MASTER SERVICES AGREEMENT

MASTER SERVICES AGREEMENT

This Master Services Agreement (“Agreement”) is made between Zitara Technologies, Inc., a Delaware corporation having its principal place of business at 1062 Folsom St., Fl. 2, San Francisco, CA 94103 (“Zitara”) and Customer (defined below) and governs the Customer’s use of the Zitara Assets (as defined below). 

“Customer” means a person or entity that accepts and agrees to the terms of this Agreement as of the earlier date (“Effective Date”) where such person or entity either clicks a box indicating acceptance of this Agreement or uses a Zitara Asset. Zitara reserves the right to modify or update this Agreement in its sole discretion, the effective date of such updates and/or modifications will be the earlier of: (i) 30 days from the date of such update or modification; or (ii) Customer’s continued use of the Zitara Asset(s).

IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE ZITARA ASSETS. THE ZITARA ASSETS ARE INTENDED FOR THE CUSTOMER AND ITS AUTHORIZED USERS ONLY AND ARE NOT FOR USE BY CHILDREN UNDER 13 YEARS OF AGE. IF AN INDIVIDUAL IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, SUCH PERSON REPRESENTS AND WARRANTS THAT IT HAS THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT AND THIS AGREEMENT APPLIES TO SUCH ENTITY WHICH IS DEEMED THE CUSTOMER.

If Customer and Zitara have executed a written agreement governing Customer’s access to and use of the Zitara Assets as a Zitara customer, then the terms of such signed agreement will govern and will supersede this Agreement. The parties agree as follows:

1. Definitions

1. Definitions
   1. “Affiliate(s)” means any entity that now or hereafter controls, is controlled by, or is under common control with, a specified entity. Such entity shall be deemed to be an Affiliate only so long as such control exists. 
   2. “Authorized Partner” means a third-party partner authorized by Zitara who will install and/or support the Zitara Hardware and perform services on behalf of Zitara.
   3. "Authorized User" means an individual, whether for themself or on behalf of their entity, that are authorized by Customer to use the Solution.
   4. "Beta Features" means any Zitara Asset features, functionality or services which Zitara may make available to Customer to try at no additional cost, and which is designated as beta, non-production or another similar designation.
   5. “Confidential Information" means any information of a confidential or proprietary nature provided by a party to the other party, which includes any information that should be reasonably understood as confidential under the circumstances, including the terms of this Agreement and each Order Form, and: (i) with respect to Zitara the Zitara Trained Algorithms and Usage Data; and (ii) with respect to Customer, the Output, Reports, Customer Data and Customer Interface Information. Confidential Information does not include information that: (A) is or becomes public knowledge without any action by, or involvement of, the party to which the Confidential Information is disclosed; (B) is documented as being known to the Receiving Party prior to its disclosure by the Disclosing Party; (C) is independently developed by Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (D) is obtained by Receiving Party without restrictions on use or disclosure from a third party.
   6. "Customer Data" means Training Data and all other data provided by, or on behalf of, Customer in connection with or by means of the Software. Notwithstanding anything to the contrary in this Agreement, Customer Data does not include Usage Data.
   7. “Customer Equipment” means the Customer System Batteries and Customer’s facilities and datacenters that connect to the Zitara Hardware.
   8. “Customer Interface Information” means Customer Equipment interface information such as interface documentation, configuration information (e.g., "points lists" or "points maps", a common industry term), part numbers, specifications and diagrams.
   9. "Customer System Batteries" means battery asset(s) at the Deployment Location(s) specified in the Order Form.
   10. “Deployment Location” means the location specified in the applicable Order Form where the Zitara Hardware will be deployed and used by Customer.
   11. “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Solution, as may be provided or made available by Zitara to Customer, whether in written or electronic form, including all modifications, updates, upgrades thereto and derivative works thereof.
   12. "Insights Service" means a service performed by Zitara (i.e., whether by means of human or machine resources including software), on behalf of Customer pursuant to a written agreement between the parties prior to this Agreement, that analyzed Training Data from the Customer System Batteries in order to generate reports.
   13. "Malicious Code" means any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms that would: (i) cause the Software to cease functioning; (ii) damage or corrupt any Zitara owned or controlled data, programs, equipment, systems, servers or communications; or (iii) interfere with the operations of the Software (e.g., Trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead or trap door devices).
   14. "Order Form" means each order document executed in writing between the parties for the purchase of a subscription and/or license to the Solution.
   15. “Output” means output generated by the Software by processing Customer Data. 
   16. "Prohibited Content" means content that: (i) is illegal under any applicable law; (ii) violates any third-party rights including, but not limited to, privacy, intellectual property rights and trade secrets; (iii) contains false, misleading, or deceptive statements, depictions, or practices; (iv) contains Malicious Code; or (v) is otherwise objectionable to Zitara in its sole, but reasonable, discretion.
   17. “Quantity” means a number of product or service entitlements as specified in an Order Form. 
   18. “Reports” means reports detailing Customer’s output and usage of the Solution delivered by Zitara on a calendar quarterly basis in arrears for a period specified in the Order Form.
   19. "Software" means software licensed to Customer under this Agreement that Zitara develops and maintains, including the Beta Features, Trained Algorithm, and all modifications, enhancements, updates, upgrades, patches, workarounds, and fixes thereto, and any derivative works, with respect to each of the foregoing.
   20. “Solution” means the Hardware, Software, Documentation, and other services, purchased by Customer each as specified on an applicable Order Form.
   21. "Subscription Period" is the length of the subscription specified in the Order Form.
   22. "Support" means Zitara Hardware Support and Software Support as set forth in Section 3(f) below. 
   23. “Taxes” means any and all customs, duties, sales, use, value added, withholding, or other taxes, federal, state or otherwise, however designated, which are levied or imposed because of the transactions contemplated by this Agreement.
   24. “Training Data” means data (e.g., lab and/or professional services data associated with Customer System Batteries) transferred to Zitara by Customer for the purpose of creating, developing and improving the Trained Algorithm which can include data provided to Zitara by Customer for Zitara’s performance of the Insights Service. 
   25. "Trained Algorithm" means a customized version of the Software, for a specific Deployment Location as specified in the Order Form, built upon and updated by using Training Data and/or Customer Data.
   26. “Usage Data” means data collected by Zitara pertaining to Customer’s interaction with the Software which includes, but is not limited to, performance of the Software, metrics and other measures of Customer’s use of the Software and its operation.
   27. “Zitara Assets” means Zitara Hardware, the Software, Trained Algorithm and Documentation.
   28. “Zitara Hardware” means a Zitara owned hardware device, including its operating system and its embedded third party software (e.g., firmware), upon which the Software and Training Data will be installed and used to create Output.
2. Grant of License to the Software; Restrictions.‍
   1. Grant of License to the Solution. Subject to the terms of this Agreement and the applicable Order Form, Zitara grants Customer, solely for Customer's internal business operations up to the Quantity and at the Deployment Location, each as specified on the Order Form, a limited, non-exclusive, non-sublicensable, non-transferable (except as otherwise provided herein) license during the Subscription Period to (i) use the Software as installed within the Zitara Hardware and (ii) operate and use the Solution, each in accordance with the Documentation and this Agreement
      ‍
      Customer may permit its Affiliates’ employees and authorized contractors to serve as Authorized Users of the Solution, subject to the terms of this Agreement and the applicable Order Forms, and provided any use of the Solution by such Authorized Users will be for the sole benefit of Customer.‍
   2. Restrictions. Customer will not (and will not authorize or permit any third party to): (i) allow anyone other than Authorized Users to access and use the Solution; (ii) share any Zitara issued access credentials with any third party; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Zitara Assets; (iv) modify, adapt, or translate the Zitara Assets or remove or modify any proprietary markings or restrictive legends placed on or within the Solution; (v) make copies, store, or archive, any portion of the Zitara Assets without the prior written permission of Zitara; (vi) use the Solution in violation of any applicable law; (vii) introduce, any Malicious Code into the Software or Zitara Hardware; or (viii) exploit the Software or Zitara Hardware in any unauthorized manner including by circumventing any process Zitara has put in place to safeguard the Software or by using flood pings, denial-of-service attacks, or attempt to access Zitara Hardware or Software components or interact with the Zitara Hardware or Software in a way that is not allowed under the Documentation or otherwise not authorized by Zitara (together, (i) through (viii) the "Restrictions"). The foregoing Restrictions will be inapplicable to the extent prohibited by applicable law.
   3. ‍Beta Features. Beta Features made available by Zitara are provided to Customer for testing purposes only. Zitara makes no commitments to provide Beta Features in any future versions of the Solution. Customer is not obligated to use Beta Features. Zitara may immediately and without notice remove Beta Features for any reason without liability to Customer. Notwithstanding anything to the contrary in this Agreement, Zitara does not provide Support for Beta Features. For clarity, all Beta Features are provided "AS IS" without warranty of any kind.
   4. ‍Third-Party Applications. The Software may integrate with third party products, services, tools, protocols or applications that are not owned or controlled by Zitara ("Third-Party Application(s)"). Zitara does not license or endorse any Third-Party Applications. This Agreement does not apply to such Third-Party Applications including Customer’s use thereof. ZITARA HAS NO LIABILITY OR OBLIGATION OF ANY KIND RELATED TO ANY THIRD-PARTY APPLICATIONS USED BY CUSTOMER.

3. Zitara Obligations for the Solution. 
   
   1. The Solution. Zitara will provide the Solution in conformance with this Agreement, the Order Form(s) and applicable Documentation.
   2. Zitara Hardware. Zitara Hardware is licensed (not sold) to Customer during the Term as part of the Solution at the Deployment Locations as specified on each Order Form. For clarity, Zitara retains title to all Zitara Hardware. Zitara Hardware will have the Software pre-installed by Zitara. 
   3. Software. The Software is licensed not sold to Customer. Zitara will provide the Software in conformance with this Agreement, the Order Form(s) and applicable Documentation.
   4. Solution Implementation. Promptly following the Effective Date, and pursuant to the specifications agreed upon in writing between the parties (e.g., specified within the Order Form or within a statement of work for Professional Services), Zitara will (or through one of Zitara’s Authorized Partners) implement the Software and Zitara Hardware with the Customer Equipment at the Deployment Location(s) specified in the Order Form.
   5. Reports. On a calendar quarterly basis during the Subscription Period, or such other license term specified in an Order Form, Zitara will deliver Reports to Customer.
   6. Support.
      
      1. Hardware Support. During each Subscription Period, Zitara will provide the Zitara Hardware Support Services set forth in Exhibit A hereto solely for the Zitara Hardware.
      2. Software Support & Updates. Unless stated otherwise in the applicable Order Form, if Customer experiences any Errors (as defined in Exhibit B) in its use of the Software, Zitara will  provide “Software Support” set forth in Exhibit B hereto in order to resolve the issue or provide a suitable workaround. The fee for Software Support is included in the cost of the subscription set forth on the Order Form. Software updates will be provided by Zitara remotely over-the-air (“OTA”) or via secure remote access from time to time during the Term.
   7. Software Changes. Customer acknowledges that in order to provide improved experience with the Software, Zitara may make changes to the Software provided Zitara will not materially decrease the overall functionality of the Software.
   8. Professional Services. From time to time, upon the mutual, written agreement of the parties, Zitara may provide certain implementation and other consulting services, including integrations, to Customer as described on an Order Form, or other document executed by the parties (together, "Professional Services").
4. Customer Obligations. 
   
   1. Deployment Locations & Customer Equipment Connections. Customer will be responsible for maintaining all connections, between the Customer Equipment and Zitara Hardware, at the Deployment Locations necessary for Customer to access and use the Solution.
   2. Maintenance of the Customer Equipment & Zitara Hardware. Customer will maintain all Customer Equipment and Zitara Hardware in good operating condition (which will include such maintenance as general cleaning and maintaining appropriate environmental conditions for each of the foregoing) in accordance with the Documentation. Zitara is not responsible for any degradation of the Solution or failure to properly provide the Solution caused by Customer's failure to maintain the Zitara Hardware and/or Customer Equipment. 
   3. Deployment Location and Customer Equipment Access. Customer will provide reasonable access to the Deployment Locations and Customer Equipment as reasonably necessary for Zitara to complete applicable Professional Services, perform Zitara Hardware and/or Software Support, and update the Software as required or permitted hereunder including by means of remote access and physical access. Zitara will abide by Customer's written policies, provided to Zitara in advance, with respect to access to the Deployment Locations and Customer Equipment. If Customer is unable to give Zitara access as described herein, Zitara will not be responsible for any resulting degradation to the Solution.
   4. Customer Equipment Requirements & Interface Information. 
      
      1. Customer will obtain and maintain: (A) any equipment and ancillary services needed to connect to, access or otherwise use the Solution within the Deployment Locations including the resources outlined below and any modems, hardware, servers, functional test equipment, software, operating systems, networks and the like; and (B) any consents or other permissions required to have Zitara personnel enter and work at the Deployment Location in connection with providing the Solution and any support thereto, and to collect data and other information from the Solution located at the Deployment Locations. 
      2. Customer must provide Zitara the Customer Interface Information, as specified in the Documentation or otherwise agreed upon in writing between the parties, promptly following the Effective Date and thereafter as requested by Zitara from time to time in writing it being understood that Zitara cannot deliver the Software, or create the Trained Algorithm, without such Customer Interface Information. Customer will be reasonably be available to answer questions and requests from Zitara related to the Customer Interface Information (e.g., via email, or phone/video). 
   5. Customer Insurance Requirements. During the Term, and at all times while the Solution is located at the Deployment Locations, Customer agrees to maintain adequate and customary insurance that covers the full value of the Solution including, but not limited to, comprehensive general liability insurance (and/or equivalent coverage under an "umbrella" policy), form premises and operations, independent contractors, personal injury, death, contractual, and broad form property damage liability coverage (e.g., including for coverage of the Solution in the event of fire, safety violations and earthquakes). Upon reasonable written request, Customer will deliver Zitara applicable certificates of insurance naming Zitara as an additional insured and will reasonably endeavor to notify Zitara prior to any termination, expiration or change in coverage provided thereunder.
   6. Safety & High-Risk Applications. CUSTOMER IS RESPONSIBLE FOR THE SAFETY OF THE USE OF THE SOLUTION INCLUDING WITH RESPECT TO PROTECTING THE PEOPLE AT, AND THE PROPERTY OF, THE DEPLOYMENT LOCATIONS. CUSTOMER WILL USE THE SOLUTION IN COMPLIANCE WITH ALL APPLICABLE LAWS, RULES, REGULATIONS, CODES AND STANDARDS PERTAINING TO SAFETY AND EMERGENCY AS WELL AS THE PROCEDURES AND GUIDELINES PROVIDED BY ZITARA. CUSTOMER ACKNOWLEDGES AND AGREES ZITARA HARDWARE PRODUCTS ARE MANUFACTURED UNDER NORMAL INDUSTRIAL CONDITIONS, WHICH MAY NOT SATISFY CUSTOMER REQUIREMENTS APPLICABLE TO HIGH-RISK APPLICATIONS (E.G., ANY APPLICATION WHERE FAILURE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR PROPERTY DAMAGE). ZITARA EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR ANY HIGH-RISK APPLICATION OF ANY KIND.
   7. Modifications to the Solution. If Customer alters the Solution in any way outside of the Documentation, or without the written consent of Zitara, Zitara will not be responsible for any disruption or decline in performance of the Solution.
   8. Export. The Solution is subject to export control laws and regulations. Customer may not access or use the Solution or any underlying information or technology except in full compliance with all applicable United States export control laws. Neither the Solution nor any underlying information or technology may be accessed or used: (i) by any individual or entity in any country to which the United States has embargoed goods; or (ii) by anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities. 
5. Customer Data & Interface Information Licenses & Protections.
   
   1. Customer Data & Interface Information Transfer. Customer may transfer Customer Data and Customer Interface Information to Zitara: (i) in connection with its use of the Software; and (ii) via CSV files or other similar data files sent to Zitara by an agreed upon mechanism (e.g., via email or a managed file transfer service) or an API key to the Customer Equipment to be provided by Customer. 
   2. Customer Data and Customer Interface Information Licenses. Zitara uses Customer Data: (i) to provide the Solution and Output; (ii) to create and improve the Trained Algorithm; (iii) to develop and maintain the Software; and (iv) to create and develop Usage Data. Zitara uses Customer Interface Information to create and improve the Trained Algorithm and Software. Customer grants Zitara a limited license during each Subscription Period to use Customer Data and Customer Interface Information as provided for in this Section 5(b) and in accordance with this Agreement.
   3. Usage Data. While Customer uses the Software, Zitara will generate Usage Data. Zitara will use Usage Data to improve and develop the Software.
   4. CEII. Customer will not send to Zitara any CEII. As between the parties, Zitara will have no obligation with respect to CEII except as otherwise provided under this Agreement. “CEII” means critical electric infrastructure information as defined under applicable laws (e.g., section 215A(d) of the Federal Power Act).
6. Fees. 
   
   1. Fees. Customer will pay all fees set forth in the applicable Order Form. Unless otherwise provided for in an Order Form: (i) all amounts are due and payable to Zitara within thirty (30) days from the date of the Order Form; and (ii) all payments are non-cancellable and non-refundable.
   2. Taxes. Customer will pay all applicable Taxes excluding only those based on Zitara’s net income. If Customer is compelled to make a deduction or set-off for any such Taxes, Customer will pay Zitara such additional amounts as necessary to ensure receipt by Zitara of the full amount Zitara would have received but for the deduction. Any applicable direct pay permits or valid Tax-exempt certificates must be provided to Zitara prior to the execution of this Agreement. If Zitara is required to collect and remit Taxes on Customer’s behalf, Zitara will invoice Customer for such Taxes, and Customer will pay Zitara for such Taxes in accordance with Section 6(a).
   3. Late Payments. In the event that Zitara does not receive any invoiced amount by the due date as set forth in Section 6(a), without limiting its rights and remedies, Zitara may: (i) charge interest on the outstanding balance (at a rate not to exceed the lesser of one and one half percent (1.5%) per month or the maximum rate permitted by law); (ii) condition future Software renewals and additional Order Forms on payment terms shorter than those specified in Section 6(a); and/or (iii) suspend access to and terminate for failure to pay (if applicable) the Software pursuant to Section 7(b). 
7. Term & Termination. 
   
   1. Term. The “Term” of the Agreement commences on the Effective Date and will continue in effect thereafter so long as there is an active Subscription Period or as otherwise specified in an Order Form, or until terminated earlier in accordance with Section 8(c). For clarity, each Subscription Period will be set forth in the applicable Order Form.
   2. Suspension Rights & Termination. Zitara may suspend Customer’s access to, or use of, the Solution if: (i) any amount due to Zitara under any invoice is past due and such amount is not paid within 10 days of written notice from Zitara; and (ii) any use of the Solution by Customer or its Authorized Users that in Zitara's reasonable judgment threatens the security, integrity or availability of the Solution. Zitara will: (A) provide Customer with written notice and an opportunity to remedy such violation or threat prior to any such suspension; (B) where practicable limit the suspension based on the circumstances leading to the suspension; and (C) remove the suspension as quickly as reasonably practicable after the circumstances leading to the suspension have been resolved.
   3. Termination.  Either party may terminate this Agreement and/or any Order Form: (i) upon thirty (30) days' notice to the other party if the other party materially breaches this Agreement and such breach remains uncured at the expiration of such thirty (30) day period; or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors.
   4. Effect of Termination. If Customer terminates this Agreement in accordance with Section 7(c)(i), Zitara will reimburse Customer on a pro-rata basis for any pre-paid fees allocable to the remaining Subscription Period as of the date of such termination. Upon termination or expiration of this Agreement: (i) the licenses granted herein immediately terminate; (ii) Customer will cease all access or use of the Solution; (iii) Customer will return the Solution or allow Zitara access to the Deployment Locations to remove the Zitara Hardware; and (iv) Zitara will, upon written request and within 30 days of such request, delete all Customer Data and Customer Interface Information received and/or processed on behalf of Customer during the Subscription Period.
   5. Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 8 (Confidentiality), 9 (Ownership), 11 (Indemnification), 12 (Limitation on Liability), and 15 (Miscellaneous, as applicable).
8. Confidentiality. 
   
   1. Each party that receives ("Receiving Party") Confidential Information of the other party ("Disclosing Party") will protect and preserve such Confidential Information as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use or disclose the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement and applicable Order Forms.  
   2. Receiving Party may disclose, distribute, or disseminate Disclosing Party's Confidential Information to any of its officers, directors, members, managers, partners, employees, including to the same with respect to its Affiliates, contractors, or agents (its "Representatives"), provided Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives.
   3. A Receiving Party will not violate its confidentiality obligations if it discloses Disclosing Party's Confidential Information if required by applicable laws, including by court subpoena or similar instrument so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.
   4. Receiving Party (i) may retain any Confidential Information to comply with any applicable law, rule, regulation, or the Receiving Party’s document retention policies and (ii) is not required to erase or destroy any Confidential Information contained in back up storage made in the ordinary course of business provided that all retained Confidential Information remains subject to the restrictions of this Agreement.
   5. Each party acknowledges that any violation or threatened violation of this Section 8 may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies.
9. Ownership. 
   
   1. Zitara Property. As between the parties, Zitara owns and retains all right, title, and interest in and to the Zitara Solution and Usage Data. Except for the limited license granted to Customer in Sections 2(a), Zitara does not by means of this Agreement or otherwise transfer any other rights to Customer.
   2. Customer Property. As between the parties, Customer owns and retains all right, title, and interest in and to the Customer Data, Customer Interface Information, Reports and Output. Except for the licenses granted to Zitara in Section 5(b), Customer does not by means of this Agreement or otherwise transfer any other rights to Zitara.
   3. Feedback. Customer may provide comments, suggestions and recommendations to Zitara with respect to the Zitara Assets (including, without limitation, comments, suggestions and recommendations with respect to modifications, enhancements, improvements and other changes to each of the foregoing) (collectively, "Feedback"). Zitara may freely use and exploit any such Feedback without any obligation to Customer, unless otherwise agreed upon by the parties in writing.
10. Representations & Warranties; Disclaimer.
    
    1. Mutual Representations and Warranties. Each party represents and warrants it has validly entered into this Agreement and has the legal power to do so.
    2. Customer Representations and Warranties. Customer represents and warrants it: (i) is entitled to transfer, or enable the transfer of, all Customer Data and Customer Interface Information to Zitara; (ii) has all rights necessary to grant Zitara the licenses set forth in this Agreement; (iii) will not transmit any Prohibited Content to Zitara by means of the Software or as required hereunder including for Zitara’s provision of Support hereunder; and (iv) it will be responsible for ensuring that the Customer System Batteries are operated and maintained in a safe manner.
    3. Disclaimer. WITH THE EXCEPTION OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 10, THE ZITARA SOLUTION AND BETA FEATURES ARE PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. ZITARA AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSES, AND NON-INFRINGEMENT. ZITARA DOES NOT WARRANT THAT THE ZITARA SOLUTION OR BETA FEATURES: (I) ARE ERROR-FREE; (II) WILL PERFORM UNINTERRUPTED; OR (III) WILL MEET CUSTOMER'S REQUIREMENTS. ZITARA MAKES NO REPRESENTATIONS OR WARRANTIES ON BEHALF OF ANY AUTHORIZED PARTNER.
11. Indemnification.
    
    1. By Zitara. 
       
       1. Zitara will defend Customer, and its Affiliates, including each of the foregoing's officers, directors, employees and agents (collectively, "Customer Indemnified Parties"), from any third-party claim, demand, dispute, suit or proceeding, and Zitara will indemnify Customer Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, attorneys' fees), finally awarded against the Customer Indemnified Parties to such third party, by a court of competent jurisdiction or agreed to in settlement, alleging that the Zitara Assets, including Customer's permitted use thereof, infringes or misappropriates any patent, trademark or copyright of such third party.
       2. If Zitara becomes, or in Zitara’s opinion is likely to become, the subject of an infringement or misappropriation claim, Zitara may, at its option and expense: (a) procure for Customer the right to continue using the Zitara Assets; (b) replace the Zitara Assets (including any component part) with a non-infringing substitute subject to Customer's prior written approval; or (c) modify the Zitara Assets so that it becomes non-infringing. If none of the foregoing alternatives are available, Zitara shall notify Customer, and Customer may elect to terminate the license immediately pursuant to Section 7(c).
       3. Zitara will not be obligated to defend or be liable for costs or damages solely to the extent the infringement or misappropriation is attributable to: (a) any unauthorized use, reproduction, or distribution of the Zitara Assets or Zitara’s intellectual property rights by the Customer Indemnified Parties which is the subject of the claim; or (b) any unauthorized combination of, or modification to, the Zitara Assets or Zitara’s intellectual property rights, other than as expressly approved by Zitara that causes the underlying claim where such claim would have not occurred but for such unauthorized act.
       4. THIS SECTION 11(A) STATES ZITARA’S ENTIRE RESPONSIBILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD-PARTY CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
    2.  By Customer. Customer will defend Zitara, and its Affiliates, including each of the foregoing's officers, directors, employees and agents (collectively, "Zitara Indemnified Parties"), from any third-party claim, demand, dispute, suit or proceeding, and Customer will indemnify the Zitara Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, attorneys' fees), finally awarded against the Zitara Indemnified Parties related to: (i) Customer or an Authorized User violating a Restriction; (ii) Customer's breach of Section 10(b) (Customer Representations & Warranties); (iii) any allegation by a governmental body that use of Customer Data, as permitted by Zitara under this Agreement or at Customer's request or direction, has violated any applicable law; or (iv) the death of any person or damages to any property or the environment to the extent such claims were caused by Customer’s negligence or willful misconduct in relation to the Customer Equipment including any located at a Deployment Location.
    3. Indemnification Process. The indemnified parties will: (i) give the indemnifying party prompt written notice of any claim, action or demand for which indemnity is claimed; (ii) give the indemnifying party sole control over the defense and settlement of the claim, provided that the indemnifying party will not settle any claim that involves the payment of money or acknowledgement of wrongdoing on the part of the indemnified parties without indemnified parties' prior written approval such approval not to be unreasonably withheld, conditioned or delayed; and (iii) provide the indemnifying party with reasonable cooperation, at the indemnified parties' expense, in connection with the defense and settlement of the claim.
12. Limitation on Liability. 
    
    1. NEITHER PARTY, NOR ITS AFFILIATES, NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, OR REPRESENTATIVES OF ANY OF THEM, WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, THAT MAY ARISE OUT OF THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD AND WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, SERVICES LIABILITY OR OTHERWISE.
    2. EXCEPT WITH RESPECT TO UNCAPPED CLAIMS AS DEFINED BELOW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES, TO THE OTHER PARTY FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER FOR USE OF THE ZITARA ASSETS DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
       
       THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES WHICH WILL BE THE CLAIMANT'S SOLE AND EXCLUSIVE REMEDY.
    3. "Uncapped Claims" means any claim or liability associated with: (i) either party's respective indemnification obligations under Section 11; (ii) any breach of confidentiality under Section 8 by either party; or (iii) any liability of a party which cannot be limited under applicable law, including gross negligence, recklessness, intentional misconduct, or violation of the other party’s intellectual property rights.

13. Insurance. Zitara will maintain in full force and effect during the Term:
    
    1. Commercial general liability insurance on an occurrence basis for bodily injury, death, property damage, and personal injury, with coverage limits of not less than $2,000,000 per occurrence and $4,000,000 general aggregate for bodily injury and property damage; 
    2. Worker's compensation insurance as required by applicable law; and
    3. Technology Errors & Omissions and Cyber-risk on an occurrence or claims-made form, for limits of not less than $2,000,000 annual aggregate covering liabilities for financial loss resulting or arising from acts, errors or omissions in the rendering of the Zitara Assets, or from data damage, destruction, or corruption, including without limitation, unauthorized access, unauthorized use, virus transmission, denial of service, and violation of privacy from network security failures in connection with the Service. 
       
       Insurance carriers will be rated A-VII or better by A.M. Best Provider. Zitara’s coverage will be considered primary without right of contribution of Customer's insurance policies. In no event will the foregoing coverage limits affect or limit in any manner Zitara’s contractual liability for indemnification or any other liability of Zitara under this Agreement.

14. Force Majeure. Except for Customer's payment obligations hereunder, neither Zitara nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action (each, a "Force Majeure Event"). For clarification, events caused by a party's own action are not Force Majeure Events. If a Force Majeure Event prevents Zitara from providing the Service for at least thirty (30) consecutive days, either of the parties may immediately terminate this Agreement and any Order Forms, by providing written notice to the other.
15. Miscellaneous. This Agreement is the entire agreement between the parties and supersedes all prior agreements and understandings concerning the subject matter hereof. The parties are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between the parties. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement. This Agreement is governed by the laws of California without reference to conflicts of law rules. For any dispute relating to this Agreement, the parties consent to personal jurisdiction and the exclusive venue of the courts in San Francisco County, California. Any notice provided by one party to the other under this Agreement will be in writing and sent by overnight courier or certified mail (receipt requested) to the address above. If any provision of this Agreement is found unenforceable, this Agreement will be construed as if it had not been included. Neither party may assign this Agreement without the prior, written consent of the other party, except that either party may assign this Agreement without such consent in connection with an acquisition of the assigning party or a sale of all or substantially all of its assets. To the extent there is an inconsistency between the terms of the Agreement or an Order Form, such documents and their terms will be controlled in the following order of precedence: (i) Order Form; (ii) Agreement.

Exhibit A

Zitara Hardware Support

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Unless otherwise stated in the Order Form, Zitara will provide the following “Zitara Hardware Support Services” solely for Zitara Hardware during each Subscription Period:

1. Support Requests. 
   
   1. Zitara will respond to support requests from Customer related to Zitara Hardware, as provided for in Exhibit A Section 2 below, Monday through Friday (during business hours, Pacific Standard Time) (each, a “Support Request”). Customer must provide all Support Requests to Zitara in writing via email to: support@zitara.com.
   2. Zitara will first perform Zitara Hardware Support Services for Support Requests remotely to determine the cause of issues underlying a Support Request and whether they are attributable to a “Zitara Hardware Error” or to a Support Exclusion (defined below). Zitara will determine Support Requests in its sole discretion and attempt to remedy Zitara Hardware Errors initially by means of “Remote Recovery.” Customer must provide Zitara Remote Recovery access immediately upon Zitara’s request in order for Zitara to begin Support for a Support Request. Software Errors will be subject to the terms of Exhibit B not Exhibit A.
2. Zitara Hardware Support Services Priority Levels & Timeframes. 
   
   1. Zitara will establish the Zitara Hardware Error Priority Level of a Zitara Hardware Error and the corresponding Support Request case in its sole discretion and will use its best efforts to adhere to the Response Times and Resolution Times set forth below. 
   2. Zitara Hardware Error Response Times are calculated from Zitara’s receipt of the Support Request. Zitara Hardware Error Resolution Times are calculated from Zitara’s receipt of Remote Recovery access under Exhibit A Section 1(b) above.
   3. If Zitara is unable to remedy the Zitara Hardware Error by Remote Recovery, Zitara will repair or replace each Zitara Hardware Error, which will include Customer Deployment Location on-site support for such Zitara Hardware Error (during routine day shift business hours), at no additional charge to Customer.
   4. The following Priority Levels, Response Times and Resolution Times apply to Zitara Hardware Errors:

The Zitara Hardware Support Services are Customer’s sole and exclusive remedy for Zitara Hardware Errors. 

3. Support Exclusions. Zitara Hardware Support Services will not cover any of the following “Support Exclusion(s)”: 
   
   1. Unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the noncompliance;
   2. If the issue was caused by Customer's non-compliance with the terms of this Agreement, including but not limited to, any misuse or unauthorized modifications to the Solution;
   3. If the issue was caused by or is attributable to any third-party hardware, software or services; 
   4. If the issue is due to the Customer's failure to maintain an adequate environment (as instructed by Zitara) including failures attributable to the Deployment Locations and/or Customer Equipment;
   5. If Customer uses the Solution outside of the Deployment Location(s); 
   6. If the issue is due to reconstructing, adjusting or repairing any aspect of the Solution by Customer or a third party not authorized by Zitara; and/or
   7. For any Force Majeure Event.

If Zitara determines the issue under any Support Request is due to a Support Exclusion, Zitara (or its authorized agent) may fix such Zitara Hardware Errors upon written notice to Customer but such work will be done at Customer's sole cost and pursuant to Zitara’s invoice. For clarity, Customer will pay for all necessary repairs and/or replacements to complete Support Request issues attributable to Support Exclusions. Customer will provide all reasonable assistance and cooperation to Zitara (including access to the Deployment Locations) to diagnose issues and as reasonably necessary to enable Zitara to resolve any Support Request.

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EXHIBIT B 

SOFTWARE SUPPORT SERVICES SCHEDULE

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This Exhibit B “Software Support Services Schedule” sets forth the terms on which Zitara provides technical support  to Customer for the Software (“Software Support Services”).

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1. Definitions.
   1. “Error” means a failure of the Software to conform to the published specifications, resulting in the inability to use, or material restriction in the use of, the Software.
   2. “Escalation” means the process by which Zitara will work continuously, and at multiple levels of its organization, to resolve an Error if not resolved within the specified Resolution Time set forth in Exhibit B Section 4, below.
   3. “Start Time” means the time at which Zitara first becomes aware of an Error during Zitara’s regular business hours, following initiation of a Support case by Customer in accordance with Exhibit B Sections 2 and 3, below.

2. General. During a Subscription Term, Zitara will provide the Support described in these Support Terms. Zitara provides Support during normal business hours (9am – 5pm, Pacific time, Monday - Friday).
3. Contacts. Customer may initiate a Support case by emailing support@zitara.com. Customer may initiate an unlimited number of Support cases.
4. Priority Levels and Timeframes. Zitara will establish the Priority Level of an Error and the corresponding Support case in its sole discretion and will use its best efforts to adhere to the Response Times and Resolution Times set forth below. If an Error is not addressed within the Resolution Time set forth below, Zitara will commence an Escalation. Response Times and Resolution Times are calculated from the Start Time.

5. Conditions, Exclusions, and Termination.
   
   1. Conditions. Zitara’s obligation to provide Software Support Services is conditioned upon the following: (i) Customer makes reasonable efforts to solve the Error after consulting with Zitara; (ii) Customer provides Zitara with sufficient information and resources to correct the Error, as well as any and all assistance reasonably requested by Zitara; (iii) Customer procures, installs, and maintains all Customer Equipment including telephone lines, communication interfaces and other hardware necessary to access and operate the Zitara Hardware and Software; and (iv) Customer’s compliance with all Customer Equipment and Deployment Location access requirements set forth in the Agreement and Documentation.  
   2. Exclusions. Zitara is not obligated to provide Software Support Services in the following situations: (i) the problem is caused by Customer’s negligence, the Customer Equipment including the Deployment Location, or other causes beyond the reasonable control of Zitara; (ii) the problem is with third party software not licensed through Zitara including such software included within the Zitara Hardware; (iii) Customer fails to pay any amount that is payable to Zitara within the timeframe for payment specified in the MSA.
   3. Termination. Zitara reserves the right to conclude its performance of a Software Support Services case when, in its reasonable discretion, Zitara determines that it has provided a satisfactory resolution or workaround to the Error.
   4. Sole Remedy. The Software Support Services are Customer’s sole and exclusive remedy for Software Errors.