SkySpecs will use commercially reasonable efforts to provide Customer the services (“Services”) described in an order from signed by both parties (“Order Form”) during the term of the Order Form (“Term”) in accordance with this Agreement and the Service Level Terms. Please see the Glossary for more information about the Services referenced in your Order Form. SkySpecs may, from time to time and in its sole discretion, make improvements and updates to the Services described in an Order Form and will make such updates available to Customer during the Term. If SkySpecs introduces any new feature or product that it markets as new and distinct from its current offerings, such features or products may be purchased by Customer for an additional charge. SkySpecs will not provide custom data processing or export as part of the Services.

Customer Responsibilities.

In order to ensure that the Services are provided in an efficient and timely manner, Customer understands that its cooperation and support is essential to success. As such, Customer agrees to the responsibilities described in this Agreement.

Customer will identify an individual as the primary point of contact for SkySpecs for the duration of the services engagement (“Customer Key Contact”). Customer will designate one or more individuals as an administrator for Horizon: SkySpecs Inspection Management (“Customer Admin”). As part of the registration process, the Customer Admin will identify an administrative user name and password for its account and have the authority to request or remove access for additional Users and set permissions. The Customer Admin may request usernames and passwords for User access by emailing support@skyspecs.com. SkySpecs reserves the right to refuse registrations or cancel passwords it deems inappropriate. Customer is responsible for use of the Services by its Users and for their compliance with this Agreement. “User” means any individual who is authorized by Customer to use the Services under Customer’s account, including Customer’s employees, consultants, contractors, or agents.

Customer will provide timely and accurate data, information, and materials that SkySpecs may request from time to time, as well as other reasonable assistance that SkySpecs reasonably requires in order to perform the Services. Where applicable, Customer will also provide SkySpecs with access to all of its relevant sensor systems and corresponding data services for all monitored turbines, and will be responsible for monitoring, maintaining, and if necessary, repairing the system connectivity on an ongoing basis. Customer understands that its failure to provide timely or accurate information may delay the Services, and Customer holds SkySpecs harmless from any such delays.

Restrictions and Responsibilities

Customer will not, directly or indirectly:; reverse engineer, decompile, analyze, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); copy, modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by SkySpecs or authorized within the Services); make the Services or Software available to anyone other than Customer and its Users or use the Services for the benefit of anyone other than Customer (including renting, sublicensing, re-selling, distributing, time sharing, or service bureau purposes); access the Services or Software to build a competitive product or service; remove any proprietary notices or labels; or attempt to interfere with or disrupt the Services (or any related systems or networks). Customer will promptly notify SkySpecs of any suspected violation of this Agreement and will cooperate with SkySpecs to address the suspected violation. SkySpecs may suspend or terminate any User’s access to the Services upon notice to the Customer in the event SkySpecs reasonably determines that such User violated this Agreement or is using the Services In a manner that SkySpecs reasonably believes may cause a security risk or a disruption to SkySpecs’ ability to provide the Services.

Customer represents, covenants, and warrants that Customer will use the Services only in compliance with all applicable laws and regulations. Although SkySpecs has no obligation to monitor Customer’s use of the Services, SkySpecs may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of this Agreement.

Customer shall be responsible for the accuracy, quality, and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services. Customer shall also be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

Customer, at its option, may utilize certain third-party software and services with the Services and is responsible for acquiring and maintaining all such third-party software and services required to access, use, or integrate with the Services, including all costs related to the foregoing. To the extent Customer authorizes the access or transmission of Customer Data through a third-party service, such third-party service terms will govern, and SkySpecs will not be responsible for, any use, disclosure, modification or deletion of such Customer Data or for any act or omission on the part of such third-party provider or its service.

Confidentiality; Proprietary Rights

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 (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of SkySpecs includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to SkySpecs to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that this Section 4.1 shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

Customer shall own all right, title, and interest in and to the Customer Data and any reports or other deliverables created solely and exclusively for Customer by SkySpecs in connection with the Services (“Deliverables”). SkySpecs shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions, databases, or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing. 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.

Notwithstanding anything to the contrary, SkySpecs shall have the right collect and analyze data and other information relating to the provision, use, and performance of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and SkySpecs will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other SkySpecs offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

Security and Privacy

SkySpecs will maintain commercially reasonable 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.

During the Term, SkySpecs will process any personal data in accordance with the Data Processing Addendum. Except as expressly stated in Section 8 of this Agreement, all other warranties, conditions, and representations, whether express or implied, are excluded, subject to applicable law.

Payment of Fees

Customer will pay SkySpecs the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). Amounts due are payable in the currency set forth in the applicable bill or invoice. If Customer’s use of the Services exceeds the service capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. SkySpecs reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then current renewal term, upon thirty (30) days’ prior notice to Customer (which may be sent by email). Customer remains responsible for Fees even if it executes an Order Form for the benefit of another entity. If Customer disputes any part of a bill in good faith, Customer will pay the undisputed part and provide SkySpecs with notice and detail of the dispute no later than 30 days after the date of the invoice in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to SkySpecs’ customer support department. For subscriptions and annual services, SkySpecs reserves the right to increase an Order Form’s fees each calendar year to adjust for inflation, provided that SkySpecs provides 30 days’ written notice to Customer and any such increase does not exceed the annual increase in the US Department of Labor Consumer Price Index for the preceding 12-month period.

SkySpecs may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by SkySpecs thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.

Fees do not include taxes. SkySpecs will invoice Customer for, and Customer will pay, all taxes imposed on, or based on, the provision, sale, or use of the Services, including sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties.

All amounts paid are nonrefundable, and all payment obligations agreed to in the Order Form and in any Renewal Term are non-cancellable unless otherwise expressly provided in this Agreement.

Term and Termination

This Agreement begins on the Effective Date and, unless earlier terminated pursuant to this Agreement, continues for a period of one year. Upon expiration of such period, this Agreement will automatically renew on a month-to-month basis until either party gives at least 30 days prior written notice of termination. The Term for the Services is as specified in the Order Form. Either party may terminate the Order Form upon 30 days’ notice if the other party materially breaches any of the terms or conditions of this Agreement and such breach is not cured within such 30-day period. SkySpecs, in its sole discretion, may immediately and without notice terminate an Order Form or suspend the Customer’s access and use of the Services (a) if Customer fails to pay all undisputed amounts in full by the payment due date, or (b) in the event SkySpecs reasonably determines that a User is using the Services in a manner that may cause a security risk or a disruption to SkySpecs’ ability to provide the Services. Termination or suspension will not relieve Customer’s obligations to pay amounts due.

Upon expiration or termination of the Order Form or this Agreement, Customer will pay in full for the Services up to and including the last day on which the Services are provided, and Customer’s right to access and use the Services will immediately terminate. SkySpecs will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter SkySpecs is not obligated to store Customer Data. 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.

Warranty and Disclaimer

SkySpecs shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services 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’ reasonable control, but SkySpecs shall use reasonable efforts to 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 analysis or results that may be obtained from use of the Services or any repair, maintenance or other decisions that may be made in reliance on the analysis or results. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND SKYSPECS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

Indemnity

SkySpecs shall 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, provided SkySpecs is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; SkySpecs will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by SkySpecs, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by SkySpecs, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by SkySpecs to be infringing, SkySpecs may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

Customer shall defend, indemnify, and hold harmless SkySpecs, its officers, directors, affiliates, successors, assigns, and employees from all claims, damages, liabilities, assessments, losses, costs and other expenses arising out of or resulting from any claim, demand, suit, action or any other proceeding by a third party that arises out of or relates to the actual or alleged, infringement of any patent or copyright or misappropriation of any trade secret of a third party relating to or arising from SkySpecs’ access and/or use of the Customer Data.

Limitation of Liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, SKYSPECS AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND SKYSPECS’ REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO SKYSPECS FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SKYSPECS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Insurance

SkySpecs has obtained and will maintain the following insurance during the term of any active Order Form: General Liability Insurance in the minimum amount of $1,000,000 per incident, $2,000,000 in aggregate; 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; and Cyber Security Insurance in the minimum amount of $10,000,000 in the aggregate. SkySpecs will name Customer as an additional insured and furnish Customer with a certificate of insurance evidencing the above insurance upon request.

Export Restrictions

Customer represents and warrants that it is not named on any government list of prohibited or restricted parties, nor is it owned or controlled by or acting on behalf of any such parties. Customer agrees that it will not access or use the Services in any manner that would cause any party to violate any international embargoes, economic sanctions, or export controls laws or regulations.

Any software and other technical information disclosed under this Agreement may be subject to restrictions and controls imposed by the Export Administration Act, Export Administration Regulations and other laws and regulations of the United States and any other applicable government or jurisdiction, as enacted from time to time (the “Acts”). The Parties shall comply with all restrictions and controls imposed by the Acts.

Miscellaneous

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.

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

This Agreement is not assignable, transferable, or sublicensable by Customer except with SkySpecs’ prior written consent. SkySpecs may transfer and assign any of its rights and obligations under this Agreement without consent.

This Agreement 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.

The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.  All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.

No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind SkySpecs in any respect whatsoever.

In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

All notices under this Agreement will be in writing and sent to the business mailing or email address specified in this Section or the Order Form. Notices 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 to SkySpecs must be sent to legal@skyspecs.com.

This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws rules. Customer unconditionally (i) agrees that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Chancery Court of the State of Delaware (the “Delaware Court”), and not in any other state or federal court in the United States of America or any court in any other country, (ii) consents to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of or in connection with this Agreement, (iii) waives any objection to the laying of venue of any such action or proceeding in the Delaware Court, and (iv) waives, and agrees not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.

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.

Counterparts.

This Agreement and the Order Form may be executed in one or more counterparts, each of which will be deemed to be an original and such counterparts together will constitute one and the same agreement. A signed copy of this Agreement or the Order Form delivered by email will be deemed to have the same legal effect as delivery of an original signed copy.

Extension to Affiliates.

Any Affiliate of Customer will have the right to enter into a Statement of Work or Order Form with or to issue Purchase Orders to SkySpecs under this Agreement (together, Customer and any such Affiliate, the “Purchaser”) and this Agreement will apply to each such Statement of Work, Order Form, and Purchase Order (each, an “Order”) as if the Affiliate was a signatory to the Agreement.  With respect to such Orders, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate.  Each Order is a separate obligation of the Customer entity or entities that execute(s) such Orders, and no other Customer entity has any liability or obligation under such Order.  For purposes of this Agreement, “Affiliate” means, with respect to a particular person, any entity that directly or indirectly controls, is controlled by, or is under common control with such person.