Gecko Robotics Master Services Agreement

This Master Services Agreement (this “Agreement”) is entered into as of the date of execution of the applicable Order Form (“Effective Date”) by and between Gecko Robotics, Inc., a Delaware corporation with offices located at 100 S. Commons, Suite 145, Pittsburgh, PA 15212 (“Gecko”) and the Customer set forth on the applicable Order Form (“Customer”).

Customer and Gecko desire to enter a relationship for Customer’s procurement, and Gecko’s provision, of the Services, as defined herein.

The parties therefore agree as follows:

1.    Definitions. Certain capitalized terms are defined below:

“Affiliate” means, with respect to any Person, any other Person that directly or indirectly is controlled by or under common control with such Person. For purposes of this Agreement, a Person shall be deemed to have “control” over another Person if: (a) such Person directly or indirectly, on its own or acting through one or more Persons, owns, controls or has power to vote at least 50% of the issued and outstanding voting stock or other equity interest of such other Person; or (b) such Person controls or has the power to control the management or operations of such other Person, including by contract.

“Authorized User” means an individual who is authorized by Customer to use the SaaS Services and to whom Customer (or Gecko at Customer’s request) has supplied a user identification and password, provided that no Authorized Users may be or work for a direct or indirect competitor of Gecko.

“Confidential Information” means any information (in whatever form, including, without limitation, in written, oral, visual or electronic  form or on any magnetic or optical disk or memory and wherever located), including information, technical data or know-how relating to discoveries, ideas, inventions, concepts, software, equipment, designs, drawings, specifications, techniques, processes, systems, models, data, source code, object code, documentation, diagrams, flow charts, research, development, business plans or opportunities, products, projects or products under consideration, procedures, and information related to finances, costs, prices, suppliers, vendors, customers and employees, which is disclosed by the disclosing party in connection with this Agreement whether before, on or after the Effective Date, directly or indirectly, in writing, orally or by drawings or inspection of equipment or software, to the receiving party or any of its employees or designated agents. Confidential Information includes the terms of this Agreement. Confidential Information does not include any of the following: (a) information that is or becomes part of the public domain or otherwise available on an unrestricted basis to one or more third parties without violation of this Agreement by the receiving party; (b) information that was known to or in the possession of the receiving party on a non-confidential basis prior to the disclosure thereof to the receiving party by the disclosing party, as evidenced by written records; (C) information that was developed independently by or on behalf of the receiving party, without use of or reference to the Confidential Information; or (d) information that is disclosed to the receiving party by a third party without violation of this Agreement by the receiving party.

“Consulting Services” means consulting services, robotic inspection or other inspection services, and other services, such as onsite services, implementation, training, support, and configuration, in each case as specified in an Order Form or SOW.

“Customer Data” means any Confidential Information of Customer that is input and stored in any Gecko system pursuant to Customer’s use of the Services, including but not limited to any Customer information, data, and content collected by Gecko or its subcontractors in the performance of inspection Services, as well as information, data, and content input by Customer into the SaaS Services.

“Deliverable” means any tangible work product resulting from Consulting Services that is delivered by Gecko to Customer pursuant to an Order Form or SOW.

“Documentation” means the instructions and user guides for the SaaS Services as made available by Gecko from time to time.

“Gecko IP” means all software (including both source code and object code, as applicable), documentation, templates, designs (including screen and report designs), data, materials, patents, trademarks, trade names, domain names, rights in designs, rights in computer software, database rights, hardware, technology and works created, utilized, and/or provided by or on behalf of Gecko in connection with the performance of this Agreement, including without limitation the Documentation,  all software forming part of or used by Gecko to deliver the SaaS Services, any enhancements to any of the foregoing, and all Intellectual Property Rights related to any of the foregoing.

“Intellectual Property Rights” means all rights throughout the world in any and all of the following: (a) patents, patent applications, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, Internet domain names and registrations and applications for the registration thereof together with all of the goodwill associated therewith, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world; (C) copyrights and copyrightable works (including computer programs and mask works) and registrations and applications for registration thereof; (d) trade secrets, know-how and other proprietary information of a like kind, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply); (e) waivable or assignable rights of publicity, waivable or assignable moral rights; and (f) all other forms of intellectual property, such as data and databases, in each case, to the extent protectable under applicable Law.

“Law” means any and all statutes, laws, ordinances, regulations, rules, codes and other requirements or rules of law of any federal, state, local, or foreign governmental authority.

“Order Form” means an order form, executed by the parties and incorporating by reference this Agreement, with respect to specific SaaS Services and/or Consulting Services to be provided under this Agreement.

“Permitted Purpose” means the use, in accordance with the Documentation and the terms of this Agreement, of the Services and Deliverables solely for the operation and management of the applicable Customer assets for which Customer has purchased a SaaS Services subscription, as described in the “Assets” section of the Order Form.

“Person” means any individual, corporation, limited liability company, partnership, trust, joint stock company, business trust, unincorporated association, joint venture, or other form of business or legal entity.

“SaaS Services” means Gecko’s generally commercially available hosted software-as-a-service offerings, the specific features and functionality of which are described in the applicable Documentation, to which Customer has purchased a subscription pursuant to an Order Form.

“Services” means, individually and collectively, the specific SaaS Services and/or Consulting Services ordered by Customer and to be provided by Gecko under this Agreement, each as set forth in one or more Order Forms and/or SOWs.

“Statement of Work” or “SOW” means a statement of work mutually agreed and executed by the parties that (a) incorporates by reference this Agreement, (b) describes the Consulting Services to be provided, and (C) may include additional details concerning specific requirements, assumptions, specifications, milestones, Deliverables, fees and other terms applicable to such Consulting Services.

“Subscription Period” means the initial period for which Customer has contracted to subscribe to SaaS Services as specified in the Order Form, along with each renewal period of Customer’s subscription pursuant to Section 11.2.

2.    Scope of agreement; Order Forms/SOWs.

2.1.    From time to time during the term of this Agreement, the parties may enter into one or more Order Forms and/or SOWs specifying Customer’s agreement to procure, and Gecko’s agreement to provide, Services. Each such Order Form shall reference this Agreement and shall include: (a) a description of the Services covered thereby; (b) the initial Subscription Period applicable to any SaaS Services ordered thereunder; (C) the fees and other charges payable by Customer to Gecko in respect thereof; and (d) any other terms and conditions agreed upon by the parties with respect to that particular Order Form or SOW.

2.2.    In the event of any conflict, discrepancy or inconsistency between an Order Form or an SOW and this Agreement, such conflicting terms of the Order Form or SOW shall govern solely with respect to the Services covered thereby. Each Order Form and SOW, once executed by an authorized representative of each party, shall be deemed incorporated into this Agreement by reference and form a part hereof. For the avoidance of doubt, nothing in this Agreement shall require the Customer to purchase, or Gecko to provide, any Services except as agreed pursuant to one or more Order Forms and/or SOWs.

2.3.    Any changes to the scope of Services will be made only by written change order or amendment signed by an authorized representative of each party prior to implementation of such changes.

3.    Provision and Use of the Services; Customer Responsibilities.

3.1.    Gecko (through itself or third-party service providers) shall provide the Services, including by providing Customer with access to the SaaS Services during the applicable Subscription Period, and by performing the Consulting Services and delivering to Customer the Deliverables, each as specified in the relevant Order Form and/or SOW and subject to the terms and conditions set forth in this Agreement.

3.2.    Gecko (through itself or third-party service providers) is responsible for the deployment, operation, management and hosting of the SaaS Services including the provisioning and maintenance of all server-side hardware, software, and telecommunications capacity. Customer is responsible for all hardware, software, connectivity and related infrastructure required for Customer and Authorized Users to access and use the SaaS Services.

3.3.    Customer is solely responsible for the security and proper creation, use, and termination (including by timely issuing termination instructions to Gecko as appropriate) of all Authorized User IDs, passwords and other security devices used in connection with the SaaS Services and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly, and are not disclosed to unauthorized Persons. Customer shall immediately inform Gecko if there is any reason to believe that a user ID, password, or any other security device has or is likely to become known to any Person not authorized to use it or is being or is likely to be used in an unauthorized way. Gecko reserves the right (in its sole discretion) to require Customer to change any or all of the user IDs, passwords, or other security devices used by Customer in connection with the SaaS Services, and Customer shall promptly comply with any such requirement.

3.4.    Customer is solely responsible for its relationships with all Authorized Users, for their use of the Services, and for ensuring that they comply with all the terms and conditions of this Agreement. Any violation of the terms and/or conditions of this Agreement by any Authorized User shall be deemed to be a violation by Customer thereof.

3.5.    Customer shall cooperate fully with Gecko in its provision of the Services, including by (a) providing Gecko, in a timely fashion, with access to such Customer premises, systems, personnel, and information and (b) performing all tasks and providing all decisions, in a timely fashion, each as shall be reasonably required for the provision of the Services. Gecko shall not be liable for any delays caused in whole or in part by (i) any failure or delay on Customer’s part to comply with this Section 3.5 or to otherwise fulfill its obligations with respect to an Order Form or SOW, (ii) inaccuracies in information provided by Customer; (iii) Customer-requested changes; (iv) changes in Customer personnel; or (v) other factors beyond the reasonable control of Gecko (collectively, “Unforeseen Events”). If Gecko determines that additional work on Gecko’s part will be required as a result of an Unforeseen Event, Gecko shall not be required to perform such additional work unless and until the parties have executed a written change order covering such additional work pursuant to Section 2.3; however, if Gecko nevertheless performs such additional work, Customer shall pay Gecko for all such additional work at Gecko’s then-current rates for the types of services rendered.

3.6.     Customer will appoint and designate in writing a project manager to act as the primary contact for all communications with Gecko in connection with any Consulting Services project. Customer will promptly inform Gecko of any change in the identity of such project manager. The project manager will have the power to make technical and project-level decisions within the scope of the Consulting Services project that are binding on Customer.

3.7.    Gecko reserves the right to determine in its sole discretion which of its personnel shall be assigned to perform the Services, and to replace or reassign such personnel at any time. Gecko may use Affiliates, subcontractors and other third parties in the performance of the Services, provided that no such use of Affiliates, subcontractors or other third parties shall relieve Gecko of its obligations under this Agreement. 4.    Rights and Limitations of Use.

4.1.    Subject to the terms and conditions of this Agreement (including Customer's payment obligations hereunder), Gecko authorizes Customer during the applicable Subscription Period (a) to access and use, and permit Authorized Users to access and use, the SaaS Services solely for the Permitted Purpose, (b) to make use of the Deliverables that Gecko makes available to Customer through the Services, in each case for the purposes contemplated by the applicable Order Form or SOW and subject to any limitations specified therein , and (C) to the extent Gecko otherwise makes available to Customer, by way of download or other form of distribution, any reporting templates, software components, APIs, tools, materials or technology intended for use in connection with the SaaS Services, to store, install, execute and use the same internally within Customer’s organization, solely in connection with Customer’s authorized use of the SaaS Services.

4.2.    Except for the rights expressly granted under Section 4.1, no other rights in or to any Services or Gecko IP, express or implied, are granted to Customer. Without limiting the foregoing, except to the extent expressly authorized by this Agreement, Customer may not: (a) transfer to any other Person any of its rights to use any Services or Deliverables; (b) sell, resell, license, sublicense, distribute, rent, lease or share any Services or Deliverables; (C) permit any Person who is not an Authorized User to use or access any Services or Deliverables; (d) use any Services or Deliverables other than for the Permitted Purpose; (e) use any Services or Deliverables to provide outsourcing, service bureau, hosting, application service provider or online services to third parties; (f) create any derivative works based upon any Services, Deliverables or Gecko IP; (g) copy any feature, design or graphic in any Services, Deliverables or Gecko IP; (h) attempt to circumvent any security device or access or derive the source code or architecture of any Services, Deliverables or Gecko IP; (i) use or access any Services, Deliverables or Gecko IP in order to build a competitive solution or to assist someone else to build a competitive solution; (j) load or penetration test the SaaS Services or otherwise use any Services in any way that is, or could reasonably be expected to be, detrimental to Gecko’s ability to provide services to any other customer; (k) alter, remove or conceal any government restricted rights notice or any copyright, trademark, trade name or other proprietary marking or notice that may appear in or on the SaaS Services, the Documentation, the Deliverables or any other Gecko IP; (l) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material including code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses, or to store or transmit material in violation of third-party privacy rights; (m) reverse engineer, or attempt to reverse engineer, any Services, Deliverables or Gecko IP (to the extent such restriction is permitted by Law) or (n) use any Services or Deliverables in a manner that violates any applicable Law; or (o) permit any other Person to do any of the foregoing.

5.    Maintenance and Support.

5.1.    Customer acknowledges that the SaaS Services were not designed or produced to Customer’s individual requirements and that Customer is solely responsible for confirming that the SaaS Services meet such requirements. Customer further acknowledges that the SaaS Services are based on or intended as standardized services that are or will be made generally available by Gecko to a variety of customers. Gecko will make available to Customer as part of the SaaS Services the error corrections and improvements (if any) that Gecko makes available to its customers generally as part of their paid subscription to the same services offering, but specifically excluding any new products, offerings, applications, or add-ons for which Gecko charges a separate fee, unless Customer separately purchases a subscription thereto. Gecko reserves the right to make changes to the SaaS Services, including by discontinuing the SaaS Services or any portion(s) thereof. If any such change materially diminishes the functionality of the SaaS Services, then: (a) Gecko shall notify Customer at least thirty (30) days prior to implementing such change (except in cases where Gecko determines that expedited implementation is required); and (b) if Customer disapproves of any such change that materially diminishes the functionality of the SaaS Services, Customer shall have the right, exercisable no later than thirty (30) days after such change has been implemented, as Customer’s sole remedy, to terminate the relevant Order Form upon notice to Gecko and recover a refund of unused subscription fees paid by Customer with respect to the then-remaining portion of any prepaid Subscription Period. Customer agrees that its subscription to the SaaS Services is not contingent on the delivery of any future functionality or features, or dependent on any statements made by Gecko regarding possible future functionality or features.

5.2.    Gecko shall not be obligated to provide technical support services, training, or other assistance with respect to the Services or Customer’s use thereof, except to the extent specifically set forth in an Order Form or SOW.

6.    Fees, Expenses, and Payment.

6.1.    Customer shall pay all fees and charges as specified in each Order Form and/or SOW. Except as otherwise set forth in this Agreement, all payment obligations under an Order Form are on an annual basis, are non-cancelable, and amounts paid are non-refundable (except as provided for in Sections 5.1, 8.2, and 9.1).

6.2.    Unless otherwise specified herein or in the applicable Order Form or SOW, Customer shall pay all invoiced fees and charges within thirty (30) calendar days of the date of Gecko’s invoice therefor.

6.3.    If any invoiced amount is not received by Gecko by the due date, then without limiting Gecko’s rights or remedies, Gecko may charge Customer interest at the rate of 1.5% per month (or the highest rate allowable by Law, if less) for any past due amounts, from the date payment was due until the date paid (other than with respect to any amount disputed by Customer in good faith where Customer is cooperating diligently to resolve the dispute). Customer shall bear any costs (including attorneys’ fees and costs) incurred by Gecko in collecting any amounts due hereunder.

6.4.    Gecko fees do not include, and Customer shall pay, any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes and import duties, assessable by any jurisdiction whatsoever (other than corporate income taxes payable by Gecko) due as a result of any amounts paid by Customer to Gecko under this Agreement. If Gecko has the legal obligation to pay or collect taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and payable by Customer.

6.5.    Customer shall not charge any fee to Gecko related to invoice processing and shall pay or reimburse Gecko for any such fee charged by any third party that Customer requires Gecko to use in connection with processing Gecko’s invoices to Customer.

7.    Customer Data.

7.1.    All Intellectual Property Rights in and to any Customer Data are and shall remain the sole property of Customer and Gecko shall acquire no right of ownership or use with respect thereto, except that Gecko and its Affiliates and their respective employees, agents, and sub-processors shall have the right to reproduce, modify, use, host, transmit, and display the same in connection with Gecko’s provision of the Services and as set forth below in this Section 7.

7.2.    Gecko shall implement and maintain reasonable administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Customer Data. Except as otherwise set forth in this Agreement, Gecko shall not access or use Customer Data except (a) in connection with providing, maintaining, and improving the Services, including to prevent or address service or technical problems, (b) as required by Law in accordance with Section 12.2, or (C) as Customer expressly permits in writing. Customer is solely responsible for all other aspects of Customer Data, including its sourcing, inputting, management, accuracy, quality, legality, results, and the privacy of personal information. Notwithstanding the foregoing, Customer acknowledges that the SaaS Services are not intended and were not designed for the processing of personal information; Customer represents, warrants, and covenants that it will at no time input, upload, store, or process in connection with its use of the SaaS Services any “personal data” or “personal information” (or the equivalent term), as defined under applicable Law.

7.3.    Gecko may review, extract, compile, synthesize, and analyze data and information related to the performance, operation, and use of the Services (“Derived Data”). By way of example, Derived Data may include information about dates and times Authorized Users access the SaaS Services, the portions of the SaaS Services visited, the performance of the SaaS Services, and aggregated and de-identified information derived from Customer Data. Gecko shall own all right, title, and interest in and to the Derived Data upon creation and may freely use and otherwise exploit the Derived Data for any lawful business purpose, including, for example, improving the performance, features, security, delivery or capabilities of Gecko’s products and services, developing industry benchmarks, measures, reports, and standards, or any other lawful purposes.

8.    Warranties; Disclaimers.

8.1.    Each party represents and warrants to the other party that (a) it has the full power and authority to enter into this Agreement and perform its obligations under this Agreement, and (b) the execution, delivery and performance of this Agreement by it does not violate, conflict with or constitute a default under any agreement or instrument to which it is a party or by which it is bound, or any applicable Law.

8.2.    Gecko further warrants to Customer that (a) the SaaS Services will function substantially in accordance with the applicable Documentation for the duration of the Subscription Period, and (b) the Consulting Services shall be performed with reasonable care and skill and in accordance with applicable professional standards. In the event of any nonconformance with any of the warranties specified in this Section 8.2, Customer will promptly (and in no event later than thirty (30) days after the non-conforming Service or Deliverable was provided) notify Gecko of such nonconformance and Gecko will, following receipt of such notice from Customer, use commercially reasonable efforts to make available to Customer a conforming version of the applicable Service or Deliverable. If Gecko fails to do so within thirty (30) days, and such nonconformance has the effect of materially diminishing the functionality and value of the Services as a whole, then Customer shall have the right to terminate the relevant portion of the Order Form or SOW upon notice and recover a pro-rata refund of unused subscription fees paid by Customer with respect to the non-conforming Service or Deliverable for the then-remaining portion of any prepaid Subscription Period; provided, however, that such termination shall not be permitted if, within such thirty (30) day period, Gecko has provided Customer with reasonable assurances that such nonconformance will be remedied within a reasonable period of time. The foregoing sets forth the exclusive remedies of Customer, and the sole liability of Gecko, in the event of any nonconformance with any of the warranties set forth in this Section 8.2 or otherwise with respect to any errors, service interruptions or other problems with the Services or the Deliverables.

8.3.    EXCEPT AS EXPRESSLY PROVIDED ABOVE IN THIS SECTION 8, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, GECKO IS PROVIDING THE SERVICES AND DELIVERABLES ON AN “AS IS” AND “AS AVAILABLE” BASIS AND GECKO DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND DELIVERABLES OR THEIR PERFORMANCE HEREUNDER, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN PARTICULAR, GECKO DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES WILL MEET CUSTOMER’S EXPECTATIONS OR BE SECURE, ACCURATE, ERROR-FREE, OR OPERATE ON AN UNINTERRUPTED BASIS OR IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE OR SYSTEM.

9.    Indemnification.

9.1.    Gecko shall indemnify, defend, and hold harmless Customer and its employees and agents from and against any loss, cost, damage, or expense (including reasonable attorneys’ fees) incurred in respect of any claim, demand, action, suit or other judicial proceeding asserted, brought, or threatened by a third party (each a “Claim”) alleging that the SaaS Services or Deliverables as provided by Gecko hereunder infringe any third party’s rights in any copyright, trademark, or United States patent, except to the extent the Claim (a) relates to Customer Data or other content or materials provided by or on behalf of Customer or any Authorized Users, (b) relates to use of the SaaS Services in combination with any software, hardware, network, or system not supplied by Gecko where the Claim would have been avoided in the absence of such combination, or (C) is otherwise subject to Customer’s indemnification obligations under Section 9.2. In the event of any Claim of infringement or if Gecko has reason to believe that such a Claim may be brought, Gecko may at its option and sole expense either (i) obtain the rights necessary to extinguish or avoid the infringement; (ii) terminate the Services and issue a refund to Customer of the unused subscription fees paid by Customer with respect to the then-remaining portion of any prepaid Subscription Period; or (iii) make any modifications to the Services or Deliverables that are recommended by Gecko’s counsel to avoid infringement of third party rights, provided that if any such modification materially diminishes the functionality and value of the Gecko Software, Services or Deliverables under any Order Form as a whole, Customer may within ninety (90) days following Gecko’s implementation of such modification terminate the Order Form concerned by notice to Gecko and recover a refund of unused subscription fees paid by Customer with respect to the then-remaining portion of any prepaid Subscription Period. This Section 9.1 states Customer’s sole remedy and Gecko’s entire liability for any losses and damages of any nature arising out of or relating to any actual or alleged infringement of any copyright, patent, trade secret or other Intellectual Property Rights of any third party.

9.2.    Customer shall indemnify, defend and hold harmless Gecko and its Affiliates and their respective employees and agents from and against any loss, cost, damage, or expense (including reasonable attorneys’ fees) incurred in respect of any Claim that relates to (a) Customer Data or any other content or materials provided by or on behalf of Customer or any Authorized Users, or (b) the use by Customer or any Authorized Users of the Services, Deliverables or any Gecko IP in breach of this Agreement or in violation of applicable Law or third party rights.

9.3.    As a condition to the obligations of the indemnifying party under either of Sections 9.1 or 9.2, the indemnified Person shall (a) promptly notify the indemnifying party of any Claim for which indemnity will be sought; provided that no delay in providing such notice shall relieve the indemnifying party of any liability or obligations hereunder except to the extent the indemnifying party has been prejudiced by such delay, (b) permit the indemnifying party to assume control of the defense and settlement of such Claim with counsel of its choosing and (C) provide cooperation reasonably requested by the indemnifying party in investigating and defending such Claim, at the indemnifying party’s expense (provided that the indemnified Person shall not be entitled to compensation for time spent providing such cooperation). The indemnified Person shall have the right to participate in (but not control) the defense of any such Claim, at its sole cost and expense, using counsel of its choosing.

10.    LIMITATIONS OF LIABILITY.

10.1.    EXCEPT FOR LIABILITY ARISING FROM A WILLFUL OR INTENTIONAL BREACH OF SECTION 12 (CONFIDENTIALITY), OR FROM A BREACH BY CUSTOMER OF SECTION 4 (RIGHTS AND LIMITATIONS OF USE) OR 13 (PROPRIETARY RIGHTS), OR FROM CUSTOMER’S FAILURE TO PAY AMOUNTS DUE UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF DATA, LOSS OF BUSINESS OR PROFITS, OR ANY OTHER SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY SORT, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.

10.2.    GECKO’S AGGREGATE LIABILITY TO CUSTOMER ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO GECKO PURSUANT TO THE APPLICABLE ORDER FORM OR SOW TO WHICH THE APPLICABLE CLAIM RELATES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM OCCURRED.

10.3.    THE LIMITATIONS OF LIABILITY AND DAMAGE EXCLUSIONS CONTAINED IN THIS AGREEMENT WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS (OR LACK THEREOF) OF ANY REMEDIES PROVIDED HEREIN. THESE LIMITATIONS AND EXCLUSIONS ARE REFLECTED IN THE PRICING OF THE SERVICES, AND THEY REPRESENT AN AGREED ALLOCATION OF RISK BETWEEN THE PARTIES AND ARE AN ESSENTIAL PART OF THIS AGREEMENT.

11.    Subscription Period, Renewals, Termination and Suspension.

11.1.    Gecko makes the SaaS Services available on a subscription basis only, and Customer is purchasing a subscription to access and use the SaaS Services upon the terms and conditions set forth in this Agreement, for the Subscription Period specified in the Order Form.

11.2.    The term of this Agreement commences on the Effective Date and shall continue until all Order Forms hereunder (as the same may be renewed as set forth herein or therein) have expired or have been terminated. Upon expiration of a Subscription Period, Customer’s subscription to the applicable Services and the term of this Agreement shall automatically renew for consecutive renewal periods of one (1) year, at Gecko’s then-current subscription price, unless either party notifies the other party no later than ninety (90) days prior to the scheduled renewal date that it is electing not to renew the relevant subscription, in which case such subscription shall end upon the expiration of the then-current Subscription Period.

11.3.    Either party may terminate this Agreement (including all then-active Order Forms and SOWs) by written notice if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of notice of the breach from the non-defaulting party. Any such termination shall be without limitation of any other right or remedy available to the terminating party.

11.4.    Upon ten (10) days’ written notice to Customer, Gecko may suspend the Services in whole or in part if Customer fails to make when due any payment required under this Agreement. Upon receipt of payment in full of all overdue amounts, provided Customer is not otherwise in breach of this Agreement, Gecko shall promptly restore the suspended Services. Gecko may also suspend the Services in whole or in part if Customer otherwise breaches any term of this Agreement and fails to cure such breach within thirty (30) days after receipt of notice of the breach from Gecko, until such time as the breach is cured. Notwithstanding the foregoing, Gecko may immediately suspend the Services, with or without prior notice to Customer, in order to avoid or mitigate irreparable harm to Gecko. Any suspension hereunder shall be without limitation of any other right or remedy available to Gecko.

11.5.    Either party may terminate this Agreement (including all then-active Order Forms) immediately upon written notice to the other party if the other party has a receiver or similar party appointed for all or substantially all of its property, is declared insolvent by a court of competent jurisdiction, ceases to do business in the ordinary course, files a petition in bankruptcy or has a petition filed against it in bankruptcy, becomes the subject of any court or administrative proceeding related to its liquidation or insolvency (whether voluntary or involuntary) that is not dismissed within ninety (90) days, or makes an assignment for the benefit of its creditors.

11.6.    Upon the termination or expiration of this Agreement or any subscription hereunder for any reason:

a.    Gecko will terminate access to the relevant Services, and all related rights granted by Gecko pursuant to this Agreement shall immediately and automatically terminate. b.    Customer shall pay all amounts that have accrued or are otherwise owed hereunder within ten (10) days following any termination or expiration of this Agreement. c.   Upon written request by Customer made within thirty (30) days after the effective date of expiration or termination, Gecko shall make available in format of Gecko’s choice to Customer for download one or more electronic files of any Customer Data stored in the terminated SaaS Services. After such thirty (30)-day period, Gecko shall have no obligation to maintain or provide any Customer Data related to the terminated SaaS Services. d.    If requested by a party, the other party shall promptly destroy or return to the requesting party, as directed in writing, all of the requesting party’s Confidential Information and other materials of the requesting party in such other party’s possession or under its control. Notwithstanding the foregoing, each party shall be entitled to retain any Confidential Information to the extent it has been advised by counsel that such retention is required to comply with applicable Law. e.    Any provision of this Agreement which, by its nature, would survive termination or expiration of this Agreement shall survive any such termination or expiration.

12.    Confidentiality.

12.1.    Each party that receives Confidential Information of the other party agrees that, unless the disclosing party gives its prior written authorization, it shall not: (a) use such Confidential Information other than pursuant to this Agreement; or (b) disclose any such Confidential Information to any third party except those directors, officers, employees, Consultants and agents of the receiving party who are required to have such Confidential Information in order to carry out the purposes of this Agreement and who have signed a non-disclosure agreement or are otherwise bound by confidentiality obligations in substance similar to the provisions hereof. The receiving party shall prevent the unauthorized use, disclosure, dissemination, or publication of such Confidential Information using at least the same degree of care that the receiving party uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care.

12.2.    The obligations of the parties under Section 12.1 shall not apply to the extent of any disclosure required pursuant to a duly authorized subpoena, court order, or government authority, provided that the receiving party has provided prompt notice and assistance to the disclosing party prior to such disclosure, so that such party may seek a protective order or other appropriate remedy to protect against disclosure.

12.3.    Any breach of the confidentiality obligations set forth in this Section 12 would constitute a material breach of this Agreement, which the breaching party acknowledges would cause irreparable harm to the non-breaching party, leaving it without an adequate remedy at Law. As such, any such breach shall entitle the non-breaching party to injunctive relief in addition to all other remedies, without necessity of posting of a bond or other security in connection therewith. The preceding sentence is not intended, nor shall it be construed, to limit a party’s right to dispute the factual basis underlying any contention that it has committed any breach.

12.4.    This Section 12 will remain in effect during the term of this Agreement and for a period of five (5) years following termination or expiration of this Agreement for any reason. Notwithstanding the foregoing, any Confidential Information that qualifies as trade secret under applicable Law shall remain subject to protection in accordance with such applicable Law notwithstanding the expiration of such five (5) year period.

12.5.    In the event that the provisions of this Section 12 are inconsistent with the provisions of any applicable non-disclosure (or comparable) agreement separately executed by the parties, then the terms of this Section 12 shall govern with respect to Confidential Information disclosed in connection with the subject matter of this Agreement.

13.    Proprietary Rights.

13.1.    As between the parties, all Intellectual Property Rights in and to the Services and all other Gecko IP are and shall remain the sole property of Gecko and its Affiliates and their respective licensors, as applicable, and Customer shall acquire no right of ownership or use with respect thereto except for the limited rights specified in Section 4. Without limiting the foregoing, Customer acknowledges that the Services and the inventions, know-how and methodology embodied therein are proprietary to Gecko and its Affiliates and licensors, as applicable, and contain Confidential Information of Gecko.

13.2.    Customer and/or Authorized Users may, but are not obligated to, from time to time provide Gecko with suggestions, comments, recommendations and/or feedback regarding the Services and/or Gecko’s related technologies (“Feedback”). All Feedback is and shall be given entirely voluntarily and without compensation. As between the parties, all Feedback shall be exclusively owned by Gecko and Gecko shall be freely entitled to reproduce, prepare derivative works of, disclose to third parties, display and perform (publicly or otherwise), sell, lease, license, distribute, and otherwise use and exploit any and all such Feedback, at its sole discretion, without obligation or liability of any kind to Customer or to any other Person.

14.    Beta Services. Certain Services may contain features or functionality made available to Customer to try at its option at no additional charge, designated as beta, pilot, limited release, developer preview, non-production, evaluation, or similar description (“Beta Services”). Notwithstanding anything to the contrary contained herein, if Customer has obtained access to Beta Services, then: (a) Customer may access and use such Beta Services solely in accordance with any additional limitations applicable thereto as specified in the Order Form and/or Documentation; (b) Gecko may terminate this Agreement as it pertains to the Beta Services at any time, for any reason or no reason, upon notice to Customer, and Customer may terminate this Agreement as it pertains to Beta Services at any time by permanently discontinuing further use of such Beta Services; and (C) all Beta Services are provided solely on an “as is” basis and none of the covenants, obligations, representations or warranties of Gecko set forth in this Agreement (including in Sections 3, 5, 7.2, 8 or 9) shall apply to Beta Services.

15.    Force Majeure. If either party is unable to perform any obligation (excluding any payment obligation) under this Agreement because of any matter beyond that party's reasonable control, such as any act of God, lightning, flood, exceptionally severe weather, fire, explosion, war, terrorism, pandemic, civil disorder, industrial disputes (whether or not involving employees of either party), acts of local or central government or other competent authorities, problems with telecommunications providers or the internet, attacks on networks or other cyber infrastructure, or other events beyond a party’s reasonable control (each, a “Force Majeure Event”), that party will have no liability (including any obligation to issue refunds or credits) to the other for such failure to perform; provided, however, that such party shall resume performance promptly upon removal of the circumstances constituting the Force Majeure Event.

16.    Publicity. Gecko may issue a press release announcing that Customer has become a customer of Gecko and may reproduce and display Customer’s name, logo, and trademarks on Gecko’s website and in brochures, social media and other marketing materials for the purpose of identifying Gecko’s relationship with Customer. Except as provided in the preceding sentence, all media releases, public announcements, and public disclosures by either party relating to this Agreement or its subject matter shall require the written agreement of the parties.

17.    Employee Non-Solicitation. Without Gecko’s prior written consent, Customer will not during the term of this Agreement and for a period of twelve (12) months thereafter, directly or indirectly, solicit for employment or employ any person who is or has been an officer, director, or employee of Gecko or any of its Affiliates at any time during the term of this Agreement; provided, however, that the foregoing shall not prohibit: (a) any general advertisements not targeted at Gecko, any of its Affiliates, or any of their respective personnel, (b) any solicitation of individuals who have terminated their employment with Gecko and its Affiliates and have not been employed for a period of at least one (1) year prior to any such solicitation, or (C) the hiring of any individuals as a result of any of the aforementioned solicitations.

18.    Export Compliance. The Services and associated technical data are subject to U.S. export control Laws and may be subject to export or import Laws in other countries. Gecko authorizes use of the Services and associated technical data only with third party software and hardware obtained and used in compliance with applicable export control Laws. Each party shall comply with applicable export control Laws in providing and using the Services. Without limiting the foregoing, Customer represents, warrants and covenants: (a) that it is not named on the U.S. Department of Treasury, Office of Foreign Asset Controls list of Specially Designated Nationals and Blocked Persons or on any other U.S. or other applicable government lists of prohibited, restricted or sanctioned parties; (b) that it will not and does not intend to use or permit anyone else to use any of the Services for or in connection with the design, development or production of nuclear, biological or chemical weapons, missiles or unmanned aerial vehicles; and (C) that it will not permit Authorized Users to access or use the Services (i) if they are located in any country or territory subject to territorial embargoes of the United States, United Kingdom, European Union, Australia or Canada, including Cuba, Iran, North Korea, Syria, or the occupied Crimea, Donetsk and Luhansk regions, (ii) if they are listed on any U.S. or other applicable government list of prohibited, restricted or sanctioned parties; or (iii) otherwise in violation of any U.S. or otherwise applicable export Law.

19.    General Provisions.

19.1.    Any forbearance or delay on the part of either party in enforcing any of its rights under this Agreement shall not be construed as a waiver of such right to enforce the same for such occurrence or any other occurrence.

19.2.    Gecko may modify this Agreement from time to time.  If a modification materially impacts this Agreement, Gecko will use reasonable efforts to notify Customer.  Any changes to this Agreement will be effective if Customer assents to such changes or upon renewal, except changes required by law or as necessary for new features will immediately become effective to the extent necessary to comply with such law or as required to use such new features. 

19.3.    This Agreement shall be governed by, and construed in accordance with, the substantive Laws of the Commonwealth of Pennsylvania and applicable federal Laws without giving effect to applicable conflicts of Law provisions. Any action arising from or relating to this Agreement shall be brought in a state or federal court of competent jurisdiction in Pittsburgh, Pennsylvania, and the parties irrevocably and unconditionally consent to such exclusive jurisdiction, forum, and venue of such courts. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY SUCH ACTION. Nothing contained in this Section 19.3 shall prevent either party from seeking injunctive relief from any court of competent jurisdiction.

19.4.    Neither party shall assign or otherwise transfer this Agreement or delegate any duty or assign or otherwise transfer any right hereunder, including by operation of Law, without the prior written consent of the other party in each case. Notwithstanding the foregoing, Gecko may freely assign or otherwise transfer this Agreement without Customer’s consent to any Affiliate or in connection with a merger, corporate reorganization, or sale of all or substantially all of Gecko’s business or assets to which this Agreement relates. Any purported assignment or transfer in contravention of this Section 19.4 shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective permitted successors and permitted assigns.

19.5.    Unless otherwise specified in this Agreement, any notice required or permitted to be sent under this Agreement shall be sent, in writing, by certified mail (return receipt requested), overnight courier, or personal delivery, to Gecko or to Customer at the respective address first set forth above, to the attention of the Legal Department, or as changed from time to time by notice. Such notices shall be effective when received.  A copy of any notice sent to Gecko shall also be sent electronically to legal@geckorobotics.com.

19.6.    If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal or unenforceable provision(s) shall be replaced by a valid, legal and enforceable provision or provisions that comes closest to the intent of the parties underlying the invalid, illegal or unenforceable provision(s).

19.7.    The headings and other captions in this Agreement are for convenience only and shall not be used in interpreting, construing, or enforcing any of the terms of this Agreement. The words “including,” “include” and “includes,” and the phrases “by way of example,” “such as” and “for example” when used in this Agreement shall each be deemed to be followed by the words “without limitation.” Each party acknowledges that it has had the opportunity to review this Agreement with legal counsel of its choice, and there shall be no presumption that ambiguities shall be construed or interpreted against the drafter.

19.8.    This Agreement does not create or evidence a partnership, joint venture, or any other fiduciary relationship between the parties. The parties are independent, and each has sole authority and control of the manner of, and is responsible for, its performance of this Agreement. Neither party may create or incur any liability or obligation for or on behalf of the other party, except as described in this Agreement.

19.9.    This Agreement (together with all Order Forms and SOWs entered into hereunder) constitutes the entire agreement between the parties with regard to the subject matter hereof and supersedes any and all previous communications, whether oral or written, with respect to such subject matter. Neither the course of conduct between parties nor trade usage shall modify or alter this Agreement. Any terms in business forms or purchase orders issued by Customer will not amend or modify this Agreement; any such documents are for administrative purposes only.

19.10.    This Agreement, and any Order Form or SOW, may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. This Agreement, and any Order Form or SOW, may be executed and delivered by email and such electronic copy shall have the same effect as an original.