conflict of laws provisions thereof. The parties agree any suit brought in connection with this Agreement shall be brought in the federal or state courts in the City and County of Denver, Colorado, USA.  EACH PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO VENUE, INCLUDING AN OBJECTION BASED ON THE GROUNDS OF FORUM NON CONVENIENS, THAT SUCH PARTY NOW HAS OR HEREAFTER MAY HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION.

9.4     Notices.  All notices and other communications required or permitted to be given by one party to another in connection with this Agreement shall be in writing and served upon such party via a nationally recognized overnight courier with tracking capability. Notice to Useful shall be addressed as set forth below.  Notice to Customer shall be made to the address identified in the DSLA. 

To Useful:                                                      

Useful Systems Inc.

1007 Pearl Street

Suite 200

Boulder, CO 80302

Customer must promptly notify Useful if its address for notice changes. 

9.5       No Waiver.  Neither party shall, by mere lapse of time, without giving notice or taking other action hereunder, be deemed to have waived any breach by the other party of any of the provisions of the Agreement.  Further, the waiver by either party of a particular breach of the Agreement by the other shall neither be construed as nor constitute a continuing waiver of such breach or of other breaches of the same provision or any other provision of the Agreement.

9.6       Use of Name/Logo.  Customer hereby grants Useful permission to use Customer’s name, logo, and the fact of this contract, for marketing or related purposes.

9.7       Force Majeure.  Except for Customer's obligation to make payment hereunder, neither party shall be in default if its delay or failure to perform any obligation hereunder is caused solely by supervening conditions beyond that party’s reasonable control, including acts of God, civil commotion, strikes, labor disputes, and governmental demands or requirements; provided that, in order to be excused from any such delay or failure to perform, such party must act diligently to remedy the cause of such delay or failure.

9.8       Severability.  If any provision of the Agreement is held to be unenforceable, invalid or illegal by any court of competent jurisdiction, such unenforceable, invalid or illegal provision shall not affect the remainder of the Agreement.

9.9       Multiple Counterparts.  The Agreement may be executed in several counterparts, all of which taken together shall constitute one single agreement between the parties.

9.10     Complete Agreement, Amendments.  The Agreement constitutes the complete and exclusive statement of agreement among the parties with respect to the subject matter hereof and replaces and supersedes all prior and contemporaneous written and oral agreements, negotiations, discussions or statements by and among the parties.  The DSLA may be amended only by a subsequent writing that specifically refers to the DSLA and that is signed by both parties.  The Terms and Conditions may be amended or modified by Useful at any time, and Customer agrees to be bound by the revised, amended or modified Terms and Conditions.  No other act, document, usage, or custom, including any printed terms and conditions contained in any purchase order, shall be deemed to amend the Agreement.