ViewNexa Master Services Agreement

This Master Services Agreement (this “Agreement”) is entered into by and between Bitcentral, Inc., a California corporation (“Bitcentral”) with principal offices located at 4340 Von Karman Avenue, Suite 400, Newport Beach, California 92660, and the customer set forth on the signature page hereto (“Customer”). Bitcentral and Customer are sometimes referred to jointly as the “parties” or singularly as a “party.”  Capitalized terms but not otherwise defined in this Agreement shall have the respective meanings ascribed to them in APPENDIX I attached hereto.

1. SERVICES

1.1 Purpose. This Agreement sets forth the terms and conditions under which Bitcentral agrees to provide (i) certain hosted “software as a service” (the “Subscription Services”) for certain software applications (each such application together with any applicable documentation thereto, and programming and user interfaces therefor, a “Developed Software Platform”) to Authorized Users (as defined in Section 2.2), as further set forth on each order quote (“Order Quote”) (the current Order Quote is attached hereto at EXHIBIT A), (ii) if applicable, all physical hardware, including but not limited to media encoders, that are leased by Customer (“Leased Hardware”) related to Customer’s access to, and use of, the Subscription Services, and (iii) if applicable, other professional services (“Professional Services” together with Subscription Services, the “Services”) related to Customer’s access to, and use of, the Subscription Services, as further set forth on each statement of work (“Statement of Work”) issued hereunder (Order Quotes and Statements of Work are sometimes referred to jointly as a “Statement of Services”).
1.2 Access and Use License. During the Term, Bitcentral grants Customer a non-exclusive, non-sublicensable, non-transferable, worldwide license to access and use the Subscription Services, solely for purposes set forth herein.
1.3 Statement of Services. Each applicable Order Quote shall specify (a) the Subscription Services to be provided and each applicable Developed Software Platform, user limitations, fees, subscription term and other applicable terms and conditions, and (b) any Leased Hardware to be leased.  Each applicable Statement of Work shall specify and further describe the Professional Services to be provided and may, but need not, include, limitations, milestones, fees, term and other applicable terms and conditions.
1.4 Changes to Developed Software Platform. Bitcentral may make any changes to any Developed Software Platform that it deems necessary or useful to (a) maintain or enhance (i) the quality or delivery of Bitcentral’s products or services to its customers, (ii) the competitive strength of, or market for, Bitcentral’s products or services, (iii) such Developed Software Platform’s cost efficiency or performance, or (b) to comply with applicable law.
1.5 Service Level Agreement.  Bitcentral shall comply with the service level agreement located at
https://bitcentral.com/viewnexa-service-level-agreement/ (“SLA”), which may be modified by Bitcentral from time to time during the Term by posting the modified SLA on such website and shall be effective on the date posted (notwithstanding anything to the contrary in Section 15.2).

2. DEVELOPED SOFTWARE PLATFORM ACCESS AND AUTHORIZED USERS

2.1 Administrative Users. During the configuration and set-up process for each Developed Software Platform, Customer will identify an administrative username and password for Customer’s account. Bitcentral reserves the right to refuse registration of, or cancel usernames and passwords it deems inappropriate.
2.2 Authorized Users. Customer may allow such number of Customer’s employees and independent contractors (provided such independent contractors do not work for any company which Bitcentral reasonably determines is a competitor of Bitcentral), as is indicated on an Order Quote to use the applicable Developed Software Platform on behalf of Customer as “Authorized Users.” Authorized User accounts cannot be shared or used by more than one Authorized User, but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require use of the applicable Developed Software Platform.
2.3 Authorized User Conditions to Use. As a condition to access and use of a Developed Software Platform, (a) each Authorized User shall agree to abide by the Terms of Use which it may adopt from time to time, (b) Authorized Users shall agree to abide by the terms of this Agreement, and (c) Authorized Users shall agree not to capture or share a screenshot of any page or dashboard in the Developed Software Platform with anyone other than Bitcentral employees. Customer shall promptly notify Bitcentral of any violation of this Agreement or the Terms of Use by any Authorized User upon becoming aware of such violation, and shall be liable for any such breach.
2.4 Account Responsibility. Customer will be responsible for (a) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (b) securing its Bitcentral account, passwords (including but not limited to administrative and user passwords) and files. Bitcentral is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.

3. CUSTOMER CONTENT AND CUSTOMER DATA

3.1 General. The Developed Software Platforms will provide Customer with the opportunity to submit, upload, transmit, display or otherwise make available Customer Content. When submitting Customer Content to Bitcentral, Customer may be asked to provide information about its submission, including content source, user credentials and descriptive information.
3.2 Unauthorized Material. Customer may not submit, upload, transmit, display or otherwise make available, in any manner, any Customer Content that (a) violates this Agreement, (b) is Unauthorized Material. Bitcentral has the right, but not the obligation, to review any Customer Content and to delete, remove, move, edit or reject, without prior notice to Customer, although Bitcentral will make best efforts to notify Customer immediately following changes, any Customer Content, including, without limitation, any Unauthorized Material; provided, however, that Bitcentral shall have no obligation or liability to Customer or any third party for failure to do so or for doing so in any particular manner. In addition, content may not (w) modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Subscription Services or the rights or use or enjoyment of the Subscription Services by any other user, (x) impersonate any person or entity or falsely state or otherwise represent Customer’s affiliation with a person or entity, (y) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted on, through or in connection with the Services, or (z) solicit passwords or personal identifying information for unlawful purposes from other users or engage in spamming, flooding, harvesting of email addresses or other personal information, “spidering”, “screen scraping”, “data scraping”, “phishing”, “database scraping”, or any other activity with the purposes of obtaining lists of other users or other information.
3.3 Monitoring. Bitcentral assumes no responsibility for monitoring a Developed Software Platform for inappropriate content or conduct. If Bitcentral chooses to monitor a Developed Software Platform, Bitcentral assumes no responsibility for any Customer Content, assumes no obligation to modify or remove any Customer Content, and no responsibility for the conduct of any user. Bitcentral reserves the right to investigate and take appropriate legal action against anyone who, in Bitcentral’s sole discretion, violates, or is suspected of violating, this Section, including, without limitation, reporting Customer to law enforcement authorities. Further, Customer agrees that Bitcentral may access, preserve and disclose Customer’s account and registration information and any other content or information if required to do so by law or if based on a good faith belief that such access, preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any content or information violates the rights of any third party; (d) respond to Customer’s requests for customer or technical service; or (e) protect the rights, property or personal safety of Bitcentral, users or any third parties.
3.4 License Grant. Customer grants to Bitcentral and its third-party vendors (each, a “Vendor) a worldwide, non-exclusive, transferable, royalty-free right and license, solely for the purpose of providing the Services: (a) to reproduce, distribute, adapt, transmit, publicly display, publicly perform and digitally perform Customer Content on the Developed Software Platforms, and (b) to copy, store, record, transmit, display, view, print or otherwise use (i) non-public data provided by Customer to Bitcentral to enable the provision of access to, and use of, the Services as well as all content, data and information recorded and stored by each Developed Software Platform for Customer (“Customer Data”), and (ii) any trademarks that Customer provides Bitcentral for the purpose of including them in Customer’s user interface of a Developed Software Platform.
3.5 Anonymized Data. Bitcentral may use, reproduce and disclose Developed Software Platform-, Software- and Services-related information, data and material that is anonymized, de-identified, or otherwise rendered not reasonably associated or linked to Customer or any other identifiable individual person or entity for product improvement and other lawful purposes, all of which information, data and material will be owned by Bitcentral. Notwithstanding anything to the contrary in this Agreement, Bitcentral shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services (including, without limitation, information concerning Customer Data and data derived therefrom), and Bitcentral will be free (during and after the Term) to (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Bitcentral offerings, and (b) disclose such data solely in aggregate or other de-identified form in connection with its business. It is Customer’s sole responsibility to back-up Customer Data during the Term, and Customer acknowledges that it will not have access to Customer Data through Bitcentral or any Developed Software Platform following the expiration or termination of this Agreement.
3.6 Disclaimers. EXCEPT AS OTHERWISE PROVIDED HEREIN, CUSTOMER IS SOLELY AND ENTIRELY RESPONSIBLE FOR THE CONSEQUENCES OF ALL CUSTOMER CONTENT THAT CUSTOMER SUBMITS, UPLOADS, DISPLAYS, TRANSMITS OR OTHERWISE MAKES AVAILABLE THROUGH THE USE OF THE SUBSCRIPTION SERVICES. UNDER NO CIRCUMSTANCES SHALL BITCENTRAL BE LIABLE IN ANY WAY FOR CUSTOMER CONTENT, INCLUDING, WITHOUT LIMITATION, ERRORS OR OMISSIONS IN ANY CUSTOMER CONTENT (OR THE USE THEREOF), OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF ANY CUSTOMER CONTENT SUBMITTED, UPLOADED, DISPLAYED, TRANSMITTED OR OTHERWISE MADE AVAILABLE, INCLUDING, WITHOUT LIMITATION, THE ACCURACY, INTEGRITY, QUALITY OR CONTENT OF SAME, UNLESS DUE TO THE MODIFICATION OF CUSTOMER CONTENT BY BITCENTRAL IN A MANNER NOT PERMITTED BY THIS AGREEMENT OR APPROVED BY CUSTOMER. CUSTOMER FURTHER AGREES THAT ALL CUSTOMER CONTENT MADE BY MEANS OF OR IN CONNECTION WITH ANY PORTION OF THE SUBSCRIPTION SERVICES SHALL BE MADE PUBLICLY AVAILABLE VIA THE SUBSCRIPTION SERVICES AND THAT CUSTOMER HAS NO EXPECTATION OF PRIVACY IN ANY CUSTOMER CONTENT. FURTHER, CUSTOMER CONTENT DOES NOT REFLECT THE VIEWS OF BITCENTRAL OR ITS AFFILIATES.

4. FEES & PAYMENT

4.1 Fees. Customer will pay Bitcentral the fees described in an Order Quote or Statement of Work, as applicable, in accordance with the terms set forth therein (“Fees”).
4.2 Payment in U.S. Dollars. Unless otherwise specified in the Order Quote, all prices, fees and charges referred to in this Agreement are payable in U.S. Dollars. All such prices, fees and charges are net to Bitcentral and therefore exclusive of any and all federal, state, local and foreign sales, use, privilege, excise, personal property, goods and services taxes, value-added taxes and other similar taxes, tariffs or other governmental charges however designated, levied or based.
4.3 Payment. Invoices are due upon receipt of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
4.4 Renewal Fees. Upon the commencement of each Renewal Term, Customer will be liable to Bitcentral for payment of a Renewal Fee. Customer consents to Bitcentral charging such Renewal Fee to the credit card, or other payment method, associated with Customer’s account without need to provide further notice or receive further consent. Each “Renewal Fee” shall equal the Service Fee or Renewal Fee, as applicable, due to Bitcentral during previous Term as may be increased in Bitcentral’s sole discretion by a percentage up to the fee increase percentage specified on the applicable Order Quote; provided, that if the initial Term was greater than one year, for purposes of calculating the initial Renewal Fee, the Service Fee shall be prorated to one year. Notwithstanding the foregoing, if Customer is not liable to Bitcentral for a Service Fee under an Order Quote, no Renewal Fees shall be charged to Customer with respect to such Order Quote.
4.5 Reimbursable Expenses. In addition to the Fees, if applicable, Customer will reimburse Bitcentral for reasonable out-of-pocket travel expenses, in accordance with rates published at www.gsa.gov/perdiem, incurred by Bitcentral in connection with performing the Professional Services. Airfare and car rental fees are billed as the actual expense.
4.6 Payment Disputes. If Customer believes that Bitcentral has billed Customer incorrectly, Customer must notify Bitcentral no later than 30 days after the date on the first billing statement in which the problem appeared in order to receive an adjustment. Inquiries should be directed to Accounts Receivable at accountsreceivable@bitcentral.com or the applicable account manager.
4.7 No Deductions or Setoffs. All amounts payable to Bitcentral hereunder will be paid by Customer to Bitcentral in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason except as required by applicable law.
4.8 Subpoena Expenses. If Bitcentral has to provide information in response to a subpoena related to Customer’s account, Bitcentral may charge Customer for Bitcentral’s costs, including fees for attorneys and employee time spent retrieving records, preparing documents and participating in depositions or other legal processes, and other costs incurred.
4.9 Revenue Share. The Parties may agree to share the revenue generated through subscription video on demand (“SVOD”), transactional video on demand (“TVOD”) or if Customer elects to serve dynamic video, display or other types of advertisements in its Developed Software Platforms or through any other output, using a third-party advertising network managed by Bitcentral (“ViewNexa Monetization Program”). For SVOD and TVOD revenue, Bitcentral will invoice Customer for the share of Net Receipts as set forth in the applicable Order Quote attached hereto, within 30 days of the end of the calendar month in which such revenue was reported. For the ViewNexa Monetization Program, Bitcentral will credit the customer account for Customer’s share of Net Receipts, as set forth in the applicable Order Quote, within 90 days of the last day of the calendar month in which the revenue was generated.
4.10 Global Streaming Fees. Unless otherwise specified in an Order Quote, all rates provided for streaming fees apply to GB streamed in North America (NA) and the European Union (EU). All GB streamed outside of NA and EU will be considered Rest of World (ROW) GB. If the ROW GB usage on any Customer invoice exceeds 10% of the total GB usage on that invoice, the ROW GBs will be assessed at a rate of $0.01 higher than the rate for NA and EU streamed GB on that invoice.

5. TERM AND TERMINATION

5.1 Term. This Agreement shall remain in effect until its termination as provided below (the “Term”). Unless otherwise stated in the applicable Order Quote, the term of each Statement of Services shall begin on the date when the first Authorized User receives login credentials and gains access to the Subscription Services (the “Services Effective Date”) and continue for the “Service Term,” in each case as specified in such Statement of Services. Each Order Quote shall automatically renew for additional (a) one year periods if the Service Term is equal to or greater than one year, or (b) periods equal to the Service Term if the Service Term is less than one year (each, a “Renewal Term”), unless written notice of non-renewal is received by the other party at least 60 days prior to the expiration of the then current term.
5.2 Termination. Either party may terminate this Agreement upon written notice to the other party if no Statement of Services is in effect. In addition to any other remedies it may have, either party may also terminate this Agreement upon written notice if the other party fails to pay any amount when due or otherwise materially breaches this Agreement and fails to cure such breach within 30 days of receipt of written notice of such breach from the non-breaching party. This Agreement shall terminate automatically upon the initiation of voluntary or involuntary bankruptcy proceedings by Customer or the appointment of any receiver or a trustee for the benefit of creditors to take possession, custody or control of the property or management of Customer.
5.3 Effect of Termination. Upon termination of this Agreement, each outstanding Statement of Services, if any, shall terminate and Customer shall immediately cease all use of, and all access to, the Subscription Services and Bitcentral shall immediately cease providing the Professional Services. If Bitcentral terminates this Agreement pursuant to the second sentence of Section 5.2, all Fees that would have become payable had each outstanding Statement of Service remained in effect until expiration of its current Term will become immediately due and payable.
5.4 Suspension for Non-Payment. Bitcentral reserves the right to suspend Customer’s access or use of the Subscription Services for any account for which any payment is due but remains unpaid after 30 days written notice of such delinquency. Bitcentral shall not be liable to Customer, or to any third party, for any suspension of the Subscription Services resulting from Customer’s non-payment.
5.5 Survival. Sections 3.5, 3.6, 4.4, 4.5, 4.6, 7.6, 8.5, 9, 10, 11, 12, 13, 14, 15, 16, and Sections 3, 4 and 5 of EXHIBIT B, if applicable (and any other terms of this Agreement which are expressly or by implication to have continuing effect after such termination or expiration), shall survive any termination or expiration of this Agreement. All other rights and obligations shall be of no further force or effect.

6. LEASED HARDWARE

6.1 Application. The terms set forth in Exhibit B attached hereto only apply to Order Quotes that include Leased Hardware (e.g., encoder) as a line item in a Subscription Service.

7. ADDITIONAL RESTRICTIONS AND RESPONSIBILITIES

7.1 Software Restrictions. Customer will not, nor permit or encourage any third party to, directly or indirectly (a) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the Software; (b) modify, translate, or create derivative works based on a Developed Software Platform or the Software; (c) use a Developed Software Platform or the Software for timesharing or service bureau purposes or other computer service to a third party; (d) modify, remove or obstruct any proprietary notices or labels; (e) “frame” or “mirror” any part of the Developed Software Platform, including any content contained in the Developed Software Platform, on any other server or device; (f) copy, reproduce, distribute, republish, download, display, post or transmit any part of the Developed Software Platform or the Software in any form or by any means except as expressly stated in this Agreement; (g) use the Software or a Developed Software Platform in any manner to assist or take part in the development, marketing or sale of a product competitive with such Software or Developed Software Platform.
7.2 Customer Compliance. Customer will use, and will ensure that all Authorized Users use, the Subscription Services and Leased Hardware in compliance with this Agreement, the Terms of Use and all applicable laws and regulations.
7.3 Cooperation. Customer will (a) provide reasonable cooperation to enable Bitcentral to exercise its rights and perform its obligations under this Agreement, including providing Bitcentral with such access to Customer’s content and existing applications, vendor accounts, and its information technology infrastructure as is necessary for Bitcentral to perform the Services; (b) provide to Bitcentral all information reasonably required by Bitcentral in order to install and configure the Services and shall be solely responsible for the accuracy of all such information provided; (c) permit Bitcentral to perform remote diagnostic assistance within the Customer’s instance of a Developed Software Platform; and (d) provide adequate personnel and resources to interface with Bitcentral.
7.4 Custom Development. If Customer requests and Bitcentral agrees, Bitcentral may perform custom development in accordance with the terms set forth in a Statement of Work. Bitcentral will deliver to Customer each software build (each, a “Deliverable”) in accordance with the applicable timeline and milestones in the in the applicable Statement of Work. Payment amounts, method of payment, payment schedule and terms of payment for all work to be performed and Deliverables to be delivered, shall be set forth in the Statement of Work. Unless otherwise stated in the applicable Statement of Work, Customer will pay each such invoice upon receipt. Title and interest in and to all Deliverables, including any and all intellectual property rights attached, connected or related thereto, will vest in Bitcentral and will not be deemed “works made for hire” by Bitcentral for the benefit of Customer. Deliverables will be part of the Software and subject to the terms of this Agreement, including those related to ownership of the Software.
7.5 Customer Systems. Customer shall be responsible for obtaining and maintaining—both the functionality and security of—any equipment and ancillary services needed to connect to, access or otherwise use the Subscription Services, including modems, hardware, servers, software, operating systems, networking, internet access, web servers and the like. Customers using the Live to VOD capabilities must maintain a 6-10Mb/s IP connection from the on-premises encoder output to ViewNexa Cloud service at all times at their own expense.
7.6 Paid Subscriptions. If Customer offers a paid subscription to users of apps developed and maintained by Bitcentral, on behalf of Customer and containing Customer’s content (“End Users”), and any number of End Users have prepaid for a subscription, Customer agrees that until the last paid subscription has been fulfilled, Customer will provide and maintain Customer Content relating to such subscriptions no less frequently than the expected interval, regardless of whether this Agreement has been terminated and irrespective of the reason for termination.

8. SERVICE RESPONSIBILITIES

8.1 Continuation and Updates of the Services. Bitcentral may provide routine updates during the Service Term. All updates will be deemed part of the Services, and subject to all applicable terms and conditions in this Agreement. Any regularly scheduled updates by Bitcentral which are anticipated to cause a disruption in the Subscription Services to Customer will, to the extent reasonably practicable, not be implemented without advance notice to Customer of Bitcentral’s intent to perform such service. If Bitcentral seeks to provide any update to the Subscription Services as part of its obligations under this Agreement, Bitcentral will have the right to implement such update at its option without prior notice to Customer; provided that the update does not materially diminish the functionality of the Subscription Services to Customer on which Customer materially relies. Nothing in this Agreement shall entitle Customer to have access to any auxiliary or other module, update, or revision, or any feature not previously accessible to Customer, or new release, of or to the Subscription Services that Bitcentral elects to market, advertise, offer or exploit as a separate or stand-alone product, system, module, feature or service or for a separate or additional fee or charge. Bitcentral reserves the right to discontinue offering the Subscription Services at the conclusion of the Term.
8.2 Modification to Third-Party Software and Support Cost. If Bitcentral incurs any material increased cost from third-party software licenses or annual support fees during the Term, Bitcentral reserves the right to pass these costs onto Customer; provided that the cost increase is directly related to a product or feature of the Subscription Services on an active Order Quote. Cost increases will be communicated in writing to Customer 30 days before taking effect. No cost increases will be applied before written notice is provided.
8.3 Service Suspension. Bitcentral may suspend or restrict access to the Subscription Services, in whole or in part, if: (a) Bitcentral reasonably believes that it is necessary to protect the servers, systems, infrastructure, data, or information of Bitcentral or its third-party providers or customers, from a denial of service attack, security breach, or similar event; (b) requested by a law enforcement agency, government agency, or similar authority; (c) Customer fails to cooperate with Bitcentral to investigate suspected violations of this Agreement; or (d) any material or service provided by Bitcentral that is material to the provision of the Subscription Services become unavailable to Bitcentral for any reason, and Bitcentral cannot procure an alternative in a timely manner or on commercially reasonable terms. For the grounds stated in this Section Bitcentral is not obligated to provide advance notice but shall provide notice of such suspension as soon as practicable after suspension has occurred. Bitcentral shall reasonably tailor the scope and duration of a suspension or restriction to the applicable circumstances which gave rise to such suspension or restriction.
8.4 Transmission of Data. Customer understands that (a) the technical processing and transmission of Customer’s “Electronic Communications,” defined as any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically to or from Bitcentral, is fundamentally necessary to Customer’s use of the Subscription Services; (b) Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned or operated by Bitcentral; (c) changes to Customer’s Electronic Communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices; and (d) Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. Bitcentral is not responsible for any Electronic Communications or Customer Data which are lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by Bitcentral.
8.5 Third Party Disclaimers. THE DISTRIBUTION, ADMINISTRATION, REPORTING, ACCOUNTING, AVAILABILITY AND SALES OF THE SUBSCRIPTION SERVICES ARE CONTROLLED, HANDLED, PROCESSED AND FULFILLED BY OPERATORS AND OTHER THIRD PARTIES NOT AFFILIATED WITH BITCENTRAL (EACH, A “THIRD-PARTY PROCESSOR”). ACCORDINGLY, ALL OBLIGATIONS REGARDING SUCH DISTRIBUTION, ADMINISTRATION, REPORTING, ACCOUNTING, AVAILABILITY AND SALES FUNCTIONS MAY BE GOVERNED BY THE TERMS OF USE, TERMS OF SERVICE, PRIVACY POLICIES AND OTHER AGREEMENTS WITH THIRD-PARTY PROCESSORS. ACCORDINGLY, BITCENTRAL MAKES NO WARRANTY OR GUARANTEE, AND ACCEPTS NO RESPONSIBILITY OR LIABILITY FOR (A) ANY FAILURE OR DELAYS IN RECEIVING ANY INFORMATION OR AMOUNTS FROM ANY THIRD-PARTY PROCESSORS, (B) ANY ERRORS OR OMISSIONS IN THE PAYMENT OR REPORTING OF ANY AMOUNTS IN CONNECTION WITH THIRD-PARTY PROCESSORS, (C) THE ACCURACY, INTEGRITY, QUALITY OR CONTENT OF ANY INFORMATION OR AMOUNTS RECEIVED FROM THIRD-PARTY PROCESSORS, (D) THE CONTINUED USE OR AVAILABILITY OF THE SUBSCRIPTION SERVICES IN CONNECTION WITH ANY THIRD-PARTY PROCESSORS, OR (E) ANY OTHER LOSS, CORRUPTION, OR DAMAGE WHATSOEVER, IN EACH INSTANCE, RELATING TO OR IN CONNECTION WITH THE DISTRIBUTION, ADMINISTRATION, REPORTING, ACCOUNTING, AVAILABILITY AND SALES OF THE SUBSCRIPTION SERVICES OR ANY OTHER CONDUCT BY OR IN CONNECTION WITH A THIRD-PARTY PROCESSOR, INCLUDING, WITHOUT LIMITATION, ANY AND ALL FEES, CHARGES, COMMISSIONS OR OTHER AMOUNTS. IF A THIRD-PARTY PROCESSOR EXPERIENCES A DATA BREACH OR OTHER EVENT THAT AFFECTS ANY OF CUSTOMER’S INFORMATION OR USER CONTENT, INCLUDING, WITHOUT LIMITATION, THE INFORMATION OF THE END USERS OF THE SUBSCRIPTION SERVICES, BITCENTRAL WILL IN NO WAY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR SUCH BREACH OR OTHER EVENT.

9. CONFIDENTIALITY

9.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has been, and may be, exposed to business, technical or financial information relating to the Disclosing Party’s business (“Confidential Information”). Confidential Information of Bitcentral includes non-public information regarding features, functionality and performance of the Software. Confidential Information of Customer includes Customer Data, but explicitly excludes Vendor Information (defined below). The terms and conditions of this Agreement, including all pricing and related metrics, are Bitcentral’s Confidential Information; provided, that either party may disclose this Agreement to its advisors, consultants and agents who have a need to know such information and who are subject to binding confidentiality obligations.
9.2 Exceptions. Notwithstanding anything to the contrary contained in this Agreement, Confidential Information shall not include any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party.
9.3 Obligations Related to Customer Content. Notwithstanding anything to the contrary in this Agreement, Customer Content is not included in Confidential Information. To the extent Bitcentral has any access to Customer Content in the course of providing the Services, Bitcentral’s entire obligation to keep Customer Content confidential is stated in this Section. Bitcentral shall not, intentionally (a) access Customer Content or (b) disclose Customer Content to any third party, except to the extent: (i) Customer makes Customer Content publicly available, (ii) as necessary for Bitcentral to provide, or obtain third-party supplier support for, the Services or to provide information requested by Customer, or (iii) as specifically authorized by Customer in writing. Bitcentral’s obligation to protect Customer Content from unauthorized use, access or disclosure is to maintain and enforce the then-current standard Bitcentral security policies and standards applicable to the Services as practiced at the locations from which Bitcentral is providing the Services to Customer.
9.4 Non-use and Non-disclosure. With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (a) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (b) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, and (c) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this Agreement.
9.5 Compelled Disclosure. Notwithstanding Section 9.4, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.
9.6 Remedies for Breach of Obligation of Confidentiality. The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this Section, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.

10. PROPRIETARY RIGHTS

10.1 Ownership. Customer owns all right, title and interest in and to the Customer Data and Customer Content. Bitcentral owns and retains all right, title and interest in and to (a) the Software and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions, technical information or other technology developed in connection with the Services, and (c) trade secrets, copyrights, trademarks and all other all intellectual property and proprietary rights in and related to any of the foregoing. Customer does not acquire any rights in the Software, Services or Service Materials, express or implied, other than those expressly granted in this Agreement and all rights not expressly granted to Customer are reserved by Bitcentral and third-party vendors. This Agreement is not a sale of any Software or any copy thereof. The Software is protected by United States laws and international treaty provisions, and contains Confidential Information.
10.2 Assignment of Rights. Without intending to limit any of Bitcentral’s rights or Customer’s obligations under this Agreement, to the extent that any rights in the Software, or in any updates, revisions, modifications, enhancements or derivative works of the Software vest in Customer, Customer agrees to and hereby irrevocably grants, transfers, sells and assigns to Bitcentral (without further notice or consideration), free from all liens and other encumbrances, all of Customer’s right, title and interest in and to such updates, revisions, modifications, enhancements and derivative works of such Software, including without limitation, all rights of copyright (and all renewals, extensions, and reversions thereof), neighboring rights, trademark, patents and other proprietary rights of any kind or nature, in perpetuity and throughout the universe in all languages and in all media and forms of expression and communication now known or later developed, including the right to make adaptations and modifications.
10.3 Notification of Infringement. Customer will promptly notify Bitcentral if Customer becomes aware of any third party infringement of the Subscription Services and cooperate with Bitcentral in any legal action taken by Bitcentral against third parties to enforce its intellectual property rights. Customer will use commercially reasonable efforts to safeguard the Subscription Services from infringement, misappropriation, theft, misuse or unauthorized access. Bitcentral will promptly notify Customer if Bitcentral becomes aware of any third party infringement of Customer Content and cooperate with Customer in any legal action taken by Customer against third parties to enforce its intellectual property rights. Bitcentral will use commercially reasonable efforts to safeguard the Customer Content from infringement, misappropriation, theft, misuse or unauthorized access.
10.4 Publicity. Customer agrees that Bitcentral may identify Customer as a customer and use Customer’s logo and trademark in Bitcentral’s promotional materials. Customer may request that Bitcentral stop doing so by submitting an email to marketing@bitcentral.com. It may take Bitcentral up to 30 days to process such request.

11. WARRANTY AND DISCLAIMER

11.1 Warranties. Bitcentral represents and warrants that it will perform the Professional Services in a professional and workmanlike manner. Each party represents and warrants that it has the legal power to enter into this Agreement. Additionally, Customer warrants that (a) Customer owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all Customer Data that is placed on, transmitted via or recorded by the Subscription Services; (b) the provision and use of Customer Data as contemplated by this Agreement and the Subscription Services does not and shall not violate any Customer’s privacy policy, terms- of-use or other agreement to which Customer is a party or any law or regulation to which Customer is subject to; and (c) no Customer Data will include social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, credit report information or other personal financial information, health or medical information or other information that is subject to international, federal, state, or local laws or ordinances now or hereafter enacted regarding data protection or privacy, including, but not limited to, the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, the Fair Credit Reporting Act, the Children’s Online Privacy Protection Act and the Gramm-Leach-Bliley Act.
11.2 DISCLAIMER. BITCENTRAL WILL NOT BE LIABLE FOR ANY LOSS OF CUSTOMER DATA REGARDLESS OF WHETHER THE SUBSCRIPTION SERVICES WERE USED PROPERLY OR IMPROPERLY. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN A STATEMENT OF SERVICE, BITCENTRAL DOES NOT WARRANT THAT ACCESS TO THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES BITCENTRAL MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SUBSCRIPOTION SERVICES. FURTHER, BITCENTRAL MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SERVICES PROVIDED BY THIRD-PARTY TECHNOLOGY SERVICE PROVIDERS RELATING TO OR SUPPORTING THE SUBSCRIPTION SERVICES, INCLUDING HOSTING AND MAINTENANCE SERVICES, AND ANY CLAIM OF CUSTOMER ARISING FROM OR RELATING TO SUCH SERVICES SHALL, AS BETWEEN BITCENTRAL AND SUCH SERVICE PROVIDER, BE SOLELY AGAINST SUCH SERVICE PROVIDER. THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS,” AND BITCENTRAL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

12. INDEMNITY

12.1 Indemnification by Bitcentral. To the extent permitted under applicable law, Bitcentral will indemnify, defend and hold harmless Customer and its affiliates, successors and assigns (and their respective officers, directors, employees, agents and representatives) from and against any and all claims, demands, suits, actions, judgments, damages, costs, losses, expenses (including reasonable attorneys’ fees and expenses) and other liabilities (“Losses”) actually incurred by Customer in connection with a claim by an unrelated third party (a) alleging that the Subscription Services, or Customer’s use or access thereof in accordance with this Agreement, infringes any intellectual property rights of such third party, or (b) arising out of breach of this Agreement by Bitcentral. The foregoing obligations set forth in clause (a) do not apply with respect to portions or components of the Subscription Services (i) not supplied by Bitcentral, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery, or granting of access, by Bitcentral, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Subscription Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Subscription Services are held by a court of competent jurisdiction to be or is believed by Bitcentral to be infringing, Bitcentral may, at its option and expense (x) replace or modify the Subscription Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (y) obtain for Customer a license to continue using the Subscription Services, or (z) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Subscription Services. This Section states Customer’s sole and exclusive remedies for claims of infringement.
12.2 Indemnification by Customer. To the extent permitted under applicable law, Customer will indemnify, defend and hold harmless Bitcentral, and its affiliates, successors and assigns (and their respective officers, directors, employees, agents and representatives) from and against any and all Losses actually incurred by Bitcentral in connection with an unrelated third-party claim arising from or relating to any: (a) breach by Customer of its representations, warranties or covenants contained herein, (b) the negligent, or willful or reckless misconduct of Customer, (c) any use by Customer of the Subscription Services other than as set forth herein or an Order Quote, (d) interruptions to the Subscription Services due to technical malfunction at Customer, or (e) that Customer Data, or any use thereof, infringes the rights of, or has caused harm to, a third party.

13. LIMITATION OF LIABILITY

13.1 IN NO EVENT SHALL (A) EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY CUSTOMER HEREUNDER DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT), AND (B) EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS SHALL NOT APPLY (I) TO THE EXTENT PROHIBITED BY APPLICABLE LAW, (II) TO BREACHES OF THE CONFIDENTIALITY AND INTELLECTUAL PROPERTY OWNWERSHIP PROVISIONS OF THIS AGREEMENT, OR (III) THE INDEMNIFATION OBLIGATIONS UNDER THIS AGREEMENT. SUBJECT TO THIS SECTION, BITCENTRAL SHALL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM THE LOSS OR CORRUPTION OF ANY DATA OR CONTENT WHETHER RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES, SERVICE INTERRUPTIONS OR OTHERWISE.

14. GOVERNING LAW AND DISPUTE RESOLUTION

14.1 This Agreement is governed in all respects by the laws of the State of California, without giving effect to its rules relating to conflict of laws. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the parties under this Agreement. Any dispute arising out of or relating to this Agreement, or its subject matter, shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Either party may send a notice to the other party of its intention to file a case with the AAA under this Section (“Arbitration Notice”). The arbitration will be conducted in Newport Beach, California by a single arbitrator knowledgeable in government contracting matters and the commercial aspects of “software as a service” arrangements and intellectual property. The parties will mutually appoint an arbitrator within 30 days of the Arbitration Notice. If the parties are unable to agree on an arbitrator, then the AAA will appoint an arbitrator who meets the foregoing knowledge requirements. The arbitration hearing will commence within 60 days after the appointment of the arbitrator and the hearing will be completed and an award rendered in writing within 60 days after the commencement of the hearing. Prior to the hearing, each party will have the right to take up to 4 evidentiary depositions, and exchange two sets of document production requests and two sets, each, of not more than 10 interrogatories. The arbitrator will provide detailed written explanations to the parties to support their award and regardless of outcome, each party shall pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and 50% of the fees of the arbitrator and the AAA. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction. The prevailing party in any dispute related to this Agreement will be entitled to recover its reasonable attorneys’ fees.

15. GENERAL PROVISIONS

15.1 Integration and Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement, together with any Statement of Services entered into hereunder and all exhibits, annexes and addenda hereto and thereto is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has authority of any kind to bind the other party in any respect whatsoever. In the event of a conflict between this Agreement and any Statement of Services, such Statement of Services shall prevail unless otherwise expressly indicated in this Agreement or such Statement of Services. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “Section” or “Exhibit” are references to a section of, or exhibit to this Agreement; and (iv) derivative forms of defined terms will have correlative meanings.
15.2 Modification and Waiver. No amendment or modification to this Agreement shall be valid or binding upon the parties unless in writing and signed by a duly authorized officer of each party, unless expressly stated otherwise herein and referencing this Section. No failure or delay on the part of either party in the exercise of any right or privilege hereunder shall operate as a waiver thereof or of the exercise of any other right or privilege hereunder, nor shall any single or partial exercise of any such right or privilege preclude other or further exercise thereof or of any other right or privilege.
15.3 Force Majeure. Neither party is responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third-party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, weather conditions, pandemic, epidemic, or other widespread health emergency, or acts of hackers, internet service providers or any other third party (“Force Majeure Event”). Any delay in performance (other than for the payment of amounts due; provided, such non-payment does not exceed 30 days) caused by a Force Majeure Event is not a breach of the Agreement. If the Force Majeure Event renders the Subscription Services completely unavailable for more than 30 consecutive days, either party may terminate the Agreement upon written notice to the other party (in which case Customer will receive a refund of prepaid fees starting from the beginning of the period of unavailability due to such conditions). For the avoidance of doubt, Customer is not obligated to pay Bitcentral during the period when a Force Majeure Event renders the Subscription Services unavailable for more than 3 business days.
15.4 Notice. All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which include email and facsimile) and be addressed according to information provided on an Order Quote. All notices, consents and other communications between the parties under a Statement of Services will be sent to the recipient’s address specified thereon. All communications will be deemed to have been received on the date actually received. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this Section.
15.5 Assignment. Neither party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction. Bitcentral may sublicense any or all of its obligations hereunder. For the avoidance of doubt, a third-party technology provider that provides features or functionality in connection with a Developed Software Platform shall not be deemed a sublicensee under this Agreement.
15.6 Data Protection Addendum. Customer and Bitcentral agree to comply with the Data Protection Addendum set forth at https://www.bitcentral.com/viewnexa-data-protection/.
15.7 Export Control. The parties shall comply with all export laws and regulations of the U.S. Department of Commerce and all other U.S. agencies and authorities, including without limitation the Export Administration Regulations of the U.S. Department of Commerce Bureau of Export Administration (as contained in 15 C.F.R. Parts 730-772), and not to export, or allow the export or re-export of, any Confidential Information of the other party in violation of such laws and or regulations, or without all required licenses and authorizations. Customer shall be solely responsible for and shall assure compliance by Customer and its affiliates (and all persons and entities with which any of them does any business or has any relationship) with all laws and regulations applicable to any export or use outside of the United States of any of the Software.
15.8 European Union Provisions. If (and only if) Customer is located in, and its use of the Software is in, the European Union as constituted from time to time, copying and/or translating or decompiling of Software is permitted solely for the purposes and solely to the limited extent expressly permitted by Articles 5 and 6 of Council Directive 91/250/EC of 14th May 1991 on the legal protection of computer programs, as the same may have been or may be amended from time to time.

16. ELECTRONIC SIGNATURE AND CONTRACTS

16.1 Customer’s use of the Subscription Services includes the ability to enter into agreements and to make purchases electronically. Customer acknowledges that its electronic submissions constitute its agreement and intent to be bound by such agreements and to promptly pay for all such purchases. Customer’s agreement and intent to be bound by electronic submissions applies to all records relating to all transactions Customer enters into on the Subscription Services, including, without limitation and to the full extent allowed by law, notices of cancellation, policies, contracts, amendments and otherwise.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their respective duly authorized representatives.

Bitcentral, Inc.
4340 Von Karman Avenue
Suite 400
Newport Beach, California 92660
United States
SIGNATURE:
NAME:
TITLE:
DATE:

Customer Company:
Address 1:
Address 2:
City/St/Zip:
Country:
SIGNATURE:
NAME:
TITLE:
DATE:

APPENDIX I
DEFINITIONS

1. “Customer Content” means creative assets, including audiovisual programs, artistic renderings, drawings, film sequences, animations, sketches, characters, layouts and designs, and digital implementations therein submitted by Customer. Customer Content includes all of the information Customer submits or that Bitcentral may receive that is related to the Customer Content.
2. “Net Receipts” means any and all gross revenue collected by Bitcentral via the Developed Software Platforms as reported by Bitcentral’s reporting system, less actual out-of-pocket third-party fees paid by or on behalf of Customer or Bitcentral in connection with providing the Subscription Services hereunder, including monies paid in connection with facilitating ad serving, user transactions, and so-called “app store fees,” as applicable and any returns or discounts.
3. “Service Materials” means the written documentation and other materials relating to the operation and use of the Software including, but not limited to, user manuals, user guides, technical manuals, release notes, and online help files regarding use of the Software provided as part of the Subscription Services, and any other materials prepared in connection with any Software modification, correction, or enhancement, and shall include any updated versions of Service Materials as may be provided by Bitcentral from time to time.
4. “Software” means the source code, object code or underlying structure, ideas, know-how or algorithms relevant to a Developed Software Platform or any software, documentation or data related to a Developed Software Platform.
5. “Terms of Use” means terms of Bitcentral’s end-user terms of use adopted by Bitcentral from time to time.
6. “Unauthorized Material” means materials that is deemed to be unacceptable to Bitcentral in its sole discretion, including (i) content that is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene, vulgar or that contains explicit or graphic imagery, descriptions or accounts of excessive violence or sexual acts, contains a link to an adult website or is patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual, (ii) content that Customer does not have a right to make available under any law, rule or regulation or under contractual or fiduciary relationships, or otherwise creates a security or privacy risk for any other person or entity, (iii) content that engages in or encourages conduct that affects adversely or reflects negatively on Bitcentral, its affiliates, a Developed Software Platform, Bitcentral’s goodwill, name or reputation or causes duress, distress or discomfort to Bitcentral or anyone else, or discourages any person or entity from using all or any portion, feature or function of a Developed Software Platform, or from advertising or becoming a supplier to Bitcentral in connection with a Developed Software Platform, and (iv) any material that contains a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.

 

EXHIBIT A

VIEWNEXA CUSTOMER ORDER QUOTE(S)

Order Quote # __________
(attached hereto)

 

EXHIBIT B

LEASED HARDWARE TERMS

1. Assignment. Customer will not sell, transfer, assign, pledge, sublease or part with possession of the Leased Hardware, or file or permit a lien to be filed against the Leased Hardware.
2. Use, Maintenance and Repair. Customer will provide Bitcentral with remote access to the Leased Hardware, so Bitcentral can perform its obligations under this Agreement, including initial configuration and setup, Customer training, and ongoing maintenance and troubleshooting. Customer will use the Leased Hardware in the manner for which it was intended, as required by all applicable manuals and instructions, and keep it eligible for any manufacturer’s warranty. During the Term, Bitcentral will maintain and service the Leased Hardware, including troubleshooting any issues with the Leased Hardware and replacing the Leased Hardware if it fails, as long as the failure was not directly or indirectly caused by improper handling or use by Customer.
3. Loss or Damage. Customer is responsible for any loss of the Leased Hardware from any cause, whether or not insured, from the time the Leased Hardware is received by Customer until it is returned to Bitcentral. If any item of Leased Hardware is lost, stolen or damaged, Customer will (a) promptly notify Bitcentral of such event, and, (b) at Bitcentral’s option, either (i) repair the Leased Hardware so that it is in good condition and working order, eligible for any manufacturer’s certification, or (ii) pay Bitcentral an amount equal to the fair market value of the lost, stolen or damaged Leased Hardware. If Customer has satisfied Customer’s obligations under this Section Bitcentral will forward to Customer any insurance proceeds which Bitcentral receives for lost, damaged, or destroyed Leased Hardware. If Customer is in default, Bitcentral will apply any insurance proceeds Bitcentral receives to reduce Customer’s obligations under Section 5.3. If Customer and Bitcentral cannot agree on the fair market value of the Leased Hardware, the fair market value will be determined by appraisal at the sole expense of Customer. Appraisal shall be performed by two recognized independent appraisers, one chosen by Customer and one by Bitcentral, who shall mutually agree upon the fair market value. If the appraisers are unable to agree upon the fair market value, a third independent appraisers’ evaluation will be binding on Customer and Bitcentral.
4. Return of Hardware. If (a) a default occurs or (b) Customer does not renew Subscription Service to one or more Developed Software Platforms, Customer will immediately return the Leased Hardware to Bitcentral. The Leased Hardware must be properly packed for shipment in accordance with the manufacturer’s recommendations or specifications, freight prepaid and insured, and in average saleable condition. All returned Leased Hardware must be free of markings. Customer will pay Bitcentral for any missing or defective parts or accessories. Customer will continue to pay Services fees until the Leased Hardware is received and accepted by Bitcentral.
5. Unconditional Obligation. CUSTOMER AGREES THAT IT IS UNCONDITIONALLY OBLIGATED TO PAY ALL SERVICES FEES WITH RESPECT TO THE LEASED HARDWARE DUE UNDER THIS AGREEMENT THROUGHOUT THE TERM REGARDLESS OF WHAT HAPPENS, EVEN IF THE LEASED HARDWARE IS DAMAGED OR DESTROYED, OR IF CUSTOMER HAS TEMPORARY OR PERMANENT LOSS OF ITS USE. CUSTOMER IS NOT ENTITLED TO ANY REDUCTION OR SET-OFF AGAINST SERVICES FEES WITH RESPECT TO THE LEASED HARDWARE DUE UNDER THIS AGREEMENT FOR ANY REASON WHATSOEVER.

 

*******