Master Software and Services Agreement

1.       Agreement Structure

1.1 General Terms and Incorporation of Supplemental Terms and Conditions Exhibits. This Agreement, together with the Supplemental Terms and Conditions Exhibits listed below (“Exhibits”), establishes the general terms and conditions to which the parties have agreed to in order to facilitate the provision of Services (defined below).

• Exhibit: Software as a Service – Supplemental Terms and Conditions

• Exhibit: Inspection Services – Supplemental Terms and Conditions

• Exhibit: CMS Services – Supplemental Terms and Conditions

• Exhibit: Repair Vendor Management – Supplemental Terms and Conditions

• Exhibit: Tech-Enabled Insights – Supplemental Terms and Conditions[endif]

• Exhibit: SkySpecs Performance – Supplemental Terms and Conditions

• Exhibit: T-Lines – Supplemental Terms and Conditions

1.2 Incorporation of Orders. The parties may enter into Order(s) (defined below) from time to time. Each Order incorporates the terms of this Agreement and of the Exhibits.

1.3 Extension to Affiliates. Any Affiliate of Customer will have the right to order Services from SkySpecs, or an Affiliate of SkySpecs, by entering into a mutually agreed upon and executed Statement of Work (“SOW”) or Order Form, or by issuing a Purchase Order (each SOW, Order Form, or Purchase Order, an “Order”) under this Agreement.  References in this Agreement to “Customer” and “SkySpecs” will mean the respective entities entering into the applicable Order as if the Affiliate was a signatory to this Agreement. Each such Order will be deemed a separate agreement binding those two parties to the terms and conditions of this Agreement.  “Affiliate” means an entity controlled, controlling, or under common control with a party, where control means at least 50% ownership or power to direct an entity’s management.

2.       Scope of Services. In accordance with the terms and conditions set forth in this Agreement, SkySpecs will provide Customer with the Services described in one or more Orders. Each Order shall be deemed accepted and incorporated into this Agreement when signed by authorized representatives from each party. “Services” may include inspection services, implementation services, professional services, data management services, as well as services made available by SkySpecs through its proprietary hardware (“Hardware”) and hosted proprietary software platform and mobile applications (“Software”). 

3.       Change Orders. Any changes to the Order must be mutually agreed upon by both parties in writing. 

4.       Feature Updates; New Products. SkySpecs may make improvements and updates to the Services from time to time (“Updates”) and will make such Updates available to Customer during the Term. All Updates provided to Customer during the Term are deemed part of the Services and subject to the terms in this Agreement. If, however, SkySpecs introduces any new feature or product that it markets as new and distinct from its current offerings, SkySpecs may make any such feature or product available to Customer for an additional charge under a new Order.

5.       Fees and Payment.  Customer will pay SkySpecs the fees set forth in the Order (“Fees“) within 30 days of each invoice. Customer remains responsible for Fees even if it executes an Order for the benefit of another entity. For any subscription services, SkySpecs reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial service term or then‑current renewal term, upon 30 days prior notice to Customer (which may be sent by email). SkySpecs reserves the right to add to any invoice all applicable taxes, duties, tariffs, use fees, export fees, import fees, customs charges, and any other governmental charges, levies, or assessments (collectively, “Additional Charges”) that may be imposed by any federal, state, local, or foreign authority in connection with the services provided hereunder. All such Additional Charges shall be separately stated on the invoice and paid by Customer in addition to the agreed-upon service fees. If any Additional Charges are imposed after the invoice date, SkySpecs may issue a supplemental invoice for such charges. Customer shall be responsible for payment of all Additional Charges regardless of whether they are imposed on SkySpecs or Customer directly. Fees paid are non-refundable. All amounts payable to SkySpecs under this Agreement will be paid by Customer in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law). 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.

6.       Fee Disputes. If Customer believes that SkySpecs has billed Customer incorrectly, Customer must contact SkySpecs no later than 60 days of the invoice or billing statement, as applicable, in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to SkySpecs’s support team at support@skyspecs.com.

7.       Term & Termination. This Agreement will start on the Effective Date and will continue until the termination or expiration of all Statements of Work entered into by the parties for the Services, including any renewal terms (the “Term”). Each party may terminate an Order if the other party materially breaches any of its obligations under such Order and does not correct such breach within 30 days of its receipt of written notice of the breach from the non-breaching party.  Customer’s failure to pay constitutes a material breach.  In the event of termination of an Order, Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon termination or expiration (except where SkySpecs terminates an Order because of Customer’s breach), SkySpecs will make all Customer Data available to Customer for electronic retrieval for 30 days.  All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

8.       Confidentiality and Data Protection. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (“Proprietary Information”).  The Receiving Party agrees: (a) to protect the Proprietary Information with protections at least equal to those which the Receiving Party uses to protect its own confidential and proprietary data, but in no event less than reasonable care, and (b) not to use (except in performance of the Services or as otherwise expressly permitted in this Agreement) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing will not apply with respect to any information after 3 years following the disclosure or any information that the Receiving Party can document (i) is or becomes generally available to the public, or (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, (iv) was independently developed without use of any Proprietary Information of the Disclosing Party, or (v) is required to be disclosed by Law. 

9.       Customer Intellectual Property. Customer owns all non-public data provided by Customer to SkySpecs and uploaded to or generated by Customer in the Software to enable the provision of the Services (“Customer Data”). Customer also owns materials created by SkySpecs solely and exclusively for Customer in connection with providing the Services and expressly identified as a deliverable in a Order (“Deliverables”).  Notwithstanding anything to the contrary, SkySpecs will have the right to collect Customer Data and other data and information relating to and derived from the provision of the Services and, during and after the term, (a) use such data and information internally to improve the Services and for other development and diagnostic purposes in connection with the Services and other SkySpecs offerings, and (b) disclose such data solely in aggregate or other de-identified form in connection with its business. SkySpecs agrees that such anonymized Customer Data will not include any data which would identify Customer, any site, or any individual user. Customer further grants SkySpecs a worldwide, perpetual, and royalty-free right and license to use any feedback, suggestions and/or enhancement or upgrade requests that are provided by Customer to SkySpecs.

10.   SkySpecs Intellectual Property. SkySpecs and its affiliates own and will retain ownership rights in the Services and all materials, information, data, databases, documentation, instructions, methodologies, Hardware, and Software used in connection with providing the Services, all improvements and modifications thereto, and any new technology or other intellectual property developed in connection with providing the Services (“SkySpecs Intellectual Property“).  SkySpecs and its affiliates grant to Customer a limited, non-exclusive, non-transferable, revocable right and license to access and use the SkySpecs Intellectual Property solely internally to receive the benefit of the Services during the term set forth in the applicable Order. Customer will not reverse engineer or otherwise attempt to discover the source code and/or any trade secrets associated with the Services; distribute, sub-license, transfer and/or otherwise make any component of the Services available to any third party; and/or use the Services to develop and/or distribute any competitive product or service.

11.   Trial Access: Customer may be provided with access to beta, trial, proof of concept, or sandbox versions of the Services or features within the Services where so indicated in the Order Form (collectively, the “Non-Production Versions of the Services”). Customer acknowledges and understands that its use of the Non-Production Versions of the Services is not required and is at Customer’s own risk, and that Non-Production Versions of the Services are made available on an “as is” basis without warranties of any kind, may be discontinued or modified at any time, and may be subject to other terms. Non-Production Versions of the Services are not for production use, not supported, and not subject to availability obligations. SkySpecs will have no liability for any harm or damage arising out of or in connection with Non-Production Versions of the Services. 

12.   Compliance with Law; Health, Safety, & Environmental: In connection with its provision of inspection services, SkySpecs will comply with all applicable statutes, rules, regulations and orders including, without limit, licensing and certification requirements, environmental laws, health and safety laws, worker health and safety laws and laws pertaining to labor wages, hours and other conditions of employment in effect at the time the Services are being performed (collectively, “Laws”). Customer agrees to use the Services in accordance with SkySpecs’ policies and all applicable Laws.

13.   Security & Privacy. SkySpecs maintains appropriate physical, managerial, and technical safeguards to preserve the integrity, security and privacy of Customer Data. SkySpecs will provide copies of its data privacy and data security policies upon request. Notwithstanding the foregoing, Customer is responsible for maintaining the security of its customer accounts and passwords and SkySpecs will not be liable for any losses caused by any unauthorized use of Customer’s account.

14.   SkySpecs Representations and Warranties; Disclaimers. SkySpecs will perform the Services with qualified personnel, suitably skilled and trained in the performance of the Services, and in accordance with applicable industry standards and practices and in compliance with applicable Laws.  SkySpecs personnel will have and maintain required licenses and permits to perform the Services. SkySpecs will also maintain such Software in a manner which minimizes errors and interruptions.  Notwithstanding the foregoing, the Software may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by SkySpecs or by third-party providers, or because of other causes beyond SkySpecs’s reasonable control, but SkySpecs will provide advance notice in writing or by e-mail of any scheduled service disruption. However, SkySpecs does not warrant that the Services will be uninterrupted or error free, nor does it make any warranty as to the results that may be obtained from the use of the Services or any repair, maintenance, or other decisions that may be made in reliance on the results.  Customer acknowledges that it is solely responsible for all asset management decisions made in reliance on the Services and releases and holds harmless SkySpecs from any liability that may result from any such decisions.  Except as expressly set forth in this Section, the Services are provided “AS IS” and SkySpecs disclaims all other warranties, express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose.  

15.   SkySpecs Indemnification Obligations. SkySpecs will hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret to the extent that such damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) arise from a finding by a court of competent jurisdiction that Customer’s use of the Services in compliance with this Agreement infringes a third party’s intellectual property rights. To qualify for such defense and payment, Customer must: (a) give SkySpecs prompt written notice of such claim; (b) grant SkySpecs sole control of the defense or settlement of the claim; and (c)  provide SkySpecs with information and reasonable assistance in the defense of the claim.  Customer will not settle or compromise any claim without SkySpecs’ prior written consent, however, Customer may, at Customer’s sole cost and expense, participate in the defense of any claim through counsel of its own choosing.  The foregoing obligations do not apply with respect to portions or components of the Service that are modified by Customer, combined with other products or materials without SkySpecs’ prior written consent and where the alleged infringement relates to such combination, or where Customer uses the Services in a manner not permitted by this Agreement.  If the Services are found to be infringing, SkySpecs may, at its option and expense (i) replace or modify the Services to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality, (ii) obtain for Customer a license to continue using the Services, or (iii) if neither of the foregoing is commercially practicable, terminate the applicable Order and provide Customer with a refund of any prepaid, unused fees for the Services.

16.   Delays Caused by Excusable Events. If SkySpecs’ performance of its obligations under this Agreement is prevented or delayed by an Excusable Event, SkySpecs will 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.  “Excusable Event” means (a) acts beyond SkySpecs’ reasonable control, including without limitation, natural disasters, catastrophes, power shortages, Internet provider failures, epidemics, wars, riots or other similar acts of civil unrest, government actions or changes in law, national emergencies, strikes, and industrial disturbances, (b) for inspection services, weather-related delays, including lightening, precipitation, extreme temperatures, high wind, high waves, or fog, or (c) acts or omissions of Customer or any Customer agent, including a Customer’s breach of its obligations under this Agreement.

17.   Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (A) SKYSPECS AND ITS AFFILIATES, REPRESENTATIVES, OFFICERS, EMPLOYEES, SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), AND CONTRACTORS WILL NOT BE RESPONSIBLE OR LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ERROR OR INTERRUPTION OF USE, LOSS, INACCURACY, OR CORRUPTION OF DATA, LOSS OF BUSINESS, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE, AND (B) IN NO EVENT WILL SKYSPECS’ AGGREGATE LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTIONS ARISING OUT OF THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE), EXCEED THE FEES PAID TO IT BY CUSTOMER (I) IN THE APPLICABLE STATEMENT OF WORK GIVING RISE TO A CLAIM, WHERE THE APPLICABLE STATEMENT OF WORK IS FOR A FIXED TERM OR NON-RECURRING SERVICES; OR (II) IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM, WHERE THE APPLICABLE STATEMENT OF WORK IS ANNUAL OR SUBSCRIPTION SERVICES.

18.   Subcontracting. SkySpecs may use subcontractors to assist it in performing a portion of its Services, but SkySpecs will remain responsible for the proper performance of any subcontracted Services and be responsible for the acts and omissions of its subcontractors. SkySpecs will provide Customer with the names of any subcontractors that it works with in connection with providing the Services upon request.

19.   Insurance. SkySpecs has obtained and will maintain the following insurance during the term of any active Order: Cyber Security Insurance in the minimum amount of $10,000,000 in the aggregate; Workers’ Compensation Insurance in accordance with statutory requirements and Employer’s Liability Insurance in the minimum amount of $1,000,000 per accident; General Liability Insurance in the minimum amount of $1,000,000 per incident, $2,000,000 in aggregate; Automobile Liability Insurance in the minimum amount of $1,000,000 combined single limit each accident; Umbrella Liability Insurance in the minimum amount of $10,000,000 per occurrence; Professional/Errors and Omissions Liability Insurance in the minimum amount of $2,000,000 per occurrence; Aviation Insurance in the minimum amount of $5,000,000. SkySpecs will name Customer as an additional insured and furnish Customer with a certificate of insurance evidencing the above insurance upon request.

20.   Marketing and Publicity. SkySpecs may use Customer’s name and logo solely in presentations, marketing materials, customer lists, and website listings for the purpose of advertising SkySpecs’ business.  SkySpecs will not include any statements of endorsement without Customer’s prior written consent.

21.   Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.

22.   Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  Notices may be sent to the address that either party may specify to the other in the Order or otherwise in writing. A copy of all notices sent to SkySpecs will be sent to legal@skyspecs.com.

23.   Assignment. Neither party may assign this Agreement without the other party’s prior written consent, provided, however, that either party may assign this Agreement without the other party’s prior written consent to any entity that acquires all or substantially all of the business or assets of such party, whether by merger, reorganization, acquisition, sale or otherwise.  Any assignment made in violation with this provision shall be void.

24.   Entire Agreement. This Agreement, including all Orders, 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. SkySpecs will accept purchase orders as required by Customer but any terms and conditions pre-printed on or referenced in any such purchase order, previous agreement or other document will be superseded and replaced by the terms and conditions of this Agreement. In the event of any conflict or inconsistency between the terms in this Agreement and any Order or addendum, the terms of this Agreement will control unless the Order or addendum specifically provides that it controls as to the particular term in question.

25.   Waivers. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. 

26.   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. 

27.   Dispute; Attorney Fees. The parties have a duty to negotiate in good faith to resolve any disputes and shall inform one another promptly following the occurrence or discovery of any item or event that would reasonably be expected to result in a dispute. The prevailing party in a dispute will be entitled to recover from the other party reasonable attorney fees and other costs incurred by it and to collect any fees or charges due it under this Agreement.

28.   Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of Michigan, excluding its conflicts of laws rules. Each party consents to exclusive jurisdiction by the state and federal courts in Washtenaw County, Michigan.