Client and SmartOS, LLC d/b/a EntryReady (“EntryReady”, “we”, and “us”), agree to each of the following terms:

Section 1. Defined Terms.

Initially capitalized terms shall have the following meanings or the meanings assigned to them in the other Sections of this Master Services Agreement:

1.1. This “Agreement” means this Master Services Agreement, together with the EntryReady Proposal, which, when signed by Client and us, is the Sales Order Form entered into between Client and us; these General Terms & Conditions; the Incorporated Terms (as defined in Section 1.9); and all Schedules attached to the Sales Order Form or this Master Services Agreement, which may include, but not be limited to any related Service Level Agreements (SLAs), Statements of Work (SOWs), Product Terms & Conditions, and all written amendments entered into between Client and us. In the event of any conflict between the terms of this Master Services Agreement and any Sales Order Form, Statement of Work, or Schedule, the terms of such Sales Order Form, Statement of Work, or Schedule shall control with respect to the specific Services addressed therein. In the event of conflict, the following order of precedence applies: (1) an executed Change Order; (2) the applicable SOW; (3) the applicable Sales Order Form; (4) any SLA attached as a Schedule; (5) this MSA ;and then (6) Incorporated Terms (as of the Effective Date, frozen as attached exhibits).

1.2. “Apple Access Platform” means the Apple Inc. platform that utilizes technology owned, controlled, or licensable by Apple Inc. or any of its affiliates to enable users to gain access to or authenticate virtually to use a physical space or controlled service using physical, digital, or virtual access cards, credentials, or account access devices, and to access other related services using Apple Inc. products.

1.3 “Business Day” means Monday through Friday, 8:30 a.m. to 5:30 p.m., United States Eastern Time, excluding any federal public holiday or other day that is an EntryReady holiday.

1.4. “EntryReady Services” means the software platforms and cloud-based services provided by EntryReady, including without limitation EntryReady Server™ (on-premise software), EntryReady Cloud™ (cloud-based access control platform), EntryReady Programmer™ (credential programming services), and EntryReady Mobile Key™ (mobile credential services), as applicable to the Services provided under this Agreement.

1.5. “EntryReady Products” means EntryReady-branded electronic locks, controllers, encoders, programmers, and related access control hardware devices, as well as any firmware, software, or other technology embedded therein.

1.6. “Incorporated Terms” means the following terms and conditions, each of which is incorporated by reference into this Agreement and available at the URLs specified below, as may be updated from time to time: (a) the EntryReady Terms & Conditions of EntryReady Product Sales, available at https://www.entryready.com/legal-stuff/terms-conditions-of-entryready-product-sales/ (the “EntryReady Product Terms”); (b) if applicable, the EntryReady Cloud™, EntryReady Server™, EntryReady Programmer™ Services Terms of Use and License Agreement, available at https://www.entryready.com/legal-stuff/terms-of-use-and-license-agreement-entryready-cloud-entryready-server-and-entryready-programmer; (c) if applicable, the EntryReady Mobile Key™ Services Terms of Use and License Agreement, available at https://www.entryready.com/legal-stuff/entryready-mobile-key-terms-of-use-and-license-agreement; (d) if applicable, the Participating Provider Agreement containing Participating Provider Pass-Through Terms required by Apple Inc., available at https://www.entryready.com/legal-stuff/entryready-mobile-key-participating-provider-pass-through-terms; and (e) if applicable, the Addendum of Terms Apple, Inc. Requires EntryReady to have in its Customer Agreements, available at https://www.entryready.com/legal-stuff/addendum-of-additional-required-terms-for-the-apple-access-platform.

1.7. “PMS” means a property management system or similar third-party software application that may integrate with EntryReady Products or EntryReady Services.
1.8. “Professional Services” means the access control technical support, network and connectivity assistance, onsite support, and product usage training services described in Section 2.1.1 through Section 2.1.4 of this Agreement.

1.9. “Sales Order Form” means an EntryReady Proposal that has been signed by Client and us. Each EntryReady Sales Order Form incorporates this Master Services Agreement by reference, as it may be amended from time to time in accordance with this Agreement.

1.10. “Service” means the Professional Services and any Supplemental Services provided by us to Client pursuant to this Agreement.

1.11. “Service Commencement Date” means the date on which the Client has commenced using any products or services in production for use in connection with the Services and the Services are available for access by Client in accordance with this Agreement, unless the applicable Sales Order Form or Statement of Work specifies a different Service Commencement Date.

1.12. “Service Level Agreement”, also referred to as an “SLA”, means any one (1) of the EntryReady standard Service Level Agreements (SLAs) indicating the types of Services being provided to Client by EntryReady, each of which is incorporated by reference in the Sales Order Form, as it may be amended from time to time by the written agreement of Client and us. If more than one (1) Sales Order Form for a Service exists, then the most recently executed Sales Order Form executed by Client and us is the Service Level Agreement that governs that Service. The applicable forms of Service Level Agreements (SLAs) are attached to this Master Services Agreement as one or more numbered Schedules.

1.13. “Service Request” means a written or electronic request submitted by Client to EntryReady for the performance of Professional Services or Support Services, which shall include a description of the issue or requested service, the applicable service category, and any other information reasonably required by EntryReady.

1.14. “Statement of Work” or “SOW” means a document attached to or incorporated by reference in a Sales Order Form that describes the specific scope, deliverables, timeline, and fees for Professional Services to be provided under this Agreement.

1.15. “Supplemental Services” means the services described in Section 2.2 below, which are in addition to Professional Services.

1.16. “Term” means the Initial Term and any Renewal Term, collectively.

Section 2. Services.

2.1. Professional Services. Subject to Client’s satisfaction of our credit approval requirements and our verification of the information provided by Client for the purpose of establishing the Service, we shall provide the Professional Services in accordance with the terms and conditions of each Sales Order Form, Statement of Work, and related Service Level Agreements (SLAs) entered into pursuant to this Agreement. The specific scope of Professional Services to be provided shall be as set forth in the applicable Sales Order Form or Statement of Work, and may include the service categories described in Sections 2.1.1 through 2.1.4 below.

2.1.1. EntryReady Access Control Technical Support.

Where specified in the applicable Sales Order Form or Statement of Work, EntryReady shall provide technical support services for EntryReady Products and EntryReady Services, which may include the following:

(a) Hardware Troubleshooting. Diagnosis and troubleshooting of EntryReady electronic locks, controllers, encoders, programmers, and other EntryReady hardware components to identify operational issues, hardware malfunctions, or configuration problems.

(b) EntryReady Server™ Support (On-Premise). Operational and configuration support for EntryReady Server™ deployed at Client’s facilities, including assistance with software configuration, database management, system optimization, and troubleshooting of server-side issues affecting access control operations.

(c) Cloud and Mobile Services Support. If applicable as specified in the Sales Order Form, support for EntryReady Cloud™ and EntryReady Mobile Key™ services, including account configuration, user management, mobile credential provisioning, cloud connectivity troubleshooting, and platform-specific technical assistance. Client’s use of such services shall be subject to the applicable Incorporated Terms.

(d) Credential Issuance and Access Troubleshooting. Assistance with credential issuance, including key card programming, mobile credential deployment, and access level configuration. Troubleshooting of access-related issues, including credential read failures, access denials, audit log analysis, and user access permission conflicts.

(e) PMS Integration Support. Assistance with EntryReady-side issues related to the integration between EntryReady Products or EntryReady Services and Client’s PMS, including interface configuration, data synchronization troubleshooting, and integration error diagnosis. Notwithstanding the foregoing, EntryReady shall not be responsible for remediation of issues originating within the PMS or any third-party vendor’s systems. Client acknowledges that resolution of PMS vendor-side issues shall be the sole responsibility of Client and the applicable PMS vendor.

2.1.2. Network and Connectivity Assistance (EntryReady-Related Only).

Where specified in the applicable Sales Order Form or Statement of Work, EntryReady shall provide network and connectivity assistance limited to issues directly impacting the operation of EntryReady Products and EntryReady Services, which may include the following:

(a) Network Diagnostics. Diagnosis of network issues impacting the functionality, connectivity, or performance of EntryReady systems, including identification of network-related root causes for access control system failures or degraded performance.

(b) Configuration Review. Review of IP addressing, VLAN configurations, firewall rules, and port access settings as they relate to EntryReady system requirements. EntryReady shall provide recommendations for network configuration changes necessary for optimal EntryReady system operation.

(c) Third-Party Coordination. Coordination with Client’s internal IT staff or third-party network vendors to facilitate the resolution of network-related issues affecting EntryReady systems. EntryReady shall provide technical specifications, requirements documentation, and subject matter expertise as reasonably necessary to support such coordination efforts. Client shall remain responsible for engaging and managing its third-party vendors and for any costs associated therewith.

2.1.3. Onsite Support.

Where specified in the applicable Sales Order Form or Statement of Work, or as otherwise agreed pursuant to a Service Request, EntryReady shall provide onsite support services at Client’s designated facilities, which may include the following:

(a) Physical Inspection and Troubleshooting. Physical inspection, testing, and hands-on troubleshooting of EntryReady hardware components, including electronic locks, controllers, encoders, programmers, and related equipment.

(b) Component Replacement. Replacement of defective EntryReady hardware components using Client-approved parts. Client shall be responsible for the cost of replacement parts unless otherwise specified in the Sales Order Form or applicable warranty terms. Use of non-approved or third-party parts may void applicable warranties.

(c) Wiring and Termination Verification. Verification of existing wiring and terminations associated with EntryReady hardware installations. Such verification shall include inspection of cable connections, terminal blocks, power supplies, and communication pathways. EntryReady shall not be responsible for the installation of new wiring or the remediation of wiring deficiencies caused by third parties or conditions outside of EntryReady’s control, unless separately agreed in writing.

2.1.4. Product Usage Training.

Where specified in the applicable Sales Order Form or Statement of Work, or as otherwise agreed pursuant to a Service Request, EntryReady shall provide ad-hoc training and guidance for Client personnel on the use and operation of EntryReady Products and EntryReady Services, which may include the following:

(a) Credential Issuance and Access Management. Training on the issuance, programming, and management of access credentials, including key cards, fobs, and mobile credentials; configuration of access levels and permissions; and management of user accounts within EntryReady systems.

(b) Basic System Navigation and Administrative Functions. Training on basic system navigation, user interface operation, and administrative functions within EntryReady Server™, EntryReady Cloud™, or other EntryReady Services, as applicable.

(c) Day-to-Day Operational Workflows. Training on day-to-day operational workflows related to EntryReady systems, including routine operational procedures, common troubleshooting techniques for end-user issues, and best practices for access control system administration.

(d) Training Delivery. Training may be delivered remotely via video conference, telephone, or other electronic means, or onsite at Client’s facilities, as mutually agreed upon in the applicable Service Request. The scope, duration, and scheduling of training sessions shall be determined on a per-request basis and may be subject to additional fees as specified in the Sales Order Form or as otherwise agreed in writing.

2.1.5. Support Plans.

Where specified in the applicable Sales Order Form, EntryReady shall provide ongoing support services for EntryReady Products and EntryReady Services pursuant to a Support Plan. Support Plans may include the following elements, as specified in the applicable Sales Order Form:
(a) Coverage Hours. The days and hours during which support is available, which may include Business Day coverage, extended hours, or 24/7 availability depending on the Support Plan tier selected.
(b) Response Times. Target response times for support requests based on issue severity, as defined in the applicable Sales Order Form or Service Level Agreement.
(c) Support Channels. The methods by which Client may submit support requests, which may include telephone, email, online portal, or other channels as specified.
(d) Scope of Support. Support Plans cover troubleshooting, configuration assistance, and operational guidance for EntryReady Products and EntryReady Services. Support Plans do not include Professional Services such as onsite support, custom development, system upgrades, or services outside the scope specified in the applicable Sales Order Form, which shall be provided as Supplemental Services pursuant to Section 2.2.
(e) Support Plan Fees. Fees for Support Plans shall be as stated in the applicable Sales Order Form and may be billed monthly, annually, or as otherwise specified therein.

2.2. Supplemental Services. In addition to the Professional Services described above, we may from time to time perform certain additional services on an hourly or fixed fee basis, which may include: (i) the customization of EntryReady Products or EntryReady Services at Client’s request; (ii) professional services related to system design, installation, or integration beyond the scope of the Professional Services described above; (iii) extended training programs beyond ad-hoc guidance; (iv) expedited or after-hours support services; and (v) other professional services related to the Services. Supplemental Services will be performed only with Client’s written agreement in advance and will be invoiced at our then current rates or other rates approved in advance in writing by Client and us.

2.3. Incorporated Terms and Conditions. Client acknowledges and agrees that: (a) Client’s purchase and use of EntryReady Products is subject to the EntryReady Product Terms incorporated herein; (b) if Client or any of Client’s users access EntryReady Cloud™, EntryReady Server™, or EntryReady Programmer™ Services, such access shall be subject to the applicable terms of use and license agreement incorporated herein; (c) if Client or any of Client’s users access EntryReady Mobile Key™ Services, such access shall be subject to the applicable terms of use and license agreement incorporated herein; and (d) if Client or any of Client’s users access the Apple Access Platform, such access shall be subject to the Participating Provider Pass-Through Terms and the Addendum of Terms required by Apple Inc. incorporated herein. EntryReady does not agree to and rejects any different or additional terms that might be contained in any purchase order or other documents issued by Client, and deems each of them a material alteration to this Agreement. Client shall: (i) present and obtain assent from Client’s users to EntryReady Mobile Key and the EULA within the application; and (ii) include EntryReady as a third‑party beneficiary.

2.4. Taxes, Shipping, and Other Fees. Client acknowledges that all applicable federal, state, and local taxes, shipping charges, handling fees, and other fees may be added to invoices for EntryReady Products and Services. Client shall pay all such taxes to us unless a valid exemption certificate is furnished to us for each of the states of use of the Services by Client. EntryReady reserves the right to cancel orders arising erroneously from pricing or other errors. Client shall pay all such taxes and fees unless a valid exemption certificate is furnished to us. Title transfers upon full payment; risk of loss passes upon delivery at Client’s designated dock (FOB Destination.

Section 3. Term.

This Agreement shall remain in effect for so long as any Sales Order Form or Statement of Work incorporating this Agreement is in effect. The term of each Sales Order Form or Statement of Work begins on the Service Commencement Date and continues for the period stated therein (the “Initial Term”). Upon expiration of the Initial Term, this Agreement and each Sales Order Form or Statement of Work shall automatically renew for consecutive terms of one (1) year each (each, a “Renewal Term”), unless either party provides the other with written notice of non-renewal at least 30 days before the expiration of the Initial Term or any Renewal Term. We and Client may also agree in writing to different renewal terms for any Sales Order Form or Statement of Work.

Section 4. Payments.

4.1. Fees. Client shall pay the fees stated in the Sales Order Form and the fees for any Supplemental Services as described in Section 2.2. Fees for Professional Services shall be invoiced in accordance with the applicable Sales Order Form or Statement of Work, which may include time and materials billing, fixed fee arrangements, or recurring service fees as specified therein. Unless otherwise specified in the Sales Order Form, invoices for Services are due within 30 days following our sending Client an invoice. Following the expiration of the Initial Term, unless we and Client have agreed to a Renewal Term as described in Section 3 that modifies our fees for the Services, we may modify the fees for any Service not fewer than 30 days after giving written notice to Client.

4.2. Collections. We may suspend any or all Services not fewer than 10 days after giving written notice to Client if payment for any Service is overdue by more than 30 days. Client shall pay our then current reinstatement fee following such a suspension. We may charge interest on amounts that are overdue by 5 days or more at the lesser of one and one half percent (1.5%) per month or the maximum rate allowed under applicable law. In addition, upon demand Client shall pay our costs of collection for all overdue amounts for the Services, including collection agency fees, attorneys’ fees and court costs.

4.3. Early Termination. Without limiting any other remedy available to us arising from an early termination of this Agreement, if we terminate this Agreement for Client’s breach of this Agreement in accordance with Section 10.2 (i), (ii) or (iii), all fees due under this Agreement for Services rendered through the date of termination, plus any fees specified in the applicable Sales Order Form or Statement of Work for early termination, are due 15 days following such termination.

Section 5. Stop Work.

We may stop work and suspend Professional Services upon written notice to Client if: (i) Client fails to provide access, information, or cooperation reasonably necessary for us to perform the Services; (ii) Client fails to pay amounts due under this Agreement within the time periods specified in Section 4.2; (iii) Client is in material breach of this Agreement and fails to cure such breach within 10 days of written notice; or (iv) continuation of Services would require us to violate applicable law. We shall promptly resume Services when the conditions giving rise to the stop work have been cured. Any delay in the performance of Services resulting from a stop work under this Section 5 shall not constitute a breach of this Agreement by us, and any applicable deadlines or milestones shall be extended by the duration of the stop work period.

Section 6. Representations and Warranties.

6.1. Reciprocal. We represent and warrant to Client, and Client represents and warrants to us, that: (i) it has the power and authority to enter into this Agreement and to perform its obligations under this Agreement; (ii) it has taken all necessary action on its part to authorize the execution and delivery of this Agreement and (iii) the execution and delivery of this Agreement and the performance of its obligations hereunder do not conflict with or violate applicable laws or regulations, and do not conflict with or constitute a default under its charter documents or any agreement to which it is a party.

6.2. EntryReady. EntryReady represents and warrants that the Professional Services will be performed in a professional and workmanlike manner consistent with industry standards.

6.3. Client. Client represents and warrants to us that: (i) the information Client has provided to us for the purpose of establishing Services is accurate; (ii) Client owns or has the legal right to authorize EntryReady to access and work on the systems, equipment, and software for which Services are requested; (iii) Client will comply with all applicable laws in connection with its use of the Services; and (iv) Client shall provide reasonable access, information, and cooperation necessary for EntryReady to perform the Services.

Section 7. Indemnification.

7.1. Indemnification. The indemnification obligations set forth in this Section 7 shall be the parties’ exclusive rights and remedies with respect to this Agreement.

7.2. Indemnity by Client. Client shall indemnify and hold harmless us, our affiliates, and each of their respective officers, directors, members, agents and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties and fines of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party under any theory of legal liability arising out of or related to any of the following: (i) the actual or alleged use of the Products or Services (or both) in violation of this Agreement or applicable law; or (ii) any breach by Client of any of its obligations under this Agreement.

7.3. Reciprocal Indemnification. Each party shall indemnify and hold harmless the other party, the other party’s affiliates, and each of their respective officers, directors, members, agents and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties and fines of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party under any theory of legal liability arising out of or related to the indemnifying party’s actual or alleged: (i) gross negligence, (ii) willful misconduct or (iii) infringement or misappropriation of a third party’s copyright, trade secret, patent, trademark or other intellectual property right.

7.4. Procedures. A party seeking indemnification under this Section 7 shall provide prompt notice of its claim for indemnification to the indemnifying party; provided, however, that failure to give prompt notice shall not affect the indemnifying party’s obligations under this Section 7 unless and to the extent that the failure materially prejudices the defense of the claim. The indemnifying party may select counsel to defend the indemnified party in respect of any indemnified claim under this Section 7; provided, however, that the counsel selected must be qualified to defend the indemnified claim in the judgment of the indemnified party, which judgment shall not be unreasonably withheld, conditioned or delayed. The indemnified party shall keep the indemnifying party fully informed of the status of the claim, including all communications from the claimant, and shall cooperate with the indemnifying party with respect to any judicial proceeding or dispute resolution procedure. The indemnifying party shall not settle any claim covered by this Section 7 without the written consent in advance of the indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed. If, however, such settlement shall be only for a monetary amount covered by the indemnifying party’s indemnification obligation under this Section 7 and shall not impose any other liability on the indemnified party, then, no consent shall be required from the indemnified party. Notwithstanding anything in this Section 7 to the contrary, if we are indemnifying multiple customers or clients, including Client, related to the subject matter of the indemnification claim, we shall have the right to seek consolidation of all such actions and to select counsel to defend the actions.

7.5. Patent, Copyright, Trade Secret. Notwithstanding any other provision in this Section 7, if we determine in our sole discretion that any Service may involve any Product or Service that may become subject to a claim of infringement or misappropriation, we may elect to (a) obtain the right of continued use of such Product or Service, or (b) replace or modify such Product or Service to avoid such claim. If we do not elect to do so, then all applicable licenses involving the Product or Service shall terminate. This Section 7.5 states our entire liability and Client’s sole and exclusive remedies for patent or copyright infringement and trade secret misappropriation.

Section 8. Disclaimer.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CLIENT AGREES AND ACKNOWLEDGES THAT WE MAKE NO REPRESENTATION OR WARRANTY TO CLIENT, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR PRODUCTS, INCLUDING ANY REPRESENTATION OR WARRANTY AS TO THE CONDITION, QUALITY, FITNESS FOR USE OR FOR A PARTICULAR PURPOSE OR MERCHANTABILITY OF THE SERVICES OR PRODUCTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WE DO NOT WARRANT OR REPRESENT THAT THE SERVICES OR PRODUCTS WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. CLIENT ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CLIENT’S PRIVACY, CONFIDENTIAL INFORMATION AND PROPERTY.

Section 9. Limitation of Damages.

9.1. Credits. THE CREDITS DESCRIBED IN ANY APPLICABLE SERVICE LEVEL AGREEMENT AND SALES ORDER FORM ARE CLIENT’S SOLE REMEDY FOR OUR FAILURE TO MEET THE SERVICE REQUIREMENTS STATED IN SUCH DOCUMENTS.

9.2. No Consequential Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY PUNITIVE DAMAGES.

9.3. Monetary Limitation. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, OUR MAXIMUM AGGREGATE MONETARY LIABILITY UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY AND INFRINGEMENT) SHALL NOT EXCEED THE TOTAL FEES PAID BY CLIENT TO ENTRYREADY UNDER THE APPLICABLE STATEMENT OF WORK OR SALES ORDER FORM GIVING RISE TO THE CLAIM, OR IF NO SUCH STATEMENT OF WORK OR SALES ORDER FORM IS APPLICABLE, THE TOTAL FEES PAID BY CLIENT DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Section 10. Termination.

10.1. By Client. Client may terminate this Agreement before the expiration of the Initial Term or any Renewal Term without liability to us (except for amounts due for Services through the effective date of such termination and subject to Section 4.2) as follows: (i) we fail in a material way to provide the Services in accordance with the terms of this Agreement and do not cure the failure within 10 days following receipt of Client’s written notice describing the failure in reasonable detail; or (ii) we materially violate any other provision of this Agreement and fail to cure the violation within 30 days following receipt of Client’s written notice describing the violation in reasonable detail.

10.2. By Us. We may terminate this Agreement before the expiration of the Initial Term or any Renewal Term without liability to Client as follows: (i) upon not fewer than 5-days’ written notice in advance, if Client is overdue by more than 60 days in the payment of any amount due under this Agreement; which overdue payment shall continue to be due and payable by Client following such termination and subject to Section 4.2; (ii) Client materially violates any other provision of this Agreement and fails to cure the violation within 10 days after a written notice from us describing the violation in reasonable detail or (iii) upon not fewer than 90-days’ written notice in advance, if we are threatened with a claim for intellectual property misappropriation or infringement related to the provision of any of the Services or Products and, in our sole discretion, we are unable to modify the Services or Products (or both) in a manner that avoids a potential risk of liability pursuant to such claim.

Section 11. Confidentiality.

11.1. Confidential Information. “Confidential Information” means all information disclosed by one party to the other, whether before or after the execution of this Agreement, including: (i) with respect to us, our unpublished prices and other terms of the Services or sale of Products (or both), proprietary methodologies, technical documentation, and all other trade, business, financial and technology information about us and our operations that we consider to be our confidential and proprietary property, (ii) with respect to Client, Client’s business information, system configurations, and data disclosed to us in connection with the Services, and (iii) with respect to both parties, all other information that is marked as “confidential” or if disclosed in non-tangible form, is verbally designated as “confidential” at the time of disclosure and confirmed as confidential in a written notice given by the disclosing party to the receiving party within 15 days following such disclosure. Confidential Information shall not include any information that (a) was in the public domain or enters the public domain through no act or omission on the part of the receiving party; (b) is rightfully disclosed to the receiving party by a source not bound by a confidentiality agreement with the other party hereto; (c) was in the possession of the receiving party before receipt from the disclosing party as evidenced by the books and records of the receiving party, or (d) is developed by the receiving party after receipt of Confidential Information from the disclosing party independent of the Confidential Information of the disclosing party and such independent development is evidenced by the contemporaneous books and records of the receiving party.

11.2. Use and Disclosure. Each party agrees not to use the other party’s Confidential Information except in connection with the performance or use of the Services, as the case may be, or the exercise of its rights under this Agreement. Each party agrees not to disclose the other party’s Confidential Information to any person or entity except as provided in Section 11.3 and to its employees and consultants who have a need to know the Confidential Information; provided, that such employees and consultants are advised that the Confidential Information so disclosed is the Confidential Information of the other party and such employees and consultants are bound by confidentiality restrictions in a writing at least as protective as those set forth in this Agreement.

11.3. Disclosure of Confidential Information. Notwithstanding anything to the contrary contained in this Section 11, each party may disclose any of the Confidential Information of the other party if, and only to the extent, required to do so by law, governmental regulation or court order; provided, that the party making such disclosure shall give prompt notice thereof to the other party in as far in advance as practicable before such disclosure and shall cooperate with the other party, at such other party’s expense, to obtain a protective order regarding such disclosure.

Section 12. Administration.

12.1. Solicitation of Our Employees or Contractors. Client shall not solicit or hire any EntryReady employee or independent contractor engaged by EntryReady to become an employee of, or consultant to, Client for the Term and for a period of 1 year following the expiration or the termination of this Agreement for any reason.

12.2. Ownership. Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trade secrets, inventions, copyrights, and all other intellectual property of such other party. Client retains all ownership rights in its systems, data, and pre-existing intellectual property. EntryReady shall own all right, title, and interest in and to: (i) all tools, methodologies, processes, and know-how used or developed by EntryReady in performing the Services, whether or not developed for Client; and (ii) all ideas, concepts, inventions, and intellectual property rights that EntryReady may develop in the course of performing the Services. Nothing in this Agreement transfers ownership of any intellectual property from one party to the other, except as expressly set forth in a Statement of Work.

12.3. Amendment. Except as otherwise expressly provided herein, no amendment of this Agreement shall be binding upon either party hereto unless such amendment is set forth in a writing and executed by both parties hereto. Any waiver of any breach of any provision of this Agreement shall only be effective if in a writing and executed by both parties hereto and only to the extent specifically set forth in such writing.

12.4. No Assignment. Client shall not assign this Agreement or any part hereof without our prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Client shall not sublicense any of its rights under this Agreement, nor shall Client delegate or subcontract to any person or entity any of the performance of Client’s duties hereunder.

12.5. Counterparts. This Agreement may be executed in counterpart, and each such counterpart hereof shall be deemed to be an original instrument, and all such counterparts together shall constitute but one agreement.

12.6. Notice. All notices and other communications under this Agreement shall be in writing and shall be delivered personally, by nationally recognized overnight courier or by electronic mail to the appropriate party at its address set forth in the Sales Order Form, or at such other address as such party may provide in writing to the other party hereto in accordance herewith from time to time. Any such other notice so delivered shall be effective when personally delivered or sent by electronic mail with a copy thereof retained by the sender, or one (1) day after deposit with such courier with delivery charges prepaid.

12.7. Entire Agreement. This Agreement (consisting of the Sales Order Form entered into between Client and us; the Incorporated Terms; the General Terms and Conditions; and all Schedules attached to the Sales Order Form or this Agreement, which may include, but not be limited to any related Service Level Agreements and Statements of Work) constitutes the entire understanding between the parties hereto with respect to the subject matter hereof. The parties hereto agree that this Agreement supersedes and replaces any and all other agreements, whether oral or in writing, regarding the subject matter hereof.

12.8. No Third Party Beneficiary. This Agreement shall be binding upon and inure to the benefit of the parties hereto and our successors and assigns. No other person or entity is an intended third party beneficiary of, or shall be deemed to be a third party beneficiary of, any of the terms and conditions of this Agreement.

12.9. Validity. In case any one or more of the provisions contained in this Agreement should be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby and the parties hereto agree to negotiate in good faith to replace such invalid, illegal or unenforceable provision with a replacement provision to carry out the intent of such provision to the fullest extent lawful.

12.10. Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of Connecticut without regard for its conflict of laws principles. The parties irrevocably and unconditionally submit to the jurisdiction of the federal and state courts located within the State of Connecticut for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement.

12.11. Force Majeure. We shall not be in default of any obligation under this Agreement if the failure to perform the obligation is due to any event beyond our control, including significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strike or other organized labor action, terrorist activity or other events of a similar magnitude or type.

12.12. Remedies. Money damages would not be a sufficient remedy for a breach of certain of Client’s obligations under this Agreement. In addition to any other remedies that might otherwise be available to us at law or in equity, we may seek and obtain specific performance and injunctive relief against the commission or continuation of any such breach or any anticipatory breach of this Agreement by Client, without bond.

12.13. Survival. The following Sections of this Agreement shall survive any termination or the expiration of this Agreement: Sections 1, 3, 7, 8, 9, 10, 11, and 12.

12.14. Independent Contractor. Client shall at all times act as and be considered an independent contractor hereunder. Nothing herein contained shall create any employment, agency, partnership, distributorship, joint venture or any other business relationship between Client and us, other than that of an independent contractor user of the Services. Client shall have no authority to obligate or bind us with respect to any matter, or make any contract, sale, agreement, warranty or representation, express or implied, on our behalf.

12.15. Limitation on Actions. No legal action, regardless of its form, whether in contract or tort, including negligence, related to or arising out of this Agreement, may be brought by either party more than one (1) year after the cause of action first accrued.

12.16. Attorneys’ Fees. In disputes concerning this Agreement, we shall be entitled to the costs of collection, enforcement, and injunctive relief, including but not limited to reasonable attorney’s fees and court costs, post-judgment collection expenses, and all necessary expenses, regardless of whether litigation is commenced.

12.17. Terms Generally. The Section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement or any part thereof. The definitions in this Agreement shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” All references herein to Sections and Exhibits shall be deemed to be references to Sections of, and Exhibits to, this Agreement unless the context shall otherwise require. If any action or notice is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action or notice may be deferred until, or may be taken or given on, the next Business Day. Unless otherwise specifically indicated, the word “or” shall be deemed to be inclusive and not exclusive.

12.18. Terms and Conditions. To the extent that any of the terms and conditions of this Agreement shall conflict with the EntryReady “Product Terms & Conditions,” the terms and conditions of this Agreement shall control such conflicting terms and conditions.