Last Modified: January 13, 2021

1. Applicability. These terms and conditions for services (these “Terms”) are the only terms that govern the provision of services by TruePoint Laser Scanning, LLC (“Company”) to the customer (“Customer”) identified in the accompanying sales quotation (the “Quote”). The Quote and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Quote, these Terms shall govern. These Terms prevail over any of Customer’s general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.

2. Services. Company shall provide the services to Customer as described in the Quote (the “Services”) in accordance with the terms and conditions of this Agreement. Company shall use reasonable efforts to meet any performance dates specified in the Quote, and any such dates shall be estimates only.

3. Customer’s Obligations. Customer shall:

(a) cooperate with Company in all matters relating to the Services;

(b) respond promptly to any Company request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Company to perform the Services;

(c) provide such customer materials or information as Company may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects;

(d) ensure that working conditions on Customer’s premises or any other location where the Services are to be performed are safe; and

(e) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

4. Customer’s Acts or Omissions. If Company’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Company shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

5. Fees and Expenses; Payment Terms; Interest on Late Payments; Taxes. In consideration of the provision of the Services by Company and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Quote. Customer agrees to reimburse Company for all reasonable travel and out-of-pocket expenses incurred by Company in connection with the performance of the Services. Customer shall pay all invoiced amounts due to Company on receipt of Company’s invoice. In the event payments are not received by Company after becoming due, Company may: (a) charge interest on any such unpaid amounts at a rate of 2% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and (b) suspend performance for all Services until payment has been made in full. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.

6. Intellectual Property; Use of Information. All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Company in the course of performing the Services (collectively, the “Deliverables”) shall be owned by Company. Company hereby grants Customer a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services. Company may use any Deliverable or other information it obtains in the performance of the Services for any business purpose, including, but not limited to, developing, providing, operating, maintaining, and improving Company’s products and services.

7. Confidential Information.

(a) All non-public, confidential, or proprietary information of Company, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Company to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of Company. Confidential Information does not include information that is: (i) in the public domain; (ii) known to Customer at the time of disclosure; or (iii) rightfully obtained by Customer on a non-confidential basis from a third party.

(b) Customer agrees to use the Confidential Information only to make use of the Services and Deliverables.

(c) Company shall be entitled to injunctive relief for any violation of this Section.

8. Limited Warranty; Disclaimer of Warranties.

(a) Company represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.

(b) Company shall not be liable for a breach of the warranty set forth in Section 7(a) unless: (i) Customer gives written notice of the defective Services, reasonably described, to Company within three days of the time when Customer discovers or ought to have discovered that the Services were defective; (ii) such breach occurred within 90 days of Company’s performances of the Services to which the breach relates; and (iii) Customer allows Company, at Company’s option and during regular business hours, to inspect Customer’s premises or any other location where the Services to which the breach relates were performed for the purpose of investigating such breach.

(c) Subject to Section 7(b), Company shall, in its sole discretion, either: (i) repair or re-perform such Services (or the defective part); or (ii) credit or refund the price of such Services at the pro rata contract rate.

(d) THE REMEDIES SET FORTH IN SECTION 7(c) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 7(a).

(e) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 7(A), COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

9. Limitation of Liability.

(a) IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO COMPANY PURSUANT TO THE APPLICABLE QUOTE IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10. Termination. In addition to any remedies that may be provided under this Agreement, Company may terminate this Agreement with immediate effect upon written notice to Customer, if Customer:

(a) fails to pay any amount when due under this Agreement;

(b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or

(c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

11. General Indemnification. Customer shall defend, indemnify, and hold harmless Company, its subsidiaries, affiliates, successors, or assigns and its respective directors, officers, members, managers, and employees (collectively, “Company Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder (collectively, “Losses”) arising out of or related to Customer’s negligence, willful misconduct, or breach of this Agreement. Customer shall not enter into any settlement without Company’s or Company Indemnitee’s prior written consent.

12. Intellectual Property Indemnification. Customer shall, at its expense, defend, indemnify, and hold harmless Company and any Company Indemnitee against any and all Losses arising out of or related to any claim that any of the Services or Deliverables or Company’s or any Company Indemnitee’s receipt or use thereof infringes or misappropriates any Intellectual Property Right of a third party. In no event shall Customer enter into any settlement without Company’s or Company Indemnitee’s prior written consent.

13. Statute of Limitations. Customer must notify Company of any claim arising directly or indirectly under this Agreement no later than three days after discovery of the existence of such claim, but in any event no later than 90 days after the Services are performed, or Customer waives the right to file any claim, lawsuit, or other action, including any right to any offset of payment for the Services, arising directly or indirectly under this Agreement, including any claim, lawsuit, or other action under any applicable statute of limitations.

14. Waiver. No waiver by Company of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Company. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof.

15. Force Majeure. Company shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Company, including, without limitation, acts of God, flood, fire, earthquake, epidemic, pandemic, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

16. Miscellaneous. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Company. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio in each case located in the City of Toledo and County of Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. If any term or provision of this Agreement is invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. This Agreement may only be amended or modified in a writing that specifically states that it amends this Agreement and is signed by an authorized representative of each party. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement, including, but not limited to, the following provisions: Confidentiality and Miscellaneous.