MASTER DATA AS A SERVICE SUBSCRIPTION AGREEMENT

AGREEMENT

This Master Data as a Service Subscription Agreement (“Agreement”) is entered into by and between Robling, Inc. a Delaware C corporation (“Robling”) and the customer identified in the applicable Order Form (“Customer”) and is effective as of the date identified in the applicable Order Form (the “Effective Date”). The Agreement consists of the terms and conditions set forth below, any attachments or exhibits identified below and any Order Forms (as defined below) which reference this Master DaaS Subscription Agreement.

This Agreement permits Customer to purchase software-as-a-service products and other services from Robling pursuant to Robling order forms referencing this Agreement (“Order Form(s)”) and sets forth the basic terms and conditions under which those products and services will be delivered. This Agreement shall govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer which reference this Agreement.

TERMS AND CONDITIONS

1. ROBLING PRODUCT

1.1. Provision of Robling Product.

Robling provides a proprietary, cloud-based data-as-a-service product as set forth in the applicable Order Form and the applicable Documentation (the “Robling Product”). Robling may also offer training and other professional services relating to the Product (“Professional Services”). The Robling Product is provided on a subscription basis for a set term designated on the applicable Order Form (each, a “Subscription Term”). Customer will purchase and Robling will provide the Robling Product and related Professional Services (if any) as specified in the applicable Order Form.

1.2. Access to Robling Product.

Customer may access and use the Robling Product solely for its own benefit and in accordance with the terms and conditions of this Agreement, the end user technical documentation provided for the Robling Product (“Documentation”) and any use restrictions designated in the applicable Order Form.

1.3. Contractors.

Customer may permit its independent contractors and consultants who are not competitors of Robling (“Contractors”) to serve as Permitted Users, provided Customer remains responsible for compliance by each such Contractor with all of the terms and conditions of this Agreement and any such use of the Robling Product by such Contractor is for the sole benefit of Customer.

1.4. General Restrictions.

Customer shall not (and shall not permit any third party to): (a) rent, lease, copy, provide access to or sublicense the Robling Product to a third party; (b) use the Robling Product to provide, or incorporate the Robling Product into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Robling Product, except to the extent expressly permitted by applicable law (and then only upon advance notice to Robling); (d) modify the Robling Product or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Robling Product (including any reports or data printed or exported from the Robling Product); or (f) publicly disseminate information regarding the performance of the Robling Product.

2. CUSTOMER DATA

2.1. Definition.

“Customer Data” means any business information or other data of any type that is input by or on behalf of Customer into the Robling Product and any data sets Customer creates using the Robling Product.

2.2. Rights in Customer Data.

As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Robling. Subject to the terms of this Agreement, Customer hereby grants to Robling a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Robling Product to Customer.

2.3. Customer Obligations.

a) In General.

Customer shall ensure that Customer’s use of the Robling Product and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Robling that Customer has sufficient rights in the Customer Data to grant the rights granted to Robling in Section 2.2 above and that the Customer Data does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party.

b) No Protected Health Information Allowed.

In addition, Customer specifically agrees not to use the Robling Product to store, process or transmit any Sensitive Personal Information. “Sensitive Personal Information” means (i) a Social Security number; (ii) a driver’s license, non-driver identification card, or other government-issued identification number; (iii) an account, credit, or debit card number; (iv) any security code, access code, or password that would permit access to an individual’s financial account; (v) biometric records; or (vi) information relating to the individual’s health or medical care or payment for the provision of health care to the individual. Customer acknowledges that Robling is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Robling Product is neither HIPAA nor PCI DSS compliant. Robling shall have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.

2.4. Indemnification by Customer.

Customer shall indemnify, defend and hold harmless Robling from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Customer Data or breach or alleged breach by Customer of Section 2.3 (Customer Obligations) or (b) any service or product offered by Customer in connection with or related to the Robling Product. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Robling at Customer’s expense.

3. SECURITY.

Robling agrees to use commercially reasonable and industry standard technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Robling Product or Customer Data, as further described at Robling Security Policy (“Security Policy”). Robling may updated the Security Policy based on evolving industry standards, but may not lower the level of protection provided in any material manner. However, Robling shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Robling’s control.

4. OWNERSHIP.

4.1. Robling Technology.

This is a subscription agreement for access to and use of the Robling Product. Customer acknowledges that it is obtaining only a limited right to the Robling Product and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Robling or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Robling Product, Documentation, Professional Services deliverables and any and all related and underlying technology and documentation; and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “Robling Technology”). Except as expressly set forth in this Agreement, no rights in any Robling Technology are granted to Customer. Further, Customer acknowledges that the Robling Product is offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of the Robling Product.

4.2. Feedback.

Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to Robling’s products or services to Robling (“Feedback”). Robling may freely use or exploit Feedback in connection with any of its products or services.

4.3. Aggregated Anonymous Data.

Notwithstanding anything to the contrary herein, Customer agrees that Robling may obtain and aggregate technical and other data about Customer’s use of the Robling Product that is non-personally identifiable with respect to Customer (“Aggregated Anonymous Data”), and Robling may use the Aggregated Anonymous Data to improve, support and operate the Robling Product and otherwise for any business purpose during and after the term of this Agreement. For clarity, this Section does not give Robling the right to identify Customer as the source of any Aggregated Anonymous Data.

5. SUBSCRIPTION TERM, FEES & PAYMENT

5.1. Subscription Term and Renewals.

Unless otherwise specified on the applicable Order Form, each Subscription Term shall automatically renew for additional one year periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.

5.2. Fees and Payment.

The annual Subscription Fees are payable annually in advance. All fees are as set forth in the applicable Order Form and shall be paid by Customer in U.S. dollars within thirty days of invoice, unless otherwise specified in the applicable Order Form. Except as expressly set forth in Section 7 (Limited Warranty) and Section 11 (Indemnification), all fees are non-refundable. Robling reserves the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Robling. Robling will provide an invoice showing the taxes included. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

5.3. Suspension of Service.

If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Robling reserves the right to suspend Customer’s access to the Robling Product (and any related services) without liability to Customer until such amounts are paid in full.

6. TERM AND TERMINATION

6.1. Term.

This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.

6.2. Termination for Cause.

Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

6.3. Effect of Termination.

Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Robling Product (including any and all related Robling Technology) and delete (or, at Robling’s request, return) any and all copies of the Documentation, any Robling passwords or access codes and any other Robling Confidential Information in its possession. Provided this Agreement was not terminated for Customer’s breach, Customer may retain and use internally copies of all reports and data sets exported from the Robling Product prior to termination. Customer acknowledges that following termination it shall have no further access to any Customer Data input into the Robling Product, and that Robling may delete any such data as may have been stored by Robling at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

6.4. Survival.

The following Sections shall survive any expiration or termination of this Agreement: 1.4 (General Restrictions), 2.4 (Indemnification by Customer), 4 (Ownership), 5.2 (Fees and Payment), 6 (Term and Termination), 7.2 (Warranty Disclaimer), 10.2 through 10.5 (Limitation of Remedies and Damages), 11 (Indemnification), 12 (Confidential Information) and 14 (General Terms).

7. LIMITED WARRANTY

7.1. Limited Warranty.

Robling warrants, for Customer’s benefit only, that the Robling Product will operate in substantial conformity with the applicable Documentation. Robling’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, at no charge to Customer, for Robling to use commercially reasonable efforts to correct the reported non-conformity, or if Robling determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer shall receive as its sole remedy a refund of any fees Customer has pre-paid for use of the Robling Product for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 7.1 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to Unpaid Subscriptions or other services or items provided on a no-charge or evaluation basis.

7.2. Warranty Disclaimer.

EXCEPT FOR THE LIMITED WARRANTY IN SECTION 7.1, THE ROBLING PRODUCT AND ALL RELATED SERVICES ARE PROVIDED “AS IS”. NEITHER ROBLING NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ROBLING DOES NOT WARRANT THAT CUSTOMER’S USE OF THE ROBLING PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE. ROBLING SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF ROBLING.

8. SUPPORT.

8.1 Support Services.

During the applicable Subscription Term, Customer shall receive access to customer knowledgebase FAQs and other online support (“Support Services”) available at https://robling.freshdesk.com/support/login (“Online Service Desk”). Robling shall use commercially reasonable efforts to respond during normal business hours to Customer inquiries submitted through the Online Service Desk.

8.2 Support Services Scope.

The Robling Product may be made available, all or partly, in source code form (the “Source Code”). Robling has no obligation to provide Support Services for the modifications made by Customer or any third party to Source Code or any errors in the Robling Product created by such modifications. Discrepancies in data or reports between the Robling Product and a third party system (e.g., differences in sales figures) is not an error within the Robling Product and is not subject to Support Services. Unless otherwise set forth in the applicable Order Form, the scope of Support Services is limited to the Robling Product and excludes any extensions or modifications provided by a third party.

9. PROFESSIONAL SERVICES.

Robling shall provide the Professional Services (if any) purchased in the applicable Order Form. The scope of Professional Services shall be as set forth in a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information (“SOW”). Unless Professional Services are provided on a fixed-fee basis, Customer shall pay Robling at the per-hour rates set forth in the Order Form (or, if not specified, at Robling’s then-standard rates) for any excess services. Customer will reimburse Robling for reasonable travel and lodging expenses as incurred. Customer may use anything delivered as part of the Professional Services in support of authorized use of the Robling Product and subject to the terms regarding Customer’s rights to use the Robling Product set forth in Section 1.2 (Access to Robling Product) and the applicable SOW.

10. INSURANCE; LIMITATION OF REMEDIES AND DAMAGES

10.1. Insurance.

During the term of this Agreement, Robling will maintain (i) General Commercial Liability Insurance of at least $1,000,000 per occurrence and $2,000,000 in the aggregate; and (ii) Technology & Cyber Insurance of at least $2,000,000 per occurrence and in the aggregate. Robling shall list Customer as an “additional insured” to those policies. All insurance to be maintained by Robling shall be primary and non-contributory. Robling shall provide Customer with certificates of insurance evidencing the required coverages upon execution of this Agreement and subsequently as reasonably requested by Customer.

10.2. Consequential Damages Waiver.

EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY NOR ITS SUPPLIERS SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

10.3. Liability Cap.

EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY'S ENTIRE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO ROBLING DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.

10.4. Excluded Claims.

“Excluded Claims” means any claim arising from (a) Robling’s obligations under Section 11 (Indemnifications); or (b) Customer’s breach of Section 1.4 (General Restrictions) or Section 2 (Customer Data).

10.5. Nature of Claims and Failure of Essential Purpose.

The parties agree that the limitations specified in this Section apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

11. INDEMNIFICATION.

Robling shall defend Customer from and against any claim by a third party alleging that the Robling Product when used as authorized under this Agreement infringes a U.S. patent, U.S. copyright, or U.S. trademark and shall indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by Robling (including reasonable attorneys’ fees) resulting from such claim, provided that Robling shall have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Robling to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of the Robling Product is (or in Robling’s opinion is likely to be) enjoined, if required by settlement or if Robling determines such actions are reasonably necessary to avoid material liability, Robling may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the Robling Product; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term that was paid by Customer but not rendered by Robling. The foregoing indemnification obligation of Robling shall not apply: (1) if the Robling Product is modified by any party other than Robling, but solely to the extent the alleged infringement is caused by such modification; (2) if the Robling Product is combined with products or processes not specified in the Documentation or provided by Robling, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Robling Product; (4) to any action arising as a result of Customer Data or any third-party deliverables or components contained within the Robling Product; or (5) if Customer settles or makes any admissions with respect to a claim without Robling’s prior written consent. THIS SECTION 11 SETS FORTH ROBLING’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

12. CONFIDENTIAL INFORMATION.

Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Robling Technology, performance information relating to the Robling Product, and the terms and conditions of this Agreement shall be deemed Confidential Information of Robling without any marking or further designation. Any Customer Data shall be deemed Confidential Information of Customer without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 12 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 12. The Receiving Party’s nondisclosure obligation shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

13. PUBLICITY.

Robling may use Customer’s name, logo and marks to identify Customer as a customer of Robling on Robling’s website and other marketing materials.

14. GENERAL TERMS

14.1. Assignment.

This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.

14.2. Severability.

If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

14.3. Governing Law; Jurisdiction and Venue.

This Agreement shall be governed by the laws of the State of Georgia and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in Atlanta, Georgia and both parties hereby submit to the personal jurisdiction of such courts.

14.4. Attorneys’ Fees and Costs.

The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

14.5. Notice.

Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth in the applicable Order Form and, for Robling, under Notices to Robling below or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.

14.6. Amendments; Waivers.

No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

14.7. Entire Agreement.

This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Robling Product is an on-line, subscription-based product, and that in order to provide improved customer experience Robling may make changes to the Robling Product, and Robling will update the applicable Documentation accordingly. The terms described in the Security Policy may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but any such modifications will not materially decrease Robling’s obligations as compared to those reflected in such terms as of the Effective Date).

14.8. Force Majeure.

Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

14.9. Subcontractors.

Robling may use the services of subcontractors and permit them to exercise the rights granted to Robling in order to provide the Robling Product and Professional Services under this Agreement, provided that Robling remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Robling Product as required under this Agreement.

14.10. Independent Contractors.

The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

14.11. Counterparts.

This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.

NOTICES TO ROBLING

Robling, Inc.
421 5th Avenue W
Hendersonville NC 28739
Attention: Jeff Buck