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HCSS Services Agreement

Unless an Order Form specifically states otherwise, this HCSS Services Agreement, including any and all Exhibits attached hereto, (this “Agreement”) is entered into by and between Heavy Construction Systems Specialists, LLC (“HCSS”) and the legal entity identified on the Order Form that references this Agreement (“Customer”). The “Effective Date” of this Agreement is the date which is the earlier of (i) the date the first Order Form referencing this Agreement is executed or (ii) the date of Customer’s initial access to or use of the HCSS Offerings (as defined below). By executing an Order Form that references this Agreement or by accessing or using the HCSS Offerings, Customer agrees to be bound by the terms of this Agreement. HCSS and Customer may be referred to each individually as “Party” or collectively as the “Parties”.

  1. Application of Agreement
    This Agreement applies to Customer’s use of the services and products provided by HCSS (the “HCSS Offerings”) under an applicable Order Form made pursuant to the terms of this Agreement. An “Order Form” is any purchasing or licensing document entered into by Customer and HCSS, including, but not limited to, an order form, statement of work, proposal, quote, or purchase order, for HCSS Offerings that is subject to the terms of this Agreement.
  2. Affiliates
    Customer’s Affiliates may also purchase or license HCSS Offerings under the same terms and conditions of this Agreement. Each Affiliate shall enter into a separate Order Form and clearly indicate that the Order Form is governed by this Agreement. “Affiliates” means any entity that owns or controls, is owned or controlled by, or is under common ownership or control with a Party. “Ownership” means at least fifty-one percent (51%) of the equity of the applicable entity. “Control” means the right to exercise the voting rights associated with at least fifty-one percent (51%) of the voting equity of the applicable entity. Each Party shall remain fully liable for all Order Forms executed pursuant to this Agreement. Affiliate will remain fully liable for each Order Form it enters into with HCSS. If an Affiliate enters into its own Order Form, then Party, Parties, and Customer will also include the Affiliate as to the HCSS Offerings provided to such Affiliate.
  3. Term
    This Agreement will commence on the Effective Date and continue in effect until the termination or expiration of the last Order Form (the “Agreement Term”), unless terminated earlier in accordance with this Agreement. If a term for an Order Form is not specified, then the term for such Order Form will be for twelve (12) months from the date of the last signature of the Order Form (the “Order Form Initial Term”) and will automatically renew in successive twelve (12) month periods (each, an “Order Form Renewal Term”), unless either Party gives the other Party written notice of nonrenewal at least thirty (30) days before the end of the relevant term. Any new HCSS Offering subsequently added to an existing Order Form will be coterminous with the current term of that Order Form. The Agreement Term, the Order Form Initial Term, and the Order Form Renewal Terms (if any) are collectively referred to as the “Term”.
  4. Termination
    Either Party may terminate this Agreement or any Order Form immediately upon written notice to the other Party if the other Party: (i) commits a material breach of this Agreement or an Order Form and such breach is capable of being cured but remains uncured after thirty (30) days of the non-breaching Party’s notification to the breaching Party of such breach; (ii) commits a material breach of this Agreement or an Order Form and such breach is incapable of being cured; (iii) becomes subject to any involuntary receivership, insolvency, bankruptcy, moratorium, or similar proceeding; or (iv) assigns, or attempts to assign, this Agreement or any Order Form in breach of the Assignment section of this Agreement. HCSS may terminate this Agreement or any Order Form immediately upon written notice if Customer has: (a) failed to timely pay any fees due under this Agreement or any Order Form on the due date for such payment; or (b) breached the terms of any license as specified in the License Grant section and the Conditions of Use section of this Agreement or in any Order Form.
  5. Effect of Termination
    Termination of the Agreement will terminate all Order Forms hereunder. Termination of an Order Form will not automatically terminate this Agreement. Upon termination or expiration of this Agreement or any Order Form: (i) all outstanding fees and payment obligations of Customer will be due and payable immediately (including any fees not invoiced by HCSS for HCSS Offerings under the terminated Order Form); (ii) Customer shall immediately cease all access and use of the HCSS Offerings; (iii) each Party must return or destroy all Confidential Information of the other Party in its possession or control; and (iv) in the case of destruction of Confidential Information, each Party shall provide written certification to the other Party of such destruction within a reasonable time following the expiration or termination of this Agreement. If HCSS terminates this Agreement or an Order Form because Customer commits a material breach, HCSS will be entitled to all the fees under any applicable Order Form as if Customer has finished the term of such Order Form. If Customer terminates this Agreement or an Order Form because HCSS commits a material breach, HCSS will refund any unused and prepaid fees calculated pro rata.
  6. Fees, Taxes, and Payment
    1. In consideration of HCSS’s provision of the HCSS Offerings, Customer shall pay the fees set out in each applicable Order Form pursuant to the terms of this Agreement.
    2. Unless otherwise specified in the Order Form, Customer shall pay each invoice submitted to it by HCSS in full within thirty (30) days of the date HCSS sends Customer an invoice. Fees not paid within thirty (30) days will accrue interest at the highest rate allowed by applicable law. In the event Customer fails to make timely payments, HCSS, in its sole discretion, may suspend Customer’s access to the HCSS Offerings and accelerate the payment terms to require the amount of all remaining fees be due immediately.
    3. Customer may not withhold payment of any invoice or other amount due to HCSS by reason of any right of set-off or counterclaim which Customer may have, or allege to have, or for any reason whatsoever.
    4. Where Customer utilizes a third-party to manage its vendors or suppliers, including, but not limited to, payment processing providers, Customer shall pay the cost for HCSS’s subscription fee to such third-party.
    5. All purchased or licensed HCSS Offerings come with a one hundred eighty (180) day money back guarantee (the “MBG”), subject to the following terms and conditions: (i) if Customer is reasonably dissatisfied with a certain HCSS Offering, then Customer may exercise its right to the MBG for such HCSS Offering by requesting a refund from HCSS for such HCSS Offering and supplying HCSS with a reason for such request; (ii) the MBG only applies to new HCSS Offerings that are purchased or licensed by Customer for the first time; (iii) the MBG does not apply to any HCSS Offerings that Customer had purchased or licensed in the past and does not apply to any upsells or increased quantities of HCSS Offerings currently purchased or licensed by Customer; (iv) the MBG can only be exercised by Customer within the first one hundred eighty (180) days following the effective date of the Order Form for the HCSS Offering that Customer is requesting the MBG; (v) the MBG only applies to the subscription or licensing fees for the HCSS Offerings; (vi) Customer will not receive any refunds for fees paid for training, implementation, hosting, hardware, or any other services provided by HCSS; (vii) in order to receive the MBG for a certain HCSS Offering, Customer must have completed the implementation process for such HCSS Offering prior to exercising its right to the MBG for such HCSS Offering; (viii) Customer must fully comply with this Agreement and each Order Form to receive the MBG; and (ix) HCSS reserves the right in its sole discretion to make changes or discontinue the MBG or to restrict its availability to Customer, at any time, for any or no reason, and without any required notice to Customer.
    6. The fees set forth in each Order Form are exclusive of any taxes. Customer shall pay all taxes of any type, nature, or description associated with its purchases under an Order Form (including, but not limited to, sale, use, gross receipts, excise, import, export, income, and employment taxes); provided, however, Customer shall not pay for any income taxes imposed upon HCSS by any taxing jurisdiction, arising by virtue of the performance of this Agreement.
  7. Proprietary Rights
    As between the Parties, HCSS is and will remain the sole and exclusive owner of all right, title, and interest, including all intellectual property rights, in and to the HCSS Offerings, including, but not limited to, all information and data in and to the HCSS Offerings, moral rights, rights of publicity, any modifications, updates, improvements, upgrades, derivative works, HCSS’s Confidential Information, and Feedback related thereto. If Customer provides suggestions, comments, ideas, recommendations, or requests for enhancements, additional features, or functionality, or other feedback to HCSS (collectively “Feedback”), Customer hereby assigns all right, title, and interest, including intellectual property rights, in and to the Feedback to HCSS. Customer’s Confidential Information used in the HCSS Offerings shall remain Customer’s property, and HCSS shall have no ownership rights in Customer’s Confidential Information. Customer will allow HCSS to reference and include Customer in any advertising or promotional material, including, but not limited to: (i) using Customer’s logo and name in advertising or promotional materials; (ii) working with HCSS on creating a case study for Customer’s use of the HCSS Offerings; and (iii) naming Customer in a press release; provided, such press release will be subject to Customer’s final approval.
  8. License Grant
    Except as expressly set forth in an Order Form and subject to Customer’s continued compliance with the terms of this Agreement and each Order Form, HCSS grants Customer a limited, non-exclusive, non-sublicensable, non-transferable license to use the HCSS Offerings for Customer’s internal business purposes during the Term of the applicable Order Form. Customer agrees to only use the HCSS Offerings in accordance with this Agreement and any applicable Order Form. All rights not expressly granted hereunder are reserved to HCSS. Any use of the HCSS Offerings not expressly authorized in this Agreement or any Order Form is strictly prohibited. Customer grants HCSS a worldwide, non-exclusive, fully paid-up, royalty-free license to use Customer’s Confidential Information, including any personal data as defined by applicable law, as required to give effect to and perform the services and activities contemplated by this Agreement and each applicable Order Form and as reasonably necessary for HCSS to continue to supply, maintain, and improve the HCSS Offerings. HCSS will provide Customer with customer support for the HCSS Offerings pursuant to the terms of HCSS’s Customer Support Policy found at https://help.hcss.com/s/terms.
  9. Conditions of Use
    1. Except as expressly set forth in an Order Form, Customer shall: (i) strictly comply with this Agreement, all applicable laws, and industry standards; (ii) obtain and maintain all necessary permissions, licenses, and valid consents required to lawfully transfer data to HCSS and to enable such data to be lawfully collected, processed, and shared by HCSS for the purposes of providing the HCSS Offerings or as otherwise directed by Customer; (iii) be responsible for the accuracy, quality, and legality of any data and information provided to HCSS or used in or with the HCSS Offerings; (iv) keep its passwords and any API tokens secure and confidential and use industry-standard password management practices; (v) limit its users to the number set forth in the applicable Order Form; (vi) prevent unauthorized usage or copying of the HCSS Offerings; and (vii) protect the integrity of the HCSS Offerings and control access to the HCSS Offerings.
    2. Except as expressly set forth in an Order Form, Customer shall not: (i) resell or redistribute the HCSS Offerings on a stand-alone basis or otherwise use the HCSS Offerings in any service or product not specifically authorized in this Agreement or an Order Form; (ii) disassemble, decompile, reverse engineer, modify, or otherwise alter the HCSS Offerings or any part thereof; (iii) access any of the HCSS Offerings not intended for Customer’s own use; (iv) log on to a server or an account that Customer is not authorized to access; (v) probe, scan, or test the vulnerability of a system or network; (vi) attempt to breach security or authentication measures without proper authorization; (vii) interfere with services to any user, host, or network, including, but not limited to, submitting a virus to any HCSS website, overloading, flooding, spamming, mailbombing, or crashing; (viii) use or attempt to use any engine, software, tool, agent, or other device or mechanism to navigate or search an HCSS website other than the search engine and search agents available from HCSS on one of HCSS’s websites or any generally available third-party web browsers; (ix) use the HCSS Offerings to store or transmit data that violate or infringe a third party’s privacy right or intellectual property right; (x) name or refer to HCSS or Customer’s use of the HCSS Offerings in any of Customer’s advertisements or promotional or marketing materials unless agreed to in writing by HCSS; or (xi) access all or any part of the HCSS Offerings in order to build a product or service that competes with the HCSS Offerings. All licenses granted to Customer pursuant to this Agreement or any applicable Order Form are expressly conditioned upon Customer’s compliance with this Agreement and each Order Form.
    3. Customer is responsible for maintaining the confidentiality of any password(s) or security routines it is given to access and use the HCSS Offerings and for all activities that occur under the Customer’s password(s) or security routines. Customer agrees to notify HCSS immediately of any accidental or unauthorized access to or use of the HCSS Offerings, whether suspected or confirmed. In the event of a suspected or confirmed security incident impacting Customer’s use of the HCSS Offerings or other exigent circumstances, HCSS reserves the right to immediately withdraw or suspend access to the HCSS Offerings and to alter Customer’s password(s). If Customer utilizes, and HCSS consents to the use of, the services of a third-party processor or data storage provider to process or store any HCSS Offerings, Customer shall ensure that (i) such third-party processor or data storage provider adheres to the prevailing industry standards with respect to data privacy and data security; (ii) usage of the HCSS Offerings by a third-party processor or data storage provider is limited to storing the HCSS Offerings on behalf of Customer; (iii) the HCSS Offerings are not stored internationally; and (iv) Customer is fully liable for any use, access, storage, or processing by any third-party processor or data storage provider.
    4. In the event the license granted to Customer by HCSS for the HCSS Offerings includes the HCSS Telematics, HCSS Trucking, or HCSS Dashcams products, Customer may have access to a wireless service and global positioning system cellular and satellite devices or iBeacon and load bot devices or dash cameras and associated accessories (collectively, the “Devices”). Such wireless service may only be used with the Devices provided by HCSS. Customer may only use such wireless service in accordance with the rules and parameters set forth by HCSS’s wireless service provider. The Devices may only be used by Customer for the HCSS Offerings. Customer is responsible and liable for any fees incurred by Customer for use of the wireless service outside the aforementioned parameters. HCSS may periodically program the Devices remotely with system settings and other features that cannot be changed manually. Customer acknowledges and understands that the wireless service may not be available at all times and in all places. HCSS is not responsible for interruptions in wireless service that are outside of the reasonable control of HCSS. HCSS collects information from the Devices and may use that information, as well as other usage and performance information from the Devices, to provide Customer with wireless voice and data services and to maintain and improve the network and the quality of the wireless experience. HCSS may also use this information to create aggregate data from which personally identifiable information has been removed or obscured. Such aggregate data may be used for scientific and marketing research and services such as vehicle traffic volume monitoring. Customer is responsible for notifying its employees, agents, and users of the Devices that HCSS may collect and use such information from Devices. Depending on the specific HCSS Telematics, HCSS Trucking, or HCSS Dashcams plan purchased by Customer, any Device eligible for upgrades will be as set forth in an Order Form. Device upgrades will be fulfilled solely at the discretion of HCSS. Customer may not use the firmware on the Devices for anything other than to access and use the HCSS Offerings. Customer may not use the wireless service in any manner that: (i) violates applicable law; (ii) hinders other customers' access to the wireless service; (iii) compromises network security or capacity; (iv) excessively or disproportionately contributes to network congestion, (v) adversely impacts network service levels or legitimate data flows; (vi) degrades network performance; (vii) causes harm to the network or other customers; or (viii) tethers a wireless device to a computing device (e.g., a computer, smartphone, eBook or eReader, media player, laptop, or other devices with similar functions) through use of connection kits, applications, devices, or accessories.
    5. In the event the license granted to Customer by HCSS for the HCSS Offerings includes the HCSS LMS product, Customer must: (i) provide materially true, accurate, current, and complete information as prompted by the registration form for HCSS LMS; (ii) maintain and promptly update the registration data in HCSS LMS to ensure the information is true, accurate, current, and complete; and (iii) diligently endeavor to exit from Customer’s account with HCSS LMS at the end of each work session. Certain portions of HCSS LMS, including online courses and educational products, may be provided, or owned by third parties (“Third-Party Content”). HCSS is not a publisher of Third-Party Content accessed through HCSS LMS and is not responsible for the content, accuracy, timeliness, or delivery of any opinions, advice, statements, messages, services, graphics, data, or any other information provided as Third-Party Content. Customer is solely responsible for entering into and complying with any terms and conditions governing such Third-Party Content. HCSS does not develop and does not control any materials, services, or products (including software) that Customer uploads into HCSS LMS or accesses, downloads, receives, or purchases as Third-Party Content while using HCSS LMS.
    6. In the event the license granted to Customer by HCSS for the HCSS Offerings includes the HCSS Cloud product, HCSS will: (i) supply a hosted environment to Customer for the purpose of granting access to HCSS applications and other software; and (ii) configure the server, grant and remove access to the server, provide systems updates to the server, and install and update HCSS applications to the server. Customer agrees to: (a) provide an authorized technical contact and contact number, keep any records of such details and any other Confidential Information provided by HCSS in a safe place, take all necessary steps to ensure the security of such records, and keep such information private and confidential; (b) notify HCSS immediately if Customer becomes aware of any change in circumstances which may lead Customer to believe that such information has become known to any unauthorized personnel; (c) be responsible for any use or misuse of HCSS Cloud and ensure Customer takes all the necessary steps to ensure unauthorized individuals do not access Customer’s HCSS Cloud account; (d) be responsible for the content of Customer’s use of HCSS Cloud, the application software, and associated databases; (e) provide its own internet service and access; and (f) not allow unauthorized access to HCSS Cloud from countries in which the United States of America prohibits export to. HCSS may, from time to time, suspend or change Customer’s password if HCSS reasonably believes Customer’s password has been compromised. Customer’s Confidential Information and data is in secured directories that require access authentication. Back-up of all data is performed using industry standard tools and services. HCSS will communicate with Customer to coordinate timing of HCSS application software updates. Scheduled outages will be broadcast via e-mail to Customer’s designated administrator. Access to HCSS Cloud is provided on a named user basis. For security purposes, shared or generic user accounts are not permitted unless approved in writing by HCSS. Changes to a named user account will incur an administration fee per user account change. Customer’s software maintenance must be current with any HCSS Offering being managed and hosted under the HCSS Cloud.
  10. Confidentiality
    1. Confidential Information” means all nonpublic, confidential, or proprietary information disclosed by, or on behalf of, a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether orally or in writing or via electronic means, that is marked as “confidential” or that should be reasonably understood to be confidential. Confidential Information includes, without limitation, financial statements, business and marketing plans, customer transactions, customer lists, pending or threatened litigation, prospective contractual relations, collection, tabulation and analysis of data, computer programming methods, source code, object code, designs, specifications, plans, drawings, programs, databases, intellectual property, inventions (whether or not eligible for legal protection under patent, trademark, or copyright laws), research and development, and work in progress. The terms of this Agreement will also be deemed Confidential Information. Confidential Information does not include information that: (i) is publicly available as of the Effective Date or becomes publicly available thereafter through no fault of the Receiving Party; (ii) the Receiving Party rightfully possessed before it was received from the Disclosing Party; or (iii) is subsequently furnished to the Receiving Party by a third party without restrictions on disclosure.
    2. Each Party retains all ownership rights in and to its Confidential Information. The Receiving Party must use the Disclosing Party’s Confidential Information only to perform its obligations under this Agreement and each Order Form, and for no other purpose. The Receiving Party shall not remove any copyright, trademark, patent, or other proprietary legend on or in the Confidential Information of Disclosing Party. The Receiving Party shall protect the Confidential Information using the same standard of care with which it protects its own Confidential Information, but in no event less than reasonable care.
    3. The Receiving Party may only disclose the Confidential Information to its officers, employees, consultants, counsel, independent contractors, or agents (collectively “Representatives”) who: (i) need access to the Confidential Information only to the extent necessary to assist the Receiving Party for the purposes of this Agreement and each applicable Order Form; (ii) have been instructed not to disclose the Confidential Information; and (iii) have executed a nondisclosure or confidentiality agreement with the Receiving Party that contains protections not materially less protective of the Confidential Information than those in this Agreement. The Receiving Party shall be fully responsible and liable for any breach or violation of this Agreement by its Representatives and shall use reasonable efforts to restrain its Representatives from any unauthorized use or disclosure of the Confidential Information. The Receiving Party must immediately notify the Disclosing Party in writing of all circumstances which the Receiving Party becomes aware of surrounding any possession, use, or knowledge of Confidential Information by any person or entity other than those authorized by this Agreement.
    4. If the Receiving Party is compelled by law, governmental regulation, court order, or other legal process to disclose any Confidential Information of the Disclosing Party, the Receiving Party may do so if: (i) it provides the Disclosing Party with prompt prior notice of such compelled disclosure (to the extent legally permitted); and (ii) it provides the Disclosing Party with reasonable assistance, at the Disclosing Party’s reasonable expense, if the Disclosing Party determines in its sole discretion to contest the disclosure.
  11. Representations, Warranties, and Disclaimers
    1. Each Party represents and warrants that: (i) it has the right and power to enter into this Agreement; (ii) an authorized representative has read and accepted this Agreement; (iii) it will comply with all applicable laws and regulations pertaining to this Agreement and each Order Form. Customer represents and warrants that Customer either owns or has the authority, license, or permission to use all material, content, data, and information provided to HCSS and/or used within the HCSS Offerings. HCSS warrants that: (a) it will perform the HCSS Offerings in a professional and workmanlike manner; and (b) the HCSS Offerings will materially perform in accordance with this Agreement.
    2. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION, THE HCSS OFFERINGS ARE PROVIDED ON AN “AS IS” BASIS AND HCSS HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES TO CUSTOMER, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, SUITABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR RESULTS TO BE DERIVED FROM THE USE OF THE HCSS OFFERINGS. WITHOUT LIMITING THE GENERALITY OF THE IMMEDIATELY PRECEDING SENTENCE, NEITHER HCSS NOR ANY OF ITS THIRD-PARTY SUPPLIERS OR SERVICE PROVIDERS MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY, COMPREHENSIVENESS, OR COMPLETENESS OF THE HCSS OFFERINGS NOR THAT THEY WILL BE UNINTERRUPTED. EXCEPT WHERE OTHERWISE PROHIBITED BY LAW OR LIMITED BY LAW, THIS SECTION REPRESENTS CUSTOMER’S SOLE REMEDY REGARDING A REPRESENTATION OR WARRANTY CLAIM.
  12. Data Security and Privacy
    1. Each Party shall maintain and ensure all third parties maintain reasonable and appropriate administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of the other Party’s Confidential Information. Those safeguards include measures to protect Confidential Information from loss, misuse, unauthorized disclosure, unauthorized access, alteration, and destruction. Customer shall maintain and enforce those safeguards to prevent unauthorized or fraudulent use or access of the HCSS Offerings.
    2. HCSS and Customer may enter into a data processing addendum (“DPA”), which will be incorporated into this Agreement by reference and apply to Personal Data as defined in the DPA. If any Personal Data is transferred from the European Union, the United Kingdom, or Switzerland by Customer to HCSS, the Standard Contractual Clauses will apply. For the purposes of this Agreement, Customer and its Affiliates are the data exporters.
    3. Each Party commits to report any Data Security Breach to the other Party without undue delay after discovering a Data Security Breach. “Data Security Breach” means any unauthorized access, use, disclosure, modification, or destruction of the other Party’s Confidential Information. In the event of a Data Security Breach, each Party will use commercially reasonable efforts to prevent the recurrence of a similar Data Security Breach.
    4. As required by HCSS’s hosting service providers, Customer’s Confidential Information, including any personal data as defined by applicable privacy laws, may be stored outside of the United States of America for back-up or redundant environments.
    5. During the Term of this Agreement and thereafter, the data derived by HCSS or its licensors in the performance and provision of the HCSS Offerings may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules; provided, however, such data may only be used in an anonymized, aggregated form and may not contain: (i) Customer’s Confidential Information; (ii) any information that identifies or can be reasonably used to identify an individual person; (iii) any information that identifies or can be reasonably used to identify Customer or its Affiliates, suppliers, or users; or (iv) any information that identifies or can be reasonably used to identify any activities or behaviors of Customer. The results of such analysis may be used by HCSS and its licensor for any lawful purpose.
  13. Indemnification
    1. Each Party shall indemnify, defend, and hold harmless the other Party and its respective officers, shareholders, directors, and personnel, (and keep such individuals indemnified on a full indemnity basis), from and against any third-party claims, suits, hearings, actions, damages, liabilities, fines, penalties, costs, losses, judgments or expenses (including reasonable attorneys' fees) (collectively, “Claims”), arising from or relating to the indemnifying Party’s gross negligence or willful misconduct. Customer shall indemnify, defend, and hold harmless HCSS against any third-party Claims arising from Customer’s: (i) use of the HCSS Offerings in violation of the terms of this Agreement or an Order Form; (ii) violation of applicable law; or (iii) data provided to HCSS that infringes or violates a third party’s privacy right or intellectual property right. HCSS shall indemnify, defend, and hold harmless Customer against any third-party Claims arising from the HCSS Offerings infringing a third party’s intellectual property right. If HCSS receives information regarding an infringement claim related to the HCSS Offerings, HCSS may in its sole discretion: (a) modify the HCSS Offerings so that the HCSS Offerings are no longer infringing; (b) obtain a license for Customer’s continued use of the HCSS Offerings; or (c) terminate the HCSS Offerings and refund Customer for any prepaid fees for unused HCSS Offerings. HCSS’s indemnity for intellectual property infringement stated above only applies if: (1) the allegation states with specificity that the HCSS Offerings are the basis for the claim for indemnification; (2) the allegation arises from the use of the HCSS Offerings with software, hardware, data, or processes provided directly by HCSS; and (3) Customer uses the HCSS Offerings in accordance with this Agreement or applicable Order Form.
    2. The indemnified Party shall give the indemnifying Party advance written notice of any Claims for indemnification. The indemnified Party agrees to relinquish control of defending any such Claim to the indemnifying Party, including the right to settle; provided, however, the indemnifying Party may not settle any such Claim without the indemnified Party’s prior written consent if such settlement would impose any obligations or liability on the Indemnified Party. This section states the entire liability of each Party with respect to third-party Claims.
  14. Limitation of Liability
    IN NO EVENT WILL HCSS BE LIABLE TO CUSTOMER AND CUSTOMER’S AFFILIATES FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR “COSTS OF COVER” ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ALL APPLICABLE ORDER FORMS, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING OUT OF ANY MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, DEFECTS, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, OR ANTICIPATORY PROFITS, REGARDLESS OF WHETHER THE POSSIBILITY OF SUCH DAMAGES WAS MADE KNOWN OR WAS FORESEEABLE. THE MAXIMUM AGGREGATE LIABILITY OF HCSS AND ITS AFFILIATES TO CUSTOMER AND CUSTOMER’S AFFILIATES, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ALL APPLICABLE ORDER FORMS WILL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO HCSS FOR THE HCSS OFFERINGS UNDER THE APPLICABLE ORDER FORM WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
  15. Force Majeure
    Neither Party will be liable for any delay or failure to perform (except for Customer’s payment obligations) to the extent such delay or failure is a result of causes beyond its reasonable control (a “Force Majeure Event”). Both Parties shall use all reasonable efforts to overcome or work around the Force Majeure Event as soon as reasonably practicable.
  16. Export Control and Sanctions Laws
    Each Party will comply with all applicable export control and sanctions laws and regulations of the United States of America and any other applicable governmental authority, including, but limited to, the U.S. Export Administration Regulations and U.S. sanctions regulations (collectively, “Export Control and Sanctions Laws”). Neither Party will engage in any transactions with any person, legal entity, or country prohibited by Export Control and Sanctions Laws, including, but not limited to, the prohibition against transactions with: (i) a national or resident of any country subject to United States of America sanctions or similar restrictions; or (ii) anyone on the U.S. Department of the Treasury’s Specially Designated Nationals and Blocked Persons List or other sanctions lists (collectively, “OFAC Lists”). Each Party represents and warrants that is not: (a) listed on the OFAC Lists; (b) located in a country subject to sanctions; or (c) owned or controlled by any entity listed on the OFAC Lists or located in a country subject to sanctions.
  17. Anti-Bribery and Anti-Corruption
    Each Party will comply with all applicable laws and regulations relating to anti-bribery and anti-corruption, including, but not limited to, the Foreign Corrupt Practices Act of 1977 and U.S. anti-boycott laws. Neither Party has promised, offered, made, or received any illegal or improper bribe, kickback, payment, gift, or other similar payment or transfer of value to or from a director, officer, employee, agent, or other representative of the other Party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the restriction in this section.
  18. United States Government Rights
    If Customer is a branch, agency, or instrumentality of the United States federal, state, or local government or acquired a license to the HCSS Offerings pursuant to a government contract or with government funds, then as defined in FAR §2.101, DFAR §252.227-7014(a)(1), and DFAR §252.227-7014(a)(5) or otherwise, all HCSS Offerings provided in connection with this Agreement are considered “commercial items”, “commercial computer software”, or “commercial computer software documentation”. Consistent with DFAR §227.7202, FAR §12.212, and any other relevant sections of the Code of Federal Regulations, any use, modification, reproduction, release, performance, display, disclosure, or distribution by or for the United States government is governed solely by the terms of this Agreement and is prohibited except to the extent permitted by the terms of this Agreement.
  19. Assignment
    Neither Party may assign this Agreement, any Order Form, or any of its rights or obligations under this Agreement or any Order Form without the other Party’s prior written consent; provided, however, either Party may assign this Agreement and any Order Form in their entirety, without the other Party’s prior written consent, in connection with a merger, acquisition, corporate reorganization, or the sale of all or substantially all its assets related to this Agreement to the extent such assignment is not to a Party’s direct competitor. Any attempted assignment in violation of this section will be deemed null and void. This Agreement will be binding upon and will inure to the benefit of the Parties hereto and their respective heirs, representatives, successors, and permitted assignees.
  20. Modifications
    No modification of this Agreement or Order Form will be binding upon Customer and HCSS unless made in writing and signed by duly authorized representatives of both Parties. However, in the event HCSS ceases to provide a certain HCSS Offering, HCSS may, in HCSS’s sole discretion, unilaterally replace that certain HCSS Offering with a comparable HCSS Offering as long as HCSS provides Customer with at least three (3) months’ notice about the replacement. Notwithstanding the foregoing, the Parties agree that transactional changes to any orders submitted pursuant to an executed Order Form may be made via email and such submission shall be deemed accepted as evidenced by HCSS’s fulfillment of such change or request. All such email requests are subject to the terms and conditions of this Agreement and any Order Form.
  21. Remedies and Waivers
    All remedies hereunder are cumulative, and the exercise by any Party of any rights hereunder will not preclude such Party from pursuing any additional remedies available to it under this Agreement, or any other legal or equitable rights afforded such Party. The failure of either Party to require the performance of any term or condition of this Agreement will not prevent any subsequent enforcement of such term or condition, nor will it be deemed a waiver of any subsequent breach.
  22. Governing Law, Jurisdiction, and Waiver of Jury Trial
    This Agreement is governed by the laws of the State of Texas, without regard to the conflicts of law principles. The Parties irrevocably submit to the exclusive jurisdiction of any United States federal or Texas state court located in Houston, Texas with respect to any matter arising out of or relating to this Agreement. THE PARTIES AND ANY OF THEIR AFFILIATES WAIVE THE RIGHT TO A TRIAL BY JURY ON ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT.
  23. Severability
    A decision by any court of competent jurisdiction invalidating or holding unenforceable any part of this Agreement will not affect the validity and enforceability of any other part of this Agreement.
  24. Relationship of the Parties Each Party will perform its obligations under this Agreement as an independent contractor, not as the other Party’s employee, partner, or agent. Neither Party will have authority to act in the name of or on behalf of the other, or to enter into any commitment or make any representation or warranty or otherwise bind the other Party in any way.
  25. Third-Party Beneficiaries
    Unless otherwise specified in an Order Form, there are no third-party beneficiaries to this Agreement.
  26. Notices
    Any notice required will be given in email or writing. If the notice is delivered by email, the notice will be deemed effectively given when the other Party acknowledges having received that email. If the notice is delivered in writing, the notice will be deemed effectively given upon: (i) personal delivery, (ii) deposit in the U.S. post office as certified or registered mail; (iii) or deposit with a private next day delivery service. All correspondence to Customer required by this Agreement will be addressed to the contact information set out in the Order Form. All correspondence to HCSS required by this Agreement will be addressed to Heavy Construction Systems Specialists, LLC, 13151 W Airport Blvd, Sugar Land, TX 77478, Attn: General Counsel.
  27. Entire Agreement and Order of Precedence
    This Agreement constitutes the entire agreement between the Parties with respect to Customer’s use of the HCSS Offerings and merges all prior and contemporaneous communications. Each Order Form will be subject to and incorporate the terms of this Agreement. The Parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation is void. In the event of a conflict among the terms and conditions of this Agreement and an Order Form, the Order Form will control. Titles and headings of the sections of this Agreement are for description and convenience only and will not affect the construction of any provision of this Agreement.
  28. Surviving Provisions
    The following sections will survive any termination or expiration of this Agreement: “Termination”, “Effect of Termination”, “Fees, Taxes, and Payment”, “Proprietary Rights”, “Conditions of Use”, “Confidentiality”, “Representations, Warranties, and Disclaimers”, “Indemnification”, “Limitation of Liability”, “Export Control and Sanction Laws”, “Anti-Bribery and Anti-Corruption”, “Assignment”, “Remedies and Waivers”, “Governing Law, Jurisdiction, and Waiver of Jury Trial”, “Severability”, “Relationship of the Parties”, “Third-Party Beneficiaries”, “Notices”, “Entire Agreement and Order of Precedence”, “Surviving Provisions”, and any other provisions or sections which, by their nature, are intended to survive termination or expiration of this Agreement.

(Version Date: March 2, 2023)

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