EULA

Thinaer End User License Agreement

This End-User License Agreement (this “EULA”) is entered into by and between Advantix  Thinaer, LLC., with a corporate headquarters at 1202 Richardson Dr., Suite 210,  Richardson, TX, 75080 (“ATA”) and the person or entity (“Client”) referenced on Addendum  A of this EULA (“Addendum A”) or a Thinaer order form (“Order Form”), effective the date of  acceptance by ATA following submission by Client (the “Effective Date”). 

By signing Addendum A or an Order Form, you acknowledge your acceptance of the terms  and conditions of this EULA and you are representing and warranting that you can legally  enter into this EULA and satisfy all of the requirements hereunder. The parties now  therefore agree as follows:

 

BACKGROUND

ATA provides software, web based technology, mobile device technology, beacons and services for asset, employee and parts tracking along with predictive analytical software (collectively, the “Products”). Client desires to obtain and ATA desires to provide Client with access to certain of these products and services, in particular the Service, as defined in Section 2 below, pursuant to this EULA, including the right, if set forth in a Services Addendum attached hereto as Addendum.

If Client intends to offer a private labeled version of the Service or Products for use by Client’s end users, the Products and Service may be more fully described in the Services Addendum, as well as any special terms and conditions that may be applicable.

 

SERVICES

2.1 Provision of Service.

Subject to the terms and conditions of this EULA, including Addendum A and any Services  Addendum, ATA will provide Client with access to ATA’s Products as identified in  Addendum A or applicable Services Addendum to be delivered via the Internet at the  website address: API.Thinaer.io and related web properties approved by ATA (“Site”)  (collectively, the “Service”) during the Term of this EULA. Client may use the Service solely  for its intended purpose in accordance with this EULA and the terms of use agreement, if  any, located on the Site, or provided to users at the time they create their Accounts (“Terms of Use”). Client may also provide access to the Service to end users in accordance with the  applicable terms of use for each such user.

2.2 Authorized User Accounts.

Client may establish accounts (“Accounts”) for end users to use the Service (“Authorized  Users”). Authorized Users must agree to the applicable Terms of Use prior to any use of the  Service, and shall at all times abide by the terms set forth therein. Client shall immediately  notify ATA in the event that Client becomes aware of any violation of the terms of this EULA  or the Terms of Use. Client shall be liable for any breach of the Terms of Use by an  Authorized User. 

2.3 Account Protection.

Client and all Authorized Users shall reasonably protect the confidentiality of all Account  information, including user names and passwords. In the event that an Authorized User  becomes aware that the security of such party’s login information has been breached, the  party shall immediately notify Client and Client shall immediately de-activate such Account  or change the Account’s login information. Client and/or Authorized Users are solely  responsible for any use of their account and any resulting charges. To the extent ATA  obtains Account information, ATA shall reasonably protect the confidentiality of all such  Account information, including user names and passwords.

2.4 Client Assistance; Materials and Services.

Client shall provide ATA with all information, assistance and materials as reasonably  required for ATA to activate and operate the Service for Client pursuant to this EULA. Client  grants and agrees to grant to ATA a non-exclusive license to use, reproduce, display and  distribute such information and materials in connection with the provision of the Service for  Client. Client shall indemnify, defend and hold ATA harmless from and against any and all  third party claims or liabilities resulting from ATA’s use of such information and materials  pursuant to the terms of this EULA. Client is solely responsible for recruiting talent and/or  Clients and for the quality and performance of their services. Client represents and warrants  that all services provided by Client and/or the Clients and/or talent will be provided in a good  and workmanlike manner, consistent with the highest industry standards. Client shall  indemnify, defend and hold ATA harmless from and against any claims, liabilities, demands  or costs incurred by ATA as a result of any breach of the foregoing. 

2.5 Trademark License.

During the term of this EULA, ATA will have the nonexclusive, worldwide, royalty-free right  to use Client’s logos for marketing purposes. During the term of this EULA, ATA shall have  the nonexclusive, worldwide, royalty-free right to use Client’s trademarks, marks, trade  names, service marks, logos, and marketing messages (“Trademarks”) solely for the  purpose of providing the Service. ATA will comply with Client’s guidelines for the use of the  Trademarks. ATA agrees to reasonably cooperate with Client in facilitating the Client’s  monitoring of the use of the Trademarks. Nothing herein shall grant ATA any right, title or  interest in the Trademarks. At no time during the term of this EULA will ATA challenge or assist others to challenge the Trademarks or the registration thereof or attempt to register or  cause to be registered the Trademarks or any trademarks, marks or trade names  confusingly similar to those of Client. ATA understands and agrees that all use and goodwill  associated with the Trademarks will inure to the benefit of Client. Upon termination or  expiration of this EULA, ATA will cease to use the Trademarks. Client shall have the right to  immediately suspend ATA’s use of the Trademarks if such usage is improper or  inconsistent with the terms of this EULA. 

2.6 Setup and Implementation.

In the event additional services are needed for setup and implementation of the Service,  ATA shall develop and provide to Client a statement of work (the “SOW”) describing the  necessary services, including any applicable schedules, Client obligations, and payments,  for Client’s review and approval. ATA shall have no obligation to provide any such services  to Client, and Client shall have no payment obligations, unless and until a SOW has been  duly executed by authorized representatives of each party. In the event of any conflict  between the terms and conditions of a SOW and the terms and conditions of this EULA, the  terms and conditions of the SOW shall govern with respect to the services provided  thereunder. The parties may, by mutual agreement, make changes (“Changes”) to the  scope, schedule, fees or other substantive aspects of the services agreed to in any SOW.  The party requesting a Change shall prepare a written “Change Order,” specifying in  adequate detail the requested Change(s), and shall submit it to the other party for review  and, if accepted, approval thereof. In no event shall any Change be effective or acted upon  in any way or implemented until a Change Order defining such Change has been approved  in writing by the duly authorized representatives of both parties. 

2.7 Technical Contact.

Client shall designate one technical contact as the responsible party for communication with  ATA during provision of the Service. Client may change such contact upon written notice to  ATA. 

2.8 Infrastructure.

ATA may host the Service using its own infrastructure or it may engage a third party to host  the Service on its behalf. In either case, ATA will use commercially reasonable efforts to  make the Service reasonably available for use by Client through the use of redundant  systems, power backups, redundant Internet connections, etc. Data will be backed up on at  least a daily basis. 

2.9 Support and Maintenance.

ATA will provide Client with a reasonable amount of maintenance and support for the  Service during the Term. Updates to the Service will be provided in ATA’s discretion at no  charge to Client. Scheduled system maintenance shall take place during a normal  maintenance window, as reasonably determined by ATA. During such time, the Service  may be unavailable. Emergency maintenance may be required at other times in the event of system failure. ATA will use commercially reasonable efforts to promptly remedy any  system failure and restore the Service.

2.10 Restrictions.

Except as expressly permitted in this EULA or otherwise by agreement of the parties, Client  and any Authorized Users may not, and may not permit any third party to, (i) copy,  reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer,  disassemble or otherwise attempt to derive source code from the Service; (ii) use, evaluate or view the Service for the purpose of designing, modifying, or otherwise creating any  environment, program, or infrastructure or any portion thereof, which performs functions  similar to the functions performed by the Service; (iii) use the Service in violation of the  Terms of Use; (iv) use the service to violate and law or regulation, or (v) use the Service in  a service bureau or any other manner to provide services for a third party. Neither Client nor  an Authorized User shall remove, obscure, or alter any copyright notice, trademarks, logos  and trade names, or other proprietary rights notices affixed to, or contained wiThin the  Service. Except for the express rights granted herein, ATA does not grant any other  licenses, whether express or implied, to any ATA software, services, or intellectual property. 

FEES AND PAYMENT

3.1 Fees.

Client and its Authorized Users shall pay ATA Service fees and Fees to purchase beacons.  Client and shall pay ATA subscription or transaction based fees for use of the Service in  accordance with the fees and charges presented by ATA within net 30 days 

3.2 Taxes.

All fees payable hereunder are exclusive of applicable sales, excise, use or similar taxes.  Client shall pay all such taxes either directly or to ATA, as required by applicable law or  regulation. 

3.3 Payment Dispute.

In the event that Client believes any Quarterly Report for transaction or usage fees contains  an error, miscalculation, missing revenues, or other such mistake, Client shall inform ATA,  in writing, of the perceived error within thirty (30) days of receipt of the Quarterly Report.  ATA shall have thirty (30) days to respond, in writing, either agreeing with the error and  providing a corrected Quarterly Report, or stating the basis for which ATA believes there is  no error. If Client fails to notify ATA within thirty (30) days of the perceived error, Client  waives its right to subsequently complain of any such errors, other than for errors based  upon ATA’s actual fraud. 

PROPRIETARY RIGHTS

4.1 Service Ownership.

ATA and its licensors shall own all right, title, and interest in and to Service and all software  and technology used to provide the Service, including all modifications, improvements,  upgrades, derivative works, and feedback related thereto and all intellectual property rights  therein. Client agrees to assign all right, title, and interest it may have in the foregoing to  ATA. 

4.2 Data Ownership.

Client shall own all right, title, and interest in and to any data that is collected by ATA from  Client in connection with Client’s use of the Service (“Data”). Client grants and agrees to  grant to ATA a perpetual, non-exclusive no fee license to use such Data (a) in order to  provide the Service to Client, including without limitation providing promotions, offers,  information and services to Authorized Users; (b) for statistical and commercialization use  (provided that such data is not personally identifiable); and (c) as necessary to monitor and  improve the Service. Upon request by Client, ATA will provide Client with an electronic copy  of all Data under ATA’s control, provided that ATA may charge a reasonable fee for such  additional service. 

4.3 Confidentiality.

Client acknowledges that the Service, the terms of this EULA, and any other proprietary or  confidential information provided to Client by ATA (“ATA Confidential Information”)  constitutes valuable proprietary information and trade secrets of ATA. ATA acknowledges  that the Data provided to ATA by Client (“Client Confidential Information”) constitutes  valuable proprietary information and trade secrets of Client. Each party agrees to preserve  the confidential nature of the other party’s Confidential Information by retaining and using  the Confidential Information in trust and confidence, solely for its internal use, and by using  the same degree of protection that such party uses to protect similar proprietary and  confidential information, but in no event less than reasonable care. Each party shall have  the right to obtain an injunction (without having to post a bond) to prevent any breach or  continued breach of this section. Each receiving party agrees to promptly report any  breaches of this section to the disclosing party. 

LIMITATIONS OF LIABILITY

5.1 Warranty Disclaimer.

ATA DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS  (EXPRESS OR IMPLIED, ORAL, OR WRITTEN) WITH RESPECT TO THE SERVICE OR  ANY SUPPORT RELATED THERETO, INCLUDING ANY AND ALL WARRANTIES OF  MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT,  NON-INTERFERENCE, ACCURACY OF DATA, AND WARRANTIES ARISING FROM A  COURSE OF DEALING. THE FORGOING DISCLAIMER APPLIES EQUALLY TO ANY  TECHNOLOGY, MATERIALS OR SERVICES PROVIDED BY A THIRD PARTY,  WHETHER DIRECTLY OR AS A SUPPLIER TO ATA. CLIENT UNDERSTANDS THAT  NEITHER ATA NOR ITS LICENSORS SHALL BE LIABLE FOR ANY DAMAGES  RESULTING FROM OR IN CONNECTION WITH THE USE OF THE SERVICE.

5.2 Limitations of Liability.

EXCEPT FOR LIABILITY ARISING FROM SECTION 4.3 (CONFIDENTIALITY) OR 5.4  (CLIENT INDEMNITY), (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY  FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL  DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS  INTERRUPTION, OR LOSS OF INFORMATION, REGARDLESS OF WHETHER SUCH  PARTY WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING; AND (B)  IN NO EVENT SHALL THE TOTAL COLLECTIVE LIABILITY OF ATA FOR ALL CLAIMS  UNDER OR IN ANY WAY RELATED TO THIS EULA EXCEED THE REVENUE SHARE  PAID OR OWED TO CLIENT UNDER THIS EULA. 

5.3 Allocation of Risk.

The warranty disclaimer and limitations of liability set forth in this EULA shall apply  irrespective of any failure of essential purpose of any limited remedy. Client and ATA each  acknowledge and agree that the limitation of liability provisions of this EULA reflect an  informed, voluntary allocation between them of the risk associated with Client’s use of the  Service and, but for these provisions, ATA would not have made the Service available to  Client at the prices and terms contemplated under this EULA. 

5.4 Client Indemnity.

Client shall indemnify, defend, and hold harmless ATA and its directors, employees, agents,  and distributors from and against all damages and liabilities (including reasonable attorneys’  fees) that arise from a third party’s claim resulting from (a) use of the Service by Client or  any Authorized User, (b) use of the Service by Client or any Authorized User in violation of  the Terms of Use or this EULA; (c) any content uploaded or posted by Client or an  Authorized User; or (d) any activities of Client or an Authorized User through the use the  Site, including without limitation any property damage or personal injury. 

5.5 ATA Indemnity.

ATA shall indemnify, defend, and hold harmless Client and its directors, employees, agents,  and distributors from and against all damages and liabilities (including reasonable attorneys’  fees) that arise from a third party’s claim resulting from ATA’s provision of the Service in  violation of any third party’s intellectual property rights. 

TERM

6.1 Term.

This EULA will commence on the Effective Date of the Client’s first registered user and will  continue for a period of one (1) year (the “Term”). After the initial term, the EULA will be  automatically renewed on as annual basis unless one party notifies the other party in writing  at least sixty (60) days prior to the end of the then current Term of its desire not to renew.

6.2 Termination.

In the event that either party is in material breach of this EULA, and the non-breaching party  does not cure such breach within ten (10) days following notice of such breach, then the  non-breaching party may immediately terminate this EULA by sending written notice to the  breaching party. In addition, ATA may terminate this EULA for any reason upon thirty (30)  days prior notice to Client. 

6.3 Effect of Termination.

Upon termination of this EULA, Client and any Authorized Users must immediately stop  using the Service, return or destroy all documentation, and certify such return or destruction  in writing. Upon termination or expiration of this EULA, all terms and conditions which by  their terms or their nature should survive, including, without limitation, Sections 2.4, 2.10, 4,  5, and 7, shall survive and remain in full force and effect. 

GENERAL

7.1 Publicity.

Client agrees that ATA may include the name, logo, and success stories of Client or  Authorized Users on ATA’s website, press releases, promotional and sales literature, and  advertising materials. 

7.2 Independent Contractor.

In performing under this EULA, each party is acting as independent contractor, and in no  way are the parties to be construed as partners, joint venturers, or agents of one another in  any respect. 

7.3 Force Majeure.

Neither party shall be in default for failing to perform any obligation hereunder, other than  the payment of monies, if such failure is caused solely by supervening conditions beyond  the parties’ respective control, including without limitation acts of God, civil commotion,  strikes, terrorism, failure of third party networking equipment, failure of the public Internet,  power outages, labor disputes or governmental demands or restrictions. 

7.4 Assignment.

ATA may assign this EULA in connection with a merger, joint venture, acquisition or sale of  all or substantially all of its assets related hereto without the consent of Client. Client may  not assign this EULA in connection with a merger, joint venture, acquisition or sale of all or  substantially all of its assets related hereto without the prior written consent of ATA. Except  as expressly stated in this section, neither party may assign its rights or obligations under  this EULA without obtaining the other party’s prior written consent. Any assignment in  contravention of this subsection shall be void.

7.5 Governing Law and Venue.

This EULA shall be governed by the laws of the State of Texas, U.S.A. (excluding any rule  or principle that would refer to and apply the substantive law of another state or jurisdiction).  Further, the parties agree that any claim or cause of action under or relating to this EULA  shall be brought in the state or federal courts located in Dallas, Texas, United States and  the parties agree to submit to the exclusive personal jurisdiction of such courts. 

7.6 Miscellaneous.

This EULA, including the exhibits attached hereto, constitutes the entire agreement  between the parties regarding the subject matter stated herein, and supersedes all previous  communications, representations, understandings, and agreements, either oral, electronic,  or written. Any amendments to this EULA shall only be valid if in writing and signed by an  executive of both parties. Headings herein are for convenience of reference only and shall  in no way affect interpretation of this EULA. Nothing contained in any purchase order or  other document shall in any way modify this EULA or add any additional terms or  conditions. If any provision of this EULA, or the application thereof, shall for any reason and  to any extent be determined by a court of competent jurisdiction to be invalid or  unenforceable under applicable law, a valid provision that most closely matches the intent  of the original shall be substituted and the remaining provisions of this EULA shall be  interpreted so as best to reasonably effect its original intent. This EULA is in the English  language only, and the English language version shall control in all respects. In the event  that this EULA is translated into another language, such translation shall not be binding  upon the parties. No delay or omission by a party to exercise any right or power occurring  upon any breach or default by the other party with respect to any of the terms of this EULA  shall impair any such right or power or be construed to be a waiver thereof. This EULA may  be executed in two counterparts and facsimile signatures shall be binding. 

7.7 Decompilation.

In performing under this EULA client agrees not to reverse engineer or decompile, decrypt,  disassemble or otherwise reduce the ATA software to human-readable. Further any  decompilation or reverse engineering of hardware provided by ATA shall constitute a  breach of this EULA. 

7.8 Duplication, Development & Release.

Performing under this EULA Client agrees not to duplicate, develop, create or release same  type of solution including ATA software or hardware components without express consent  by ATA for the period specified within the terms set forth by Section 6 of this EULA.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day  and year listed below.