This Master Equipment Services Agreement (the “Agreement”), effective as of the date of the last signature on the Work Order (the “Effective Date”), is made by and between Dusty Robotics, Inc., a Delaware Corporation, having its principal place of business at 909 San Rafael Avenue, Mountain View, CA 94043 (“Dusty”), and “Customer” as defined in the Work Order. This Agreement refers to Dusty and Customer individually as a “Party” and collectively as the “Parties”. Capitalized terms used in this Agreement have the meanings set forth in this Agreement or in Section 16.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties to this Agreement agree as follows:

1. DUSTY SERVICES.

1.1. Dusty Services. Upon request by Customer, Dusty shall provide to Customer with access and use of Dusty’s FieldPrinter Package, which includes following services for each Project (the “Dusty Services”):

(b) Training for Equipment Operators as further described in Section 2.2;

(c) Technical support as further described in Section 5.2; and

(d) Reporting: Dusty shall provide Customer with standard reports and productivity metrics for Customer’s use of the Equipment.

1.2. Excluded Services. Notwithstanding anything to the contrary, the Dusty Services do not include: (a) any redesign of the construction Project set forth in the Customer Data; or (b) any labor for operating the Equipment.

1.3. NO LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, CUSTOMER HAS AND WILL RETAIN SOLE RESPONSIBILITY FOR: (A) OBTAINING ANY AND ALL PERMITS, LICENSES, APPROVALS, AUTHORIZATIONS, REGISTRATIONS, CERTIFICATES, AND VARIANCES ASSOCIATED WITH THE RESULTS OF THE DUSTY SERVICES, INCLUDING ANY APPROVALS FROM LICENSED ARCHITECTS, ENGINEERS, AND GOVERNMENTAL AUTHORITIES; (B) ALL RESULTS OBTAINED FROM, AND ALL CONCLUSIONS, DECISIONS, AND ACTIONS BASED ON, THE USE OF THE DUSTY SERVICES. IN NO EVENT WILL DUSTY BE LIABLE FOR ANY DAMAGES THAT ARISE OUT OF OR ARE RELATED TO THE CUSTOMER’S USE OF THE DUSTY SERVICES OR THE RESULTS OF THE DUSTY SERVICES.

2. USE OF EQUIPMENT AND DUSTY MATERIALS.

2.1. Right to Use Equipment and Dusty Materials. Subject to the terms and conditions of this Agreement and any applicable Work Order, Dusty hereby grants Customer a right to use the Equipment during the Equipment Use Term (as defined below), solely for use by Equipment Operators in accordance with the terms and conditions set forth in this Agreement and the Work Order. Such use is limited to the Project and Location set forth in the applicable Work Order. The foregoing right includes a non-exclusive, non-transferable (except in compliance with Section 15.14) license to access and use the Dusty Materials during the applicable Equipment Use Term for the Project. Subject to Section 2.2, Customer may from time to time in its discretion engage Equipment Operators (as defined below) from third-parties to operate the Equipment and use the Dusty Materials (each, a “Subcontractor”). Customer shall: (a) ensure that each Subcontractor complies with all relevant terms of this Agreement, including all provisions related to the use and operation of the Equipment and other Dusty Materials; (b) remain responsible and liable for any and all: (i) use of the Equipment and other Dusty Materials, including the proper supervision and coordination of the use of the Equipment and other Dusty Materials; and (ii) acts and omissions of each Subcontractor to the same extent as if such acts or omissions were by Customer; (c) any non-compliance by any Subcontractor with the provisions of this Agreement or any Work Order will constitute a breach by Customer.

2.2. Operators. Customer understands and agrees that all individuals operating, or intending to operate, the Equipment or any portion thereof must be qualified and have attended a Dusty training session or otherwise received training from Customer employees or contractors who have themselves received training directly from Dusty, in advance of any such operation, in whole or in part, of any Unit of Equipment (each such individual, a “Equipment Operator”). Prior to any use of any Unit of Equipment, Customer shall, at its own cost and expense, unless otherwise agreed, appoint its employees or contractors to become Equipment Operators and attend (including remotely) Dusty’s technical training on the technical and functional features of the Equipment, including technical training in customer service, support, and troubleshooting techniques for the Equipment. Customer shall ensure that each such employee or contractor train other Customer employees or contractors to be Equipment Operators. Customer understands and agrees that it shall remain solely and directly responsible to Dusty for the acts and/or omissions of each Equipment Operator. Without limiting the foregoing, Customer agrees and acknowledges that in no event shall any Dusty personnel be an Equipment Operator or otherwise operate the Equipment on a Project.

2.3. Title to Equipment. Dusty has and will retain title to the Equipment at all times. Customer acquires no ownership, title, property, right, equity, or interest in the Equipment other than the limited use as set forth in this Agreement and each Work Order.

2.4. Risk of Loss. During the Equipment Use Term for a Unit of Equipment, Customer shall bear all risk of loss, damage, destruction, theft, taking, confiscation, or requisition, partial or complete, of or to such Unit of Equipment or its use, however caused or occasioned, including, without limitation, any use of the Equipment outside of the intended use or otherwise beyond the scope of the authorization granted under this Agreement (“Equipment Loss”), as follows:

(a) Dusty shall review the severity and scope of the Equipment Loss and shall, within a reasonable time (not to exceed thirty (30) days), provide Customer with a determination of the extent and scope of an Equipment Loss and whether or not the Equipment Loss has materially impaired the Unit of Equipment affected or its use. Dusty shall also provide Customer with an invoice for the Equipment Loss Payment pursuant to Sections (b) or (c) below.

(b) If Dusty determines in its sole discretion that an Equipment Loss has materially impaired the Unit of Equipment affected or its use, then: (i) Customer shall pay, within fifteen (15) days of Notice by Dusty of such determination, the following amounts (collectively, “Equipment Loss Payment”): (A) all Fees and other amounts due prior to the receipt of such Notice with respect to such Unit of Equipment; plus (B) the Stipulated Loss Value of the Unit of Equipment determined in accordance with the applicable Work Order; (ii) this Agreement and the applicable Work Order shall continue as though no Equipment Loss had occurred..

(c) If Dusty determines in its sole discretion that an Equipment Loss has not materially impaired the Unit of Equipment affected or its use: (i) this Agreement and the applicable Work Order shall continue with respect to such Unit of Equipment as though no Equipment Loss had occurred; and (ii) Customer shall promptly reimburse Dusty for all costs to repair or cause to be repaired such Unit of Equipment to the condition in which such Unit of Equipment is required to be maintained hereunder and under the applicable Work Order, and, for the avoidance of doubt, there shall be no abatement of Fees or Fee credit for any period in which a Unit of Equipment is in a shop or otherwise out of operation in connection with any such repairs.

2.5. Ancillary Items. Subject to the terms and conditions of this Agreement, Customer shall purchase all ancillary items associated with and required for the operation of any Unit of Equipment or the use of any Dusty Materials in any manner, including ink cartridges, exclusively from Dusty at the prices set forth in the Work Order or, if not so specified, Dusty’s then-current standard pricing.

2.6. Use by Affiliates. Customer’s Affiliates may execute Work Orders under this Agreement. Each Work Order shall be deemed, upon its execution, to incorporate the terms and conditions of this Agreement.
No Exclusivity. Dusty retains the right to provide the same or similar Dusty Materials for third parties during and after the Term of this Agreement.

2.7. Dusty Policies. The Dusty Policies are hereby incorporated into this Agreement as if fully set forth herein. Customer shall inform Equipment Operators of the Dusty Policies and shall obtain any consent necessary from the Equipment Operators for Dusty’s use of any information about the Equipment Operators or their use of the Dusty Materials.

3. RESTRICTIONS ON USE OF DUSTY MATERIALS.

3.1. Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Dusty Materials (including any Unit of Equipment) except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, and shall not allow another Person, except as this Agreement expressly permits or as otherwise expressly permitted by Dusty in writing:

(a) copy, modify, or create derivative works or improvements of any Dusty Materials;

(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Dusty Materials to any other Person;

(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the mechanical structure, mechanical operations, materials of manufacture or fabrication, source code, object code, or underlying structure, ideas, know-how, or algorithms of any Dusty Materials, in whole or in part;

(d) bypass or breach any security device or protection used by any Dusty Materials or access or use any Dusty Materials other than by an Equipment Operator;

(e) input, upload, transmit, or otherwise provide to or through any Dusty Materials, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;

(f) intentionally damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner any Dusty Materials, or Dusty’s provision of any Dusty Materials to any third-party, in whole or in part;

(g) remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Dusty Materials;

(h) access or use any Dusty Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third-party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Dusty customer), or that violates any applicable Law;

(i) access or use any Dusty Materials for purposes of competitive analysis of the Dusty Materials or any portion thereof, the development, provision, or use of a competing service or product or any other purpose that is to Dusty’s detriment or commercial disadvantage;

(j) place any marking on any Dusty Materials except with the prior written consent of Dusty. Any such marking placed on any Dusty Materials by Customer or another Person shall be removed at Customer’s expense on or before the expiration of the applicable Equipment Use Term. Customer shall, at Customer’s expense and to Dusty’s satisfaction, place and maintain on each of the Dusty Materials any identifying marks required by Dusty; or

(k) otherwise access or use any Dusty Materials beyond the scope of the authorization granted under this Agreement or otherwise beyond the reasonable contemplation of the Parties given the intended use of the Dusty Materials.

3.2. Equipment Location. Customer shall not, and shall not permit any other Person to, operate or transport the Equipment to any location outside of the United States. Customer shall operate such Unit of Equipment exclusively for such Project at the Location specified in the applicable Work Order.

4. CUSTOMER OBLIGATIONS.

4.1. Safety Requirements. The Customer is and shall remain solely responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with its use of the Equipment hereunder. The Customer shall develop and implement safety protocols as necessary to provide protection to prevent damage, injury, or loss to Persons (including Equipment Operators), property, and the Equipment. Customer is solely responsible for damage to the Equipment, damage to property below the working surface, and/or injuries to Persons (including Equipment Operators) at any Customer premises or location where the Equipment is used or stored that arise from or are related to any failure to adopt appropriate safety precautions and programs.

4.2. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Equipment Operator in connection with the use of the Equipment; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services; (d) all access to and use of the Equipment while in Customer’s or any Equipment Operator’s possession, custody, or control, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions or omissions based on, such access or use; and (e) all conclusions, decisions, and actions or omissions arising from or related to the use of the Dusty Services.

5. DUSTY’S OBLIGATIONS.

5.1. Updates. Dusty may, but is not required to, make available to Customer any Updates to the Equipment or other Dusty Materials. To the extent such Updates are made available to Customer, Customer will promptly incorporate the Updates into the Equipment and/or other Dusty Materials or return such Equipment or other Dusty Materials for Dusty to incorporate the Updates and provide Customer with updated or replacement Equipment or other Dusty Materials.

5.2. Support and Maintenance. Subject to and conditioned on Customer’s and its Equipment Operators’ compliance with the terms and conditions of this Agreement and the applicable Work Order, during the applicable Equipment Use Term, Dusty will provide to Customer the technical support and maintenance services concerning the Units of Equipment identified in the applicable Work Order as set forth in Exhibit B. Notwithstanding the provisions of this Section 5.2, Dusty shall have no obligation to provide technical support for: (a) altered or damaged Units of Equipment; (b) Units of Equipment that has been modified without consent by Dusty; (c) Units of Equipment that has been damaged as a result of Customer’s or an Equipment Operator’s negligence, and such Units of Equipment may be considered an Equipment Loss and subject to the provisions of Section 2.5.

5.3. Prohibited Data. Customer acknowledges that the Dusty Portal Services are not designed with security and access management for Processing the following categories of information: (a) data that is classified and or used on the U.S. Munitions list, including software and technical data; (b) articles, services, and related technical data designated as defense articles or defense services; and (c) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, “Prohibited Data”). Customer shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Dusty Portal Materials or any Dusty Personnel. Customer is solely responsible for reviewing all Customer Portal Data and shall ensure that no Customer Portal Data constitutes or contains any Prohibited Data.

6. FEES AND EXPENSES.

6.1. Use Access & Services Access Fee. In consideration of Customer’s access to the Dusty Services, Customer shall pay Dusty during the Term the “Use Access” and “Professional Services Fee,” as set forth in the Work Order.

6.2. Fees. In consideration of Customer’s right to possess and use any Unit of Equipment during the Equipment Use Term of the applicable Work Order, Customer shall pay Dusty the applicable amounts set forth in the applicable Work Order for the Monthly Equipment Fee or Usage Fee (together the “Equipment Fees”), and together with the Use Access and Services Access Fee, the “Fees”). Customer shall pay all Equipment Fees due and owing for each Unit of Equipment as further set forth in the applicable Work Order.

6.3. Invoicing; Payments. Dusty shall issue monthly invoices in advance for all Fees due and owing under this Agreement. Customer shall pay all Fees due and owing under this Agreement or the Work Order upon receipt of an invoice from Dusty. Unless otherwise set forth in this Agreement, all Fees are non-refundable. If applicable, all Pre-Paid Daily Usage or other similar Fees for periodic usage specified in a Work Order are due in advance and are non-refundable, even if Customer does not utilize all Pre-Paid Daily Usage during the Equipment Use Term.

6.4. Late Payment. Except for invoiced payments that the Customer has successfully disputed, if Customer fails to make any payment when due then, in addition to all other remedies that may be available: (a) Dusty may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law; and (b) Customer shall reimburse Dusty for all reasonable costs incurred by Dusty in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.

6.5. Taxes. Customer shall pay, and indemnify and hold Dusty harmless from, all assessments, license fees, and sales, use, property, excise, and other Taxes and charges (other than gross or net income Taxes) imposed on or with respect to: (a) the Equipment or any other Dusty Materials or any Part thereof arising out of or in connection with the shipment, possession, ownership, use, delivery, or operation of the Equipment or any other Dusty Materials; or (b) this Agreement and the Work Order or the consummation of the transactions contemplated herein and therein.

7. INTELLECTUAL PROPERTY RIGHTS.

7.1. Dusty Materials. All right, title, and interest in and to the Dusty Materials and any Updates, including all Intellectual Property Rights therein, are and will remain with Dusty. Customer has no right, license, or authorization with respect to any of the Dusty Materials except as expressly set forth in Section 2, Section 3, or as otherwise set forth in the applicable Work Order, in each case subject to the limitations set forth herein and therein. All other rights in and to the Dusty Materials are expressly reserved by Dusty. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Dusty an assignment of all right, title, and interest in and to the Usage Data, including all Intellectual Property Rights relating thereto.

7.2. Customer Data. As between Customer and Dusty, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data (including any derivative works of the Customer Data as a result of the Dusty Services), including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted herein. Customer hereby grants Dusty a limited, royalty-free, fully paid-up, non-exclusive, non-transferable, and non-sublicensable license to process the Customer Data strictly as necessary for Dusty to perform the Dusty Services or as otherwise set forth in this Agreement.

7.3. Usage Data. Customer acknowledges and agrees that the Equipment may contain technology designed to periodically transmit Usage Data to Dusty. Customer hereby grants to Dusty a perpetual, irrevocable, and fully paid up right, permission, and license in or relating to Customer’s and its Equipment Operators’ use of the Equipment as necessary or useful for Dusty to create Usage Data from Customer’s or its Equipment Operator’s use of each Unit of Equipment including, without limitation, for the following purposes: (a) to debug and identify and repair errors that impair existing intended functionality of the Equipment; (b) to prevent, detect, or investigate incidents involving or related to the Equipment, or protect against malicious, deceptive, fraudulent, or illegal activity; (c) to undertake internal research for technological development and demonstration; and (d) to undertake activities to verify or maintain the quality or safety of any device that is owned, manufactured, manufactured for, or controlled by Dusty, and to improve, upgrade, or enhance the services or devices that are owned, manufactured for, or controlled by Dusty, including the Equipment and Dusty Materials.

7.4. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Dusty by mail, email, telephone, or otherwise, suggesting or recommending changes to the Equipment or other Dusty Materials (“Feedback”), Dusty is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer shall, and hereby does assign to Dusty on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Dusty is free to use, without any attribution or compensation to Customer, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Dusty is not required to use any Feedback.

7.5. Challenges to Dusty’s Ownership. Customer and its Equipment Operators shall not, at any time challenge, or cause, induce, authorize, or assist any Person to challenge, the validity of Dusty’s ownership, use, or registration of, or rights in (including Intellectual Property Rights), the Equipment or any other Dusty Materials.

8. REPRESENTATIONS, WARRANTIES, AND COVENANTS.

8.1. Mutual Representations and Warranties. Each Party represents, warrants, and covenants to the other Party that: (a) it is a duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has, and throughout the Term will retain, the full right, power, and authority to enter into this Agreement and perform its obligations hereunder; (c) the execution of this Agreement by its Representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and (d) when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; (e) the execution, delivery and performance of this Agreement by the Party will not violate, conflict with, require consent under or result in any breach or default under any of the provisions of any contract or agreement to which it is a party; and (f) the execution, delivery and performance of this Agreement by the Party will not violate any Law applicable to such Party.

8.2. Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Dusty that:

(a) Customer and its Equipment Operators shall obtain all necessary Permits associated with the results of the Dusty Services, including any approvals from licensed architects and Governmental Authorities;

(b) Customer and its Equipment Operators shall obtain and maintain all Permits necessary to conduct that portion of its business relating to the exercise of its rights and the performance of its obligations under this Agreement, including those necessary to use each Unit of Equipment in the manner contemplated under this Agreement and the applicable Work Order and to operate at the Location and/or Project specified in the applicable Work Order, if any;

(c) all Permits required for Customer or any Equipment Operator to conduct Customer’s business and to use the Equipment have been or will be obtained by Customer and its Equipment Operators and are or will be valid and in full force and effect, and all fees and charges with respect to such Permits as of the date hereof have been paid in full;

(d) no event has occurred that, with or without notice or lapse of time or both, would reasonably be expected to result in the revocation, suspension, lapse, or limitation of any necessary Permit;

(e) Customer shall keep the Equipment free and clear of any and all mortgages, pledges, hypothecations, assignments (as security), deposit arrangements, encumbrances, liens (statutory or other), charges, or other security interests, or any preferences, priorities, or other security agreements or preferential arrangements of any kind or nature whatsoever having substantially the same economic effect as any of the foregoing;

(f) any Equipment Operator (whether employees, contractors, agents, or other personnel of Customer) will: (i) have the required skill, experience, and qualifications to understand and use the Equipment and understand and perform their obligations under this Agreement; (ii) be capable of filling such position safely and efficiently, (iii) understand and perform, all aspects of their training by Dusty in a professional and workmanlike manner in accordance with best industry standards; and (iv) be qualified and fully trained as a permitted Equipment Operator as specified in Section 2.2 above;

(g) Customer and each Equipment Operator shall use the Equipment in a professional and workmanlike manner in accordance with best industry standards and in a manner that complies in all material respects with this Agreement, the Work Order, and any applicable Documentation;

(h) Customer shall not, and shall ensure that its Equipment Operators do not, use the Dusty Materials, in whole or in part, for or as part of any illegal, harmful, fraudulent, or infringing activity, or otherwise in a manner that violates any applicable Laws or this Agreement;

(i) Customer shall not directly or indirectly engage in any unfair, unethical, misleading, or deceptive acts or practices that are or might be detrimental to the public or the goodwill or reputation of Dusty or any Dusty Materials, including any dissemination, display or use of any false, misleading, or deceptive representations, depictions, or materials for or in collection with any use of the Dusty Materials; and

(j) on behalf of itself and Dusty, Customer has and shall continue to provide all such necessary third-party notices and disclosures and has and shall secure such necessary consents as required by applicable Laws concerning any materials, content or the Customer Data provided, or made available to Dusty, as contemplated under this Agreement.

8.3. Additional Dusty Representations, Warranties, and Covenants. Dusty represents, warrants, and covenants to Customer that the Equipment shall be provided to Customer free of material defects, shall operate in all material respects and conformance with all applicable specifications and operation instructions, including the Equipment’s configuration to applicable firmware and software, for a period of one year after the Equipment Use Commencement Date, and shall be accompanied with the necessary tools, manuals, and components necessary for maintenance, care and operation of the Equipment. Notwithstanding the foregoing, the foregoing representation and warranty set forth in this Section 8.3 will not apply in the event Customer violates Section 8.2.

8.4. DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE EQUIPMENT, DUSTY SERVICES, AND THE DUSTY MATERIALS ARE PROVIDED BY DUSTY IS PROVIDED “AS IS” AND DUSTY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF, AND DUSTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, DUSTY MAKES NO WARRANTY OF ANY KIND THAT ANY EQUIPMENT, DUSTY SERVICES, DUSTY MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES (EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE WORK ORDER OR ANY DOCUMENTATION FOR THE EQUIPMENT), OR BE SECURE, ACCURATE, COMPLETE OF HARMFUL CODE, OR ERROR FREE.
9. INDEMNIFICATION.

9.1. General Indemnification. Subject to Section 9.6, each Party (the “Indemnifying Party”) shall defend, indemnify and hold harmless the other Party and each of the other Party’s Affiliates, and their respective officers, directors, employees, agents, contractors, licensors, suppliers, permitted successors, and permitted assigns (each of the foregoing, an “Indemnified Party”) from and against any and all Damages incurred by the Indemnified Party arising out of or relating to any Action brought by a third-party (other than an Affiliate of the Indemnified Party) to the extent that such Damages do or are alleged to arise out of or result from: (a) the Indemnifying Party’s material breach of any representation, warranty, covenant or obligation of the Indemnifying Party under this Agreement or any Work Order; (b) any gross negligence or more culpable act or omission (including recklessness or willful misconduct) in connection with the use of the Equipment or other Dusty Materials under this Agreement; (c) bodily injury, death of any individual, or damage to real or tangible personal property resulting from the willful, fraudulent, or negligent or more culpable acts or omissions (including recklessness or willful misconduct) of the Indemnifying Party; (d) Damages arising from or relating to the Indemnifying Party’s violation of Law.
9.2. Infringement Indemnification by Dusty. Subject to Section 9.6, Dusty shall indemnify, defend and hold Customer harmless from and against all Damages arising out of or resulting from any Action by a third-party (other than an Affiliate of the Customer) to the extent that such Damages do or are alleged to arise out of or result from a claim that the Equipment or other Dusty Materials, or Customer’s or any Equipment Operator’s use thereof, actually does or threatens to infringe, misappropriate or otherwise violate any United States Intellectual Property Right or other right of a third-party, provided, however, that Dusty shall have no liability or obligation for any Action or Damages to the extent that such Action or Damages arise out of or results from any:

(a) alteration or modification of the Equipment or other Dusty Materials without Dusty’s authorization;

(b) use of the Equipment or other Dusty Materials by Customer or an Equipment Operator pursuant to this Agreement in combination with any apparatus, hardware, software, or service not provided, authorized, or approved by or on behalf of Dusty;

(c) access to or use of the Equipment or other Dusty Materials that is expressly prohibited by this Agreement or otherwise outside the scope of access or manner or purpose of use described or contemplated anywhere in this Agreement, the specifications, or the applicable Work Order;

(d) any Customer Data (including any derivative works created as a result of the Dusty Services) or any instruction, information, designs, specifications, or other materials provided by Customer for use with the Equipment;

(e) material breach of this Agreement by Customer or material noncompliance herewith by any Equipment Operator; or

(f) violation of any applicable Law by Customer or any of its authorized users.
Mitigation. Subject to the exclusions set forth in Section 9.2(a) through Section 9.2(f), if the Equipment or other Dusty Materials or any component or feature thereof is ruled to infringe or otherwise violate the rights of any third-party by any court of competent jurisdiction, or if any use of the Dusty Materials or any component thereof is threatened to be enjoined, or in Dusty’s reasonable opinion, is likely to be enjoined or otherwise the subject of an infringement or misappropriation claim, Dusty shall, at Dusty’s sole cost and expense: (a) procure for Customer the right to continue to access and use the Equipment and other Dusty Materials as materially contemplated by this Agreement and the applicable Work Order; or

(b) modify or replace all components, features and operations of the Equipment and/or other Dusty Materials that infringe or are alleged to infringe (“Allegedly Infringing Features”) to make the Dusty Materials non-infringing, which modified and replacement services shall constitute Equipment and be subject to the terms and conditions of this Agreement. If neither of the foregoing remedies are reasonable, then Dusty may, by Notice to Customer, direct Customer and its Equipment Operators to cease any and all use of the Allegedly Infringing Features, including to return such Equipment in accordance with Section 12.

9.4. SOLE REMEDIES. SECTION 9.2 AND SECTION 9.3 SETS FORTH CUSTOMER’S SOLE REMEDIES AND DUSTY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE EQUIPMENT OR OTHER DUSTY MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD-PARTY.

9.5. Customer Indemnification. Subject to Section 9.6, Customer shall indemnify, defend and hold Dusty harmless from and against all Damages arising out of or resulting from any Action by a third-party (other than an Affiliate of the Dusty) to the extent that such Damages do or are alleged to arise out of or result from: (a) Customer Data (including any modifications to the Customer Data as a result of the Dusty Services); or (b) any act, omission, or other matter described in subclause (a) through subclause (f) of Section 9.2, whether or not the same results in any Action against or Damages by Dusty.

9.6. Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in this Agreement, Indemnifying Party is not obligated to indemnify, hold harmless, or defend Indemnified Party against any claim (whether direct or indirect) to the proportional extent such claim or corresponding Damages arise out of or result from, in whole or in part, the Indemnified Party’s: (a) negligence or more culpable act or omission (including recklessness or willful misconduct); or (b) bad faith failure to materially comply with any of its material obligations set forth in this Agreement; or (c) in the case of Customer as the Indemnified Party, any failure of the Equipment caused by Customer.

10. LIMITATION OF LIABILITY.

10.1. NO CONSEQUENTIAL OR INDIRECT DAMAGES. IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS REPRESENTATIVES BE LIABLE UNDER THIS AGREEMENT OR ANY WORK ORDER TO THE OTHER PARTY OR ANY THIRD-PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT OR ANY WORK ORDER, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

10.2. CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.3, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY WORK ORDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO DUSTY PURSUANT TO THE APPLICABLE WORK ORDER IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10.3. Exceptions. The exclusions and limitations in Section 10.2 will not apply to: (a) Damages arising out of or relating to a material breach of Section 7; (b) a Party’s indemnification obligations hereunder; (c) Damages arising out of or relating to a Party’s gross negligence or more culpable conduct, including any willful misconduct or intentional wrongful acts; (d) Damages for death, bodily injury or damage to real or tangible personal property arising out of or relating to a Party’s negligent or more culpable acts or omissions; (e) Damages to the extent covered by a Party’s insurance; (f) Damages arising from or relating to a Party’s violation of Law; and (g) a Party’s obligation to pay attorneys’ fees and court costs in accordance with this Agreement. Notwithstanding the foregoing, in no event will Dusty have any liability whatsoever for any results obtained from, and all conclusions, decisions, and actions based on, the use of the Dusty Services.

11. TERM AND TERMINATION.

11.1. Term. The initial term of this Agreement (the “Initial Term”) commences on the Effective Date and continues for a period of either (i) one (1) year if the Annual Access Fee option is selected in the Work Order or (ii) one (1) quarter if the Quarterly Access Fee option is selected in the Work Order, unless and until sooner terminated as expressly provided therein. Upon the expiration of the Initial Term, this Agreement shall automatically renew for successive addition terms equal to the duration of the Initial Term unless either Party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current Term, if annual, or at least thirty (30) days prior to the end of the then-current term, if quarterly, (each, a “Renewal Term” and together with the Initial Term, the “Term”), or unless sooner terminated as provided herein. If the Term is renewed for any such Renewal Term or successive Renewal Terms, the terms and conditions of this Agreement during each such Renewal Term shall be the same as the terms and conditions in effect immediately prior to such renewal. If either Party provides timely notice of its intent not to renew this Agreement, then: (a) if the expiration of any then-current Work Order extends past the normal expiration of the then-current Term, the then-current Term shall be extended until the expiration or termination of the last then-current Work Order; and (b) Customer may not execute any further Work Orders after notification of the intent not to renew this Agreement and, unless sooner terminated in accordance with its terms, this Agreement shall terminate on the expiration the then-current Term.

11.2. Equipment Use Term. The term of any Work Order with respect to any Unit of Equipment (the “Equipment Use Term”) shall commence on the Equipment Use Commencement Date and, unless sooner terminated under this Agreement or the applicable Work Order, shall continue until the date or conclusion of the period set forth in the Work Order or the date all Equipment under the applicable Work Order is returned to and accepted by Dusty in the condition required as set forth herein and in the applicable Work Order, whichever is later. Notwithstanding anything to the contrary, except for a return of a Unit of Equipment as a result of Customer’s termination of this Agreement pursuant to Section 11.3 or 11.5, or as a result of Dusty’s termination pursuant to Section 11.4, in the event Customer returns a Unit of Equipment prior to the Equipment Use Expiration Date, all remaining Equipment Fees for such Unit of Equipment between the actual return date until the original Equipment Use Expiration Date will immediately become due and payable and Customer shall pay to Dusty all such remaining Equipment Fees.

11.3. Termination for Cause. In addition to any right of termination set forth elsewhere in this Agreement, either Party may terminate this Agreement or any Work Order, by Notice to the other Party effective as of the date specified in such Notice, if the other Party materially breaches this Agreement or such Work Order and such breach either: (a) cannot be cured; or

(b) being capable of cure, remains uncured thirty (30) days after the breaching Party receives Notice thereof. In addition to any other right of termination set forth elsewhere in this Agreement, Dusty may terminate this Agreement by Notice to Customer if Customer fails to pay any amount when due hereunder and such failure continues for fifteen (15) days after Customer’s receipt of Notice of nonpayment.

11.4. Termination for Convenience. Dusty may, in its sole discretion, terminate this Agreement at any time, without cause and without causing any breach or incurring any additional obligation, liability, or penalty, by providing at least thirty (30) days’ prior Notice to Customer.

11.5. Termination for Bankruptcy. Either Party may terminate any and all of this Agreement or any Work Order, effective immediately, by Notice to the other Party if the other Party: (a) is dissolved or liquidated or takes any corporate action for such purpose; (b) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (c) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, if such proceeding is not fully stayed within seven (7) Business Days or is not dismissed or vacated within forty-five (45) days after filing; (d) makes or seeks to make a general assignment for the benefit of its creditors; or (e) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

11.6. Effect of Termination. Except for a termination for non-renewal as set forth in Section 11.1, the termination of this Agreement pursuant to Sections 11.3, 11.4, or 11.5 will immediately effectuate a termination of all Work Orders then in effect. In addition, unless otherwise expressly provided in this Agreement or the applicable Work Order, upon and after the termination or expiration of this Agreement or one or more Work Order for any or no reason:

(a) subject to the continuing rights, licenses, and obligations of either Party under this Agreement, including this this Section 11.6, or any Work Order, all rights and licenses granted hereunder will immediately terminate and the respective Parties shall cease all activities concerning, including all use of, in the case of Customer, the Units of Equipment related to the terminated or expired Work Order;

(b) Customer shall pay to Dusty all undisputed charges and amounts due and payable to Dusty, if any, for any use of any Equipment actually provided under the terminated or expired Work Order;

(c) Customer shall, at its sole expense and risk, promptly following the expiration or earlier termination of this Agreement or the Equipment Use Term of such Work Order for any Unit of Equipment used pursuant to it, return such Unit of Equipment to a return location that shall be designated by Dusty in its sole discretion, in each case subject to the terms and conditions set forth in Section 12.
Survival. The provisions set forth in the following Sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: this Section 11.7 and Sections 2, 3, 4, 6.2, 6.3, 6.4, 6.5, 7, 8.4, 9, 10, 12, 13, 14, 15, and 16.

12. RETURN OF EQUIPMENT.

12.1. Condition of Equipment on Return. Customer shall cause any Unit of Equipment returned under this Agreement and any Work Order to be in: (a) as good condition as when delivered to Customer and complete with all Parts, ordinary wear and tear excepted, including without limitation the removal of any marks that Customer is permitted to apply to the Equipment under the applicable Work Order; (b) compliance with applicable Law.

12.2. Holdover. If upon the expiration or earlier termination of the Equipment Use Term of a Work Order for a Unit of Equipment used under it, Customer does not promptly return such Unit of Equipment to Dusty in the condition required by and otherwise in accordance with the terms and conditions of this Section 12 and such Work Order, Customer shall continue to comply with all the terms and conditions of this Agreement and such Work Order with respect to such Unit of Equipment. In such an event and unless otherwise set forth in the applicable Work Order, Dusty may, in its discretion, charge Customer Fees at ten thousand dollars ($10,000) for each day from the expiration or earlier termination of the Equipment Use Term until the date on which Customer returns such Unit of Equipment to Dusty in the manner required under this Section 12 and the applicable Work Order (“Holdover Fees”). Nothing contained in this Section, including Customer’s payment of Holdover Fees, shall (a) constitute a waiver of Customer’s failure to perform any obligation under this Agreement or any Work Order; or (b) give Customer the right to retain possession of any Unit of Equipment after the expiration or earlier termination of the Equipment Use Term of the applicable Work Order with respect to such Unit of Equipment.

13. INSURANCE REQUIREMENTS.

13.1. Required Coverage. At all times during the Term and for a period of two (2) years thereafter, Customer shall procure and maintain, at its sole cost and expense, all insurance coverage required by applicable Law, and in any event insurance coverage in the following types and amounts:

(a) Equipment insurance against loss, theft, and damage (“Property Insurance”) in an insured amount at least the greater of the Stipulated Loss Value or full replacement value of such Unit of Equipment;

(b) Commercial General Liability insurance with limits no less than US $1,000,000 per occurrence and US $2,000,000 in the aggregate for all claims each policy year, including bodily injury and property damage and products and completed operations and advertising liability, which policy will include contractual liability coverage insuring the activities of Dusty under this Agreement;

(c) Worker’s Compensation and Employers’ Liability insurance with limits no less than the greater of: (i) $1,000,000 per occurrence and US $2,000,000 in the aggregate for all claims each policy year; or (ii) the minimum amount required by applicable Law each accident, including occupational disease coverage; and

(d) Errors and Omissions/Professional Liability with limits no less than US $1,000,000 per occurrence and US $2,000,000 in the aggregate for all claims each policy year.

13.2. Policy Terms. All insurance policies required pursuant to this Section 13 shall:

(a) be issued by insurance companies reasonably acceptable to Dusty and with a Best’s Rating of no less than A-VII;

(b) provide that such insurance carriers give Dusty at least thirty (30) days’ prior Notice of any cancellation or non-renewal of, or material change in, the coverage, scope, or amount of such policy and, prior to any such cancellation, non-renewal or material change in coverage, Customer shall have new insurance policies in place that meet the requirements of this Section 13;

(c) waive any right of subrogation of the insurers against Dusty or any of its Affiliates;

(d) provide that such insurance be primary insurance and any similar insurance in the name of and/or for the benefit of Dusty shall be excess and non-contributory; and

(e) except for the insurance provided in subclause (c) and subclause (d) of Section 13.1, name Dusty and Dusty’s Affiliates, including, in each case, all successors and permitted assigns, as additional insureds.

13.3. Coverage. To the extent any insurance coverage required under this Section 13 is purchased on a “claims-made” basis, such insurance shall cover all prior acts of Customer during the Term and any additional periods during which Customer uses the Equipment, and such insurance shall be continuously maintained until at least four (4) years beyond the expiration or termination of the Term, or Customer shall purchase “tail” coverage, effective upon termination of any such policy or upon termination or expiration of the Term, to provide coverage for at least four (4) years from the occurrence of either such event.

13.4. Certificates of Insurance. Upon Dusty’s written request, Customer shall provide Dusty with copies of the certificates of insurance and policy endorsements for all insurance coverage required by this Section 13. Customer shall not do anything to invalidate such insurance. Customer shall give 30 days’ prior Notice to Dusty of any cancellation, non-renewal or material change in coverage, scope, or amount of any insurance policy required by or affecting Dusty’s rights or remedies under this Agreement.

13.5. Non-waiver. This Section 13 is not intended to and shall not be construed in any manner as waiving, restricting, or limiting the liability of either Party for any obligations under this Agreement (including any provisions hereof requiring a Party to indemnify, defend and hold harmless the other Party).

14. EXPORT REGULATIONS. The Equipment and other Dusty Materials may be subject to United States export control Laws, including the Export Control Reform Act audits associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Equipment or other Dusty Materials to, or make the Equipment or other Dusty Materials accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by Law. Customer certifies that neither it nor any Affiliate, nor any of their respective officers, directors is a Person who: (i) is the target of any Laws administered by the United States Department of the Treasury’s Office of Foreign Asset Control (“OFAC”) or any other Governmental Authority imposing economic sanctions or trade embargoes (“Economic Sanctions Laws”); or (ii) is located, organized, or resident in a country or territory that is, or whose government is, the target of sanctions imposed by OFAC or any other Governmental Authority.

15. MISCELLANEOUS.

15.1. Relationship of Parties. Nothing herein creates a joint venture or partnership between the Parties to this Agreement or any Work Order or an employee/employer relationship. Customer has no express or implied right or authority to assume or create any obligations on behalf of or in the name of Dusty or to bind Dusty to any contract, agreement, or undertaking with any third-party.

15.2. Further Assurances. Customer agrees to execute, acknowledge, deliver, file, and record, or cause to be executed, acknowledged, delivered, filed, and recorded, such further documents or other papers and to do all such things and acts as Dusty may reasonably request in furtherance of the provisions and purposes of this Agreement and any Work Order and the transactions contemplated hereby and thereby.

15.3. Public Announcements. Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Dusty may, without Customer’s consent, include Customer’s name and other indicia in its lists of Dusty’s current or former customers of Dusty in promotional and marketing materials, including on Dusty’s website and social media.

15.4. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and will be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient; or (d) on the third (3rd) day after the date mailed, by certified or registered mail (in each case, return receipt requested, postage pre-paid). Notwithstanding the foregoing, day-to-day communications and notifications under this Agreement (excluding notices of default, renewal, termination, and indemnification) may be made through other reliable means, including through email.
Notices must be sent to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a Notice given in accordance with this this Section 15.4):

If to Dusty:
Dusty Robotics, Inc.
909 San Rafael Avenue
Mountain View, CA 94041
Email:  legal@dustyrobotics.com
Attention: Tessa Lau
With a copy to:
Foley & Lardner LLP
11988 El Camino Real, Suite 400
San Diego, CA 92130
Email: bmorris@foley.com
Attention: Benjamin J. Morris
If to Customer:
See Work Order

15.5. Interpretation. For purposes of this Agreement and the Work Order, (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation;” (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole or to the applicable Work Order, as the case may be. Unless the context otherwise requires, references in this Agreement or any Work Order: (x) to sections, schedules, and exhibits mean the sections of, and schedules and exhibits attached to, this Agreement or the applicable Work Order, as the case may be; (y) to an agreement, instrument, or other document mean such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute mean such statute as amended from time to time and include any successor legislation thereto and any regulations promulgated thereunder. The Parties draft this Agreement and the Work Order without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The schedules and exhibits referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein and the schedules and exhibits referred to in any Work Order are an integral part of such Work Order to the same extent as if they were set forth therein.

15.6. Headings. The headings in this Agreement and the Work Order are for reference only and shall not affect the interpretation of this Agreement or the Work Order.

15.7. Severability. If any term or provision of this Agreement or any Work Order is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Agreement or such Work Order or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties to this Agreement and the Work Order shall negotiate in good faith to modify this Agreement or the applicable Work Order so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby and thereby be consummated as originally contemplated to the greatest extent possible.

15.8. Entire Agreement. This Agreement, together with the Work Orders, all related exhibits and schedules, and all other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties hereto and thereto with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

15.9. Order of Precedence. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments, appendices, Work Orders, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, the Work Order; (b) second, this Agreement, excluding its exhibits, schedules, attachments, and appendices other than Work Orders; (c) third, the exhibits, schedules, attachments, and appendices to this Agreement as of the Effective Date (other than the Work Orders); and (d) fourth, any other documents incorporated herein by reference.

15.10. Amendment and Modification. No amendment to or rescission, termination, or discharge of this Agreement or any Work Order is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement or such Work Order and signed by each Party to this Agreement and the applicable Work Order.

15.11. Waiver. No waiver by any Party of any of the provisions of this Agreement or any Work Order is effective unless explicitly set forth in writing, identified as a waiver under this Agreement or such Work Order, and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

15.12. Cumulative Remedies. All rights and remedies of each Party provided in this Agreement and the Work Order are cumulative and not exclusive, and the exercise by such Party of any right or remedy does not preclude the exercise by such Party of any other rights or remedies that may now or subsequently be available to such Party at law, in equity, by statute, in any other agreement between the Parties, or otherwise.

15.13. Equitable Remedies. Customer acknowledges that a breach or threatened breach by Customer of any of its obligations under this Agreement or any Work Order would give rise to irreparable harm to Dusty for which monetary Damages would not be an adequate remedy and hereby agrees that in the event of a breach or a threatened breach by Customer of any such obligations, Dusty will, in addition to any and all other rights and remedies that may be available to Dusty in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).

15.14. Assignment. Customer may not assign any of its rights or delegate any of its obligations under this Agreement or any Work Order without the prior written consent of Dusty. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.

15.15. Successors and Assigns. This Agreement and the Work Order are binding on and inure to the benefit of the Parties hereto and thereto and their respective permitted successors and permitted assigns.

15.16. No Third-Party Beneficiaries. This Agreement and the Work Order benefit solely the Parties hereto and thereto and their respective permitted successors and permitted assigns and nothing in this Agreement or the Work Order, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason hereof or thereof.

15.17. Mediation. Except for any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”) related to a Party’s Intellectual Property Rights (which shall be litigated in accordance with Section 15.19), the Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between the executives of each Party (or such other Person designated by such Party in writing with the authority to settle the Dispute). If the Parties are unable to resolve the Dispute after good faith negotiations, the Parties shall submit the Dispute to the American Arbitration Association under its Commercial Mediation Procedures, or any mutually agreed to mediation service for mediation. The Parties shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within thirty (30) days after the completion of the good faith negotiations, either Party may file suit in a court of competent jurisdiction in accordance with the provisions of Section 15.19.

15.18. Choice of Law. This Agreement and all Work Order and exhibits attached hereto and thereto, and all matters arising out of or relating hereto and thereto, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the Laws of the State of California, United States of America (including its statutes of limitations), without regard to the conflict of laws or provisions thereof to the extent such principles or rules would require or permit the application of the Laws of any jurisdiction other than those of the State of California.
Choice of Forum. Subject to Section 15.17, each Party irrevocably and unconditionally agrees that it will not commence any Action of any kind whatsoever against the other Party in any way arising from or relating to this Agreement or any Work Order or exhibits attached hereto or thereto, or any contemplated transaction, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the U.S. District Court for the Northern District of California located in San Francisco, California or, if such court does not have subject matter jurisdiction,] the courts of the State of California sitting in San Francisco, California, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. Each Party agrees that a final judgment in any such Action is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.

15.20. Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control that begin after the Effective Date and which it could not have mitigated, avoided, or prevented the non-performance through the exercise of reasonable care and precautions (a “Force Majeure Event”).

15.21. Counterparts. This Agreement and any Work Order may be executed in counterparts, each of which is deemed an original, but all of which together is deemed to be one and the same agreement. A signed copy of this Agreement or any Work Order delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement or any Work Order.

16. DEFINITIONS.

“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or otherwise, whether at law or in equity.
“Affiliate” means any entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with the Party. For purposes of this definition, the term “control” means the power (or, as applicable, the possession or exercise of the power) to direct, or cause the direction of, the management, governance, or policies of a given entity, directly or indirectly, through any applicable means (whether through the legal, beneficial, or equitable ownership, of more than fifty percent (50%) of the aggregate of all voting or equity interests or securities of such entity, through partnership, or through some other form of ownership interest, by contract, or other applicable legal document, or otherwise).
“Business Day” means any day except Saturday, Sunday, or any other day on which commercial banks located in California are authorized or required by applicable Law to be closed for business.
“Customer Data” means detailed design information in any form or medium, that is downloaded, or otherwise received, directly from Customer or an Equipment Operator by the Equipment. For the avoidance of doubt, Customer Data does not include Usage Data, metadata derived from Customer Data, or any other information reflecting the access or use of the Equipment by or on behalf of Customer or any Equipment Operator.
“Damages” means losses, injury, death, damages, liabilities, claims, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatsoever kind and nature, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification under this Agreement and any Work Order and the cost of pursuing any insurance providers.
“Documentation” means any manuals, instructions, or other documents or materials that the Dusty provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Equipment, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Dusty Materials” means the Equipment (including any applicable Unit of Equipment), Documentation, and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Dusty in connection with the Equipment or otherwise comprise or relate to the Equipment, and any and all Updates. For the avoidance of doubt, Dusty Materials includes Usage Data, but does not include Customer Data.
“Dusty Policies” means Dusty’s privacy notice (https://www.dustyrobotics.com/privacy), terms of service (https://www.dustyrobotics.com/terms-of-use), and other applicable policies that may be posted on Dusty’s website from time to time, or included in or with any Unit of Equipment, and any modifications or updates thereto.
“Equipment” means: (a) the equipment described in the Work Order executed by Dusty and Customer; (b) Parts or components thereof; (c) ancillary equipment or devices furnished under this Agreement and any Work Order; and (d) all Updates thereto, including without limitation all mandatory modifications.
“Equipment Use Commencement Date” means the date specified in each Work Order as the commencement date for the use of each Unit of Equipment to be used for such Work Order.
“Governmental Authority” means any federal, state, local, or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations, or orders of such organization or authority have the force of Law), or any arbitrator, court, or tribunal of competent jurisdiction.
“Intellectual Property Rights” means any and all (a) trade secrets; (b) rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, taglines, corporate names, and domain names, and other similar designations of source, sponsorship, association, or origin, together with the goodwill associated with any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world; (c) copyrights; (d) patents; (e) and any other intangible property in which any Person holds proprietary rights, title, interests, or protections, however arising, pursuant to the Laws any jurisdiction throughout the world, including all applications, registrations, renewals, issues, reissues, extensions, divisions, and continuations in connection with any of the foregoing and the goodwill connected with the use of and symbolized by any of the foregoing.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Location” for any Unit of Equipment means the site of such Unit of Equipment, as may be specified in the applicable Work Order.
“Parts” means all components, parts, replacement parts, instruments, appurtenances, accessories, and other equipment of whatever nature which may now or from time to time be incorporated or installed in or attached to, or which were provided by Dusty with, any Unit of Equipment, including after temporary removal from such Unit of Equipment.
“Permits” means all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances, and similar rights obtained, or required to be obtained, from any Person.
“Person” means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, Governmental Authority, or any other entity.
“Project” for any Unit of Equipment means the specific construction project that such Unit of Equipment is to be used, as may be specified in the applicable Work Order.
“Representative” means, with respect to any Person, any and all directors, officers, managers, members, employees, consultants, financial advisors, counsel, accountants, and other agents of such Person.
“Stipulated Loss Value” for any Unit of Equipment means the amount set forth in corresponding Work Order as of the date of determination.
“Taxes” mean any and all present or future income, stamp, or other taxes, levies, imposts, duties, deductions, charges, fees, or withholdings imposed, levied, withheld, or assessed by any Governmental Authority, together with any interest, additions to tax, or penalties imposed thereon and with respect thereto.
“Unit of Equipment” means an individual piece of Equipment.
“Updates” means any and all updates, upgrades, patches, changes, corrections, bug fixes, enhancements, and other modifications to the Dusty Materials.
“Usage Data” means all information, data, or other content (directly collected or derived) related to Customer’s use of each Unit of Equipment that is collected and used by Dusty related to Customer’s access or use of the Equipment, including to compile usage, statistical, and performance information related to the provision and operation of the Equipment. Usage Data includes, but is not limited to, information contained in usage logs, feature requests, and bug reports, and metadata derived from the Customer Data and the Project, such as Project Location, total square feet, Customer Data file date and time, and other similar information other than detailed design information.
“Work Order” means a Work Order in the form attached as Exhibit A, entered into under Section 2 between Dusty and Customer, incorporating the terms and conditions of this Agreement as if fully set forth therein, to evidence the right to use a Unit of Equipment, as such Work Order may be amended from time to time.

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Dusty Portal License Addendum
This Dusty Portal License Addendum (the “Addendum”) supplements and is subject to the Master Services Agreement entered into between Dusty Robotics, Inc. (“Dusty”) and _________________________ (“Customer”) dated ________________________ (the “MSA”). This Addendum is effective as of the effective date of the MSA when incorporated into the MSA as of the execution thereof or as of the date incorporated into the MSA if incorporated later (the “Addendum Effective Date”). The Parties agree and acknowledge that no conflict is intended, and none will be inferred, from the silence of either the MSA or this Addendum on a given issue.

1. SCOPE OF ADDENDUM.

1.1. Use of Dusty Portal Materials. This Addendum governs the Customer’s use of the Dusty Portal Materials (as defined below), either directly through a web interface or through a mobile application available from standard application download services, such as Google Play® and Apple App Store® (the “Mobile Application”), and is hereby incorporated into and made part of the MSA as if fully set forth therein, and each reference in the MSA to “this Agreement,” “the Agreement,” “hereunder,” “hereof,” “herein” or words of like import, and each reference to the MSA in any other agreements, documents or instruments executed and delivered pursuant to, or in connection with, the MSA (including any Work Order), will mean and be a reference to the MSA as supplemented by this Addendum with respect to the Dusty Portal Materials.  

1.2. Applicability of Certain Definitions to MSA. The Parties agree and acknowledge that: (a) the term “Dusty Materials” as used in the MSA includes the Dusty Portal Materials as defined herein; (b) the term “Usage Data” as used in the MSA includes the Dusty Portal Usage Data as defined herein; and (c) solely for the purposes of access and use to the Dusty Portal Materials, Customer’s Authorized Users will be considered an “Equipment Operator” under the MSA.

2. DUSTY PORTAL SERVICES.

2.1. Access and Use. Notwithstanding any limitations on the time Customer may access and use the Dusty Materials set forth in the MSA but subject to the terms and conditions set forth herein, Dusty hereby grants Customer the right, through its Authorized Users, to access and use the Dusty Portal Materials, either directly through a supported Internet web browser or through the Mobile Application, throughout the Term solely for the Permitted Use. Dusty shall provide to Customer the Access Credentials for at least one Authorized User with Customer administrative privileges within a reasonable time following the Addendum Effective Date. Authorized Users with administrative privileges may create individual accounts for other users, each of which will be deemed an Authorized User under this Addendum. Customer’s and its Authorized Users’ use of the Dusty Portal Materials is subject to the limitations on use set forth in the MSA.

2.2. Service and System Control. Except as otherwise expressly provided in this Addendum, as between the Parties:

(a) Dusty has and will retain sole control over the operation, provision, maintenance, and management of the Dusty Portal Materials; and

(b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Dusty Portal Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Dusty Portal Services or Dusty; (ii) results obtained from any use of the Dusty Portal Materials; and (iii) conclusions, decisions, or actions based on such use.
Notwithstanding anything to the contrary in this Addendum, all Dusty Portal Services, including all Processing of Customer Portal Data by or on behalf of Dusty shall be provided solely from within, and on computers, systems, networks, and other infrastructure located in, the United States.

2.3. Reservation of Rights. Nothing in this Addendum grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to the Dusty Portal Materials or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Dusty Portal Materials and the Third-Party Materials are and will remain with Dusty and the respective rights holders in the Third-Party Materials.

2.4. Dusty Subcontractors. Dusty may from time to time in its discretion engage third-parties to perform Dusty Portal Services (each, and each subcontractor of a subcontractor, a “Dusty Subcontractor”). Dusty shall ensure that each Dusty Subcontractor complies with all relevant terms of this Addendum, including all provisions relating to Customer Portal Data and Personal Information. Dusty shall remain responsible and liable for any and all: (a) performance required hereunder, including the proper supervision, coordination, and performance of the Dusty Portal Services; (b) acts and omissions of each Dusty Subcontractor to the same extent as if such acts or omissions were by Dusty. Any non-compliance by any Dusty Subcontractor with the provisions of this Addendum or any Work Order will constitute a breach by Dusty.

2.5. Suspension or Termination of Dusty Portal Services. Dusty may, directly or indirectly, and by use of any other lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Dusty Portal Materials, without incurring any resulting obligation or liability, if: (a) Dusty receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Dusty to do so; or (b) Dusty believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of the MSA, or accessed or used the Dusty Portal Materials beyond the scope of the rights granted or for a purpose not authorized under the MSA or in any manner that does not comply with any material instruction or requirement of the Dusty Portal Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Dusty Portal Materials; or (iii) this Addendum expires or is terminated. This Section 2.6 does not limit any of Dusty’s other rights or remedies, whether at law, in equity, or under the MSA.

2.6. Support and Maintenance Services. Subject to the terms and conditions of this Addendum and the MSA, during the Term, Dusty shall provide to Customer Dusty’s standard customer support services for the Dusty Portal Services (the “Support Services”) or such other support levels as Customer purchases, when offered. Customer acknowledges and agrees that Dusty may access Customer’s account and may collect, maintain, process, and use information accessible on or through Customer’s account in the course of performing the Support Services, provided that Dusty shall only collect, maintain, process, and use such information that it believes is necessary to assist in providing the Support Services. Dusty may, in its sole discretion, change any aspect of the Support Services upon written notice to Customer, provided, however, that no such change materially reduces the Support Services provided under this Addendum. Notwithstanding the foregoing, Dusty shall have no obligation to provide Support Services relating to any issues that, in whole or in part, arise out of or result from any of the following: (a) any operation or use of, or other activity relating to, the Dusty Portal Services other than as specified in the Dusty Portal Specifications or Dusty Portal Documentation; (b) the use of any technology (including software, hardware, firmware, system, or network) or service not provided by Dusty; (c) any other Third-Party Materials; (d) any negligence, abuse, misapplication, or misuse of the Dusty Portal Services; (e) any breach of or noncompliance with any material provision of this Addendum or the MSA by Customer or any Authorized User.

2.7. Updates and New Versions. During the Term, Dusty will provide Customer with all Updates under the terms and conditions set forth in this Addendum, provided, however, that Customer does not have any right under or in connection with this Addendum to receive any New Versions that Dusty may, in its sole discretion, release from time to time and that Dusty may charge additional fees for any New Versions.

3. CUSTOMER OBLIGATIONS.

3.1. Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Dusty Portal Specifications all Customer Systems on or through which the Dusty Portal Services are accessed or used; and (b) provide all cooperation and assistance as Dusty may reasonably request to enable Dusty to exercise its rights and perform its obligations under and in connection with the MSA. Dusty is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Addendum (each, a “Customer Failure”).

3.2. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by the MSA with respect to Customer’s or its Authorized Users’ access and use of the Dusty Portal Materials, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Dusty Portal Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Dusty of any such actual or threatened activity.

4. SERVICE LEVELS AND CREDITS.

4.1. Service Levels. Subject to the terms and conditions of the MSA, Dusty will use commercially reasonable efforts to make the Dusty Portal Services Available at least [ninety-five percent (95%)] of the time as measured over the course of each calendar month during the Term, excluding unavailability as a result of any of the Exceptions described below in this Section 4.1 (the “Availability Requirement”). “Service Level Failure” means a material failure of the Dusty Portal Services to meet the Availability Requirement. “Available” means the Dusty Portal Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Dusty Portal Specifications. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Dusty Portal Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the Dusty Portal Services that is due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User; (b) Customer Failure; (c) Customer’s or its Authorized User’s Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Dusty pursuant to the MSA; (f) Scheduled Downtime; or (g) disabling, suspension, or termination of the Dusty Portal Services pursuant to Section 2.6. Dusty will use commercially reasonable efforts to: (i) schedule downtime for routine maintenance of the Dusty Portal Services between the hours of 12:00 a.m. and 5:00 a.m., Eastern Time; and (ii) give Customer at least three (3) hours prior notice of all other scheduled outages of the Dusty Portal Services (“Scheduled Downtime”).

4.2. Service Support. Customer’s and its Authorized Users’ right to access the Dusty Portal Services includes Dusty’s standard customer support services in accordance with the Dusty Service support schedule then in effect. Dusty may amend the Dusty Portal Services support schedule from time to time in its sole discretion.

5. SECURITY.

5.1. Dusty Portal Systems and Security Obligations. Dusty will employ security measures in accordance with applicable industry practice. At a minimum, Dusty’s safeguards for the protection of Personal Information shall include: (a) limiting access of Customer Portal Data to its authorized personnel; (b) securing business facilities, data centers, paper files, servers, backup systems, and computing equipment, including, but not limited to, all mobile devices and other equipment with information storage capability; (c) implementing network, application, database, and platform security; (d) securing information transmission, storage, and disposal; (e) implementing authentication and access controls within media, applications, operating systems, and equipment; (f) encrypting Customer Portal Data stored on any media; (g) encrypting Customer Portal Data transmitted over public or wireless networks; (h) logically and/or physically segregating Customer Portal Data from information of Dusty or its other customers so that Customer Portal Data is not commingled with any other types of information; (i) conducting risk assessments, penetration testing, and vulnerability scans and promptly implementing, at Dusty’s sole cost and expense, a corrective action plan to correct any issues that are reported as a result of the testing; (j) implementing appropriate personnel security and integrity procedures and practices, including, but not limited to, conducting background checks consistent with applicable Law; and (k) providing appropriate privacy and information security training to Dusty’s employees.

5.2. Customer Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Dusty Portal Materials; and (b) control the content and use of Customer Portal Data, including the uploading or other provision of Customer Portal Data for Processing by the Dusty Portal Services.

5.3. Prohibited Data. Customer acknowledges that the Dusty Portal Services are not designed with security and access management for Processing the following categories of information: (a) data that is classified and or used on the U.S. Munitions list, including software and technical data; (b) articles, services, and related technical data designated as defense articles or defense services; and (c) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, “Prohibited Data”). Customer shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Dusty Portal Materials or any Dusty Personnel. Customer is solely responsible for reviewing all Customer Portal Data and shall ensure that no Customer Portal Data constitutes or contains any Prohibited Data.

5.4. Customer Control and Responsibility. In addition to Customer’s responsibilities set forth in the MSA related to its and its Equipment Operators’ use of the Equipment and provision of Customer Data (as defined in the MSA), each of which apply to Customer’s and its Authorized Users’ access and use of the Dusty Portal Materials, Customer has and will retain sole responsibility for all provision of Customer Portal Data to the Dusty Portal Services and for all access to and use of the Dusty Portal Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent.

6. FEES AND PAYMENT. The Fees set forth in the MSA is payment in full for Customer’s and its Authorized Users’ access and use of the Dusty Portal Materials.

7. CONSENT TO USE CUSTOMER PORTAL DATA. In addition to rights granted to Dusty with respect to Customer Portal Data and all Intellectual Property Rights related thereto, Customer hereby grants Dusty a royalty-free, fully paid-up, non-exclusive, transferable, sub-licensable, irrevocable license to use the Customer Portal Data for the purpose of training artificial intelligence models and/or machine learning models. Dusty agrees and acknowledges that the Customer Portal Data is the confidential information of Customer and Dusty shall: (a) make commercially reasonable steps to protect and safeguard the confidentiality of the Customer Portal Data; (b) not intentionally use the Customer Portal Data, or permit it to be accessed or used, for any purpose other than as necessary for Dusty to perform under this Addendum; and (c) not intentionally disclose the Customer Portal Data to any other Person, except to Dusty’s Representatives (as defined in the MSA) and Dusty Subcontractors who need to know the Customer Portal Data to assist Dusty, or act on its behalf, and to exercise Dusty’s rights or perform its obligations under this Addendum.

8. REPRESENTATIONS AND WARRANTIES.

8.1. Additional Dusty Representations, Warranties, and Covenants. Dusty represents, warrants, and covenants to Customer that: (a) Dusty will perform the Dusty Portal Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under the MSA; and (b) the Dusty Portal Services will in all material respects conform to and perform in accordance with the Dusty Portal Specifications and all requirements of the MSA.

8.2. Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Dusty that: (a) Customer and each Authorized User shall use the Dusty Portal Materials in a professional and workmanlike manner in accordance with best industry standards and in a manner that complies in all material respects with the MSA, the Work Order, and any applicable Dusty Portal Documentation; (b) each of Customer’s Authorized Users shall not exceed the scope of such Authorized User’s authorization granted by the Customer with respect to their use of the Dusty Portal Materials; (c) Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Portal Data so that, as received by Dusty and Processed in accordance with the MSA, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third-party or violate any applicable Law.

8.3. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 8.1 AND THE MSA, ALL DUSTY PORTAL MATERIALS ARE PROVIDED “AS IS.” DUSTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, DUSTY MAKES NO WARRANTY OF ANY KIND THAT THE DUSTY PORTAL MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER DUSTY PORTAL SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

9. INDEMNIFICATION. The Parties agree and acknowledge that the Dusty Portal Materials are subject to each Party’s indemnification obligations with respect to the Dusty Materials, provided, however, that Dusty shall have no liability or indemnification obligations to the extent that any alleged infringement of the Dusty Portal Materials arises from: (a) any Third-Party Materials; or (b) failure to timely implement any Updates to the Dusty Portal Materials made available to Customer by or on behalf of Dusty.

10. TERM AND TERMINATION. The term of this Addendum (the “Term”) commences as of the Addendum Effective Date and will continue until the expiration or termination of the MSA.

10.1. Effect of Termination or Expiration. In addition to the effects of termination set forth in the MSA and unless otherwise expressly provided in this Addendum or the applicable Work Order, upon any expiration or termination of this Addendum for any reason or no reason:

(a) Dusty shall immediately cease all use of any Customer Portal Data and: (i) promptly return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Portal Data; and (ii) permanently erase all Customer Portal Data from all systems Dusty directly or indirectly controls, provided, however, that, for clarity, Dusty’s obligations under this Section 10.1(a) do not apply to any Dusty Portal Usage Data;

(b) Customer shall immediately cease all use of any Dusty Portal Materials and (i) within ten (10) business days return to Dusty, or at Dusty’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Dusty Portal Materials; and (ii) permanently erase all Dusty Portal Materials from all systems Customer directly or indirectly controls;

(c) notwithstanding the foregoing, Dusty may retain Customer Portal Data and Customer may retain Dusty Portal Materials: (i) that are included in any materials that document a decision to terminate the MSA with the other Party, or otherwise to cease communications with the other Party; (ii) as may be required to comply with the Party’s internal record-keeping policies or any applicable federal, state or local Law or regulatory authority to which it is subject; or (iii) that are maintained as archive copies on the Party’s disaster recovery and/or information technology backup systems. Such copies will be destroyed upon the expiration of the last of the foregoing conditions. The retaining Party shall continue to be bound by the terms and conditions of the MSA regarding any such Customer Portal Data or Dusty Portal Materials retained in accordance with this Section 10.1(c);

(d) Dusty may disable all Customer and Authorized User access to the Dusty Portal Materials;

(e) upon Customer’s written requests at least fifteen (15) calendar days prior to the effective date of expiration or termination, subject to Section 10.1(c), Dusty shall, within fifteen (15) calendar days following such expiration or termination, deliver to Customer the then most recent version of Customer Portal Data maintained by Dusty, provided, however, that Customer has at that time paid all Fees then outstanding and any amounts payable after or as a result of such expiration or termination, including any expenses and fees, on a time and materials basis, for Dusty’s efforts in transferring such Customer Portal Data.

10.2. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the Parties in this Addendum that, by its nature, should survive termination or expiration of this Addendum, will survive any expiration or termination of the MSA: Section 8.3, Section 9, Section 10.1, and this Section 10.2.

11. DEFINITIONS. Capitalized terms used and not defined in this Addendum have the respective meanings assigned to them in the MSA.

“Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Dusty Portal Services.
“Authorized User” means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Dusty Portal Services under the rights granted to Customer pursuant to the MSA; and (b) for whom access to the Dusty Portal Services has been purchased hereunder.
“Customer Portal Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Dusty Portal Services or that incorporates or is derived from the Processing of such information, data, or content by or through the Dusty Portal Services. For the avoidance of doubt, Customer Portal Data does not include Dusty Portal Usage Data, metadata derived from Customer Portal Data, or any other information reflecting the access or use of the Dusty Portal Services by or on behalf of Customer or any Authorized User.
“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
“Dusty Portal Documentation” means any manuals, instructions, or other documents or materials that Dusty provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Dusty Portal Services or Dusty Portal Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Dusty Portal Materials” means the Dusty Portal Services, Dusty Portal Specifications, Dusty Portal Documentation, and Dusty Portal Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Dusty or any Dusty Subcontractor in connection with the Dusty Portal Services or otherwise comprise or relate to the Dusty Portal Services or Dusty Portal Systems. For the avoidance of doubt, Dusty Portal Materials include Dusty Portal Usage Data and any information, data, or other content derived from Dusty’s monitoring of Customer’s access to or use of the Dusty Portal Services, but do not include Customer Portal Data. Without limiting the foregoing, Dusty Portal Materials may include artificial intelligence models and/or machine learning models that are incorporated into the Dusty Portal Services or otherwise in development by or on behalf of Dusty.
“Dusty Portal Services” means the Dusty Portal software-as-a-service offering.
“Dusty Portal Specifications” means the specifications for the Dusty Portal Services set forth in the services or otherwise provided or made available to the Customer for use with the Dusty Portal Services.
“Dusty Portal Systems” means the information technology infrastructure used by or on behalf of Dusty in performing the Dusty Portal Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Dusty or through the use of third-party services.
“Dusty Portal Usage Data” means data and information related to Customer’s use of the Dusty Portal Services that is used by Dusty in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Dusty Portal Services.
"New Version” means any new version of the Dusty Portal Materials that Dusty may from time to time introduce and market generally as a distinct licenses product (or features) (as may be, but not necessarily indicated by Dusty’s designation of a new version number or feature set), which Dusty may make available to Customer at an additional cost under a separate agreement or an additional line item on an applicable Work Order.
“Permitted Use” means any use of the Dusty Portal Services by an Authorized User for the benefit of Customer in the ordinary course of its internal business operations.
“Personal Information” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located. Personal Information includes all “personal information” as defined under the California Consumer Privacy Act, as modified by the California Privacy Rights Act, and all rules and regulations issued under any of the foregoing.
“Process” means to take any action or perform any operation or set of operations that the Dusty Portal Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Dusty Portal Services that are not proprietary to Dusty.
“Updates” means any update, upgrade, release, or other adaption or modification of the Dusty Portal Materials, that Dusty may provide to Customer from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Dusty Materials, but does not include any New Version.

IN WITNESS WHEREOF, the Parties hereto have caused this Master Equipment Use Agreement to be duly executed as of the Effective Date.

1. Description of Services. Dusty will provide the following Support Services during the Subscription Term of each Subscription Schedule executed by the Parties:

(a) Dusty shall provide a commercially reasonable amount of Remote Support to Customer. “Remote Support” means remote connectivity and communication to coordinate, consult, and advise the Customer in the operation of the Equipment and provide general technical support regarding the Equipment by the terms of this Agreement. Furthermore, Dusty shall use commercially reasonable efforts to provide telephone and email support Monday through Friday (Dusty, federal, and state holidays excepted), during the Dusty’s regular business hours of 6 am to 5 pm Pacific.

(b) Dusty shall use commercially reasonable efforts to attend or otherwise address telephone and meeting requests from Customer during the Subscription Term.

(c) If the Equipment fails solely due to product defect or another failure of the Equipment, Customer shall provide prompt written notice to Dusty. Upon request from Dusty, the Customer shall return and/or ship the failed Equipment to Dusty’s premises and Dusty will either, at its sole discretion, (1) make replacement Equipment available for pickup by the Customer at Dusty’s premises or (2) ship replacement Equipment to Customer.

(d) Upon request and reasonable advance notice from Customer, Dusty, at its option, may be available to provide Customer with on-site support at Customer’s site (“On-Site Support”) to facilitate the use of the Equipment and to repair or replace an Item of Equipment as reasonably required. Customer shall be responsible for travel expenses incurred by Dusty in providing On-Site Support, unless Dusty, in its discretion, determines that such On-Site Support is necessary to operate the Equipment and is not due to the fault of the Customer.

(e) All Remote Support and any On-Site Support provided under this Exhibit B shall be provided as part of the Fee specified in the applicable Subscription Schedule.

2. Service Levels and Service Level Credits. Unless Customer has separately negotiated a different level of service levels, Dusty shall respond to and/or resolve all issues with Customer’s use of the Equipment as follows (the “Support Levels”):

Issue__________________________________ Time to resolve or respond
Turnaround time for broken Units of Equipment_____ Three (3) Business Days from Dusty’s receipt of the Unit of Equipment.
Technical support_________________________ Four (4) hours during the next Business Day after Dusty receives a technical support request.
Technical support_________________________ Four (4) hours during the next Business Day after Dusty receives a technical support request.

In the event Dusty fails to achieve the required Support Levels described in this Section 2 of this Exhibit, Dusty shall issue to Customer a credit in the amount of five hundred ($500) for each failure to achieve such Support Levels (“Support Level Credits”), provided, however, that in no event will a Support Level Credit for any calendar month exceed the total Equipment Fees that would be payable for that calendar month if no failure to achieve the Support Levels had occurred.

(3) No Warranties. THE COMPANY DOES NOT MAKE ANY WARRANTIES OF ANY KIND REGARDING THE SERVICES. COMPANY EXPRESSLY DISCLAIMS AND CUSTOMER EXPRESSLY WAIVES ALL OTHER EXPRESS AND IMPLIED WARRANTIES.

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