SUPRA ONE MASTER AGREEMENT

This Supra One Master Agreement (“Agreement”) by and between BrokerBay Inc., with a principal place of business at 4001 Fairview Industrial Drive S.E., Salem, Oregon 97302-1142 (“Supra”) and the customer identified in the Order Form with a principal place of business at (“Customer”), effective as of the date of last signature in the Order Form (“Effective Date”).   Each party is sometimes also referred to as “Party,” and collectively, as the “Parties.” 

RECITALS

WHEREAS, Supra offers a comprehensive real estate platform that allows customers to manage Supra Products, Software and Services.

WHEREAS, Customer wishes to engage Supra to provide Products, Software and Services to Customer, as described in Order Forms entered into between Supra and Customer.

NOW, THEREFORE, in consideration of the foregoing and for good and valuable consideration, the parties agree as follows:

SECTION 1 - DEFINITIONS

1.1  “Admin User” means a natural person who is an employee, contractor or agent of Customer authorized by Customer to whom Customer or, when applicable, Supra, upon Customer’s written request, has supplied a user identification and password to provision access to Authorized Users. The term Admin User does not include Authorized Users. 

1.2 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For the purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the entity or subject entity.

1.3 “Ancillary Agreement(s)” means the applicable terms of service for Authorized Users (as defined below), including without limitation  lease or end user license agreements.

1.4 “Applicable Data Privacy Laws” means applicable data protection, privacy, breach notification, or data security laws or regulations. “Data Controller” means a Party that alone or jointly with others, determines the purposes and means of the processing of Personal Data (as that term or similar variants may otherwise by defined in Applicable Data Privacy Laws).  “Personal Data” means any information relating to an identified or identifiable natural person or as that term or similar variants may otherwise be defined in Applicable Data Privacy Laws. Personal Data includes (i) relationship data provided by one Party to the other to manage the relationship between the Parties, and (ii) personally identifiable usage data made available by the Customer or Authorized User to Supra in relation to the use of the Software for the purposes of providing, improving, or developing Supra products and services.

1.5  “Authorized Users” means a natural person who is a member, subscriber, contractor, agent, or other person authorized by Customer to use, view and access the Platform, Software, Products and Services selected by Customer in the applicable Order Form. 

1.6  “Beta Services” means Supra services or functionality that may be made available to Customer to try at its option and which are clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, trial, or by a similar description.

1.7   “Change Order” is a written Order signed by either Customer and Supra authorizing a change in the Products and Services provided hereunder or an adjustment in the pricing.

1.8  “Customer Data” means data submitted by or for Customer to the Platform or provided by Supra to Customer in output files generated by the Platform, excluding Content and Third-Party Service Content. The term Customer Data does not include User Data or Service Data.

1.9  “Documentation” means the technical user documentation and policies provided with the applicable Products, Software or Services, as amended by Supra from time to time.

1.10 “Fees” mean the prices as set forth in the applicable Order Form.

1.11  “Order Form” means a mutually-accepted, formal, transaction document that includes some or all of the following information:  the name of the Customer, Customer’s address and billing information, the Authorized User, Authorized User’s address and billing information (if applicable), the length of the Term (if applicable), the Fees due from Customer, the selected Product(s) and Service(s), if applicable, any maintenance and support being purchased (if applicable), including any schedules, exhibits, addenda and hyperlinked documents, as it or they may from time to time be amended or supplemented.  The Order Form is incorporated into this Agreement by reference.

1.12  “Platform” means the Supra One Platform, which includes a web-based digital user interface, mobile application, and integrated system components used by the Customer.  

1.13  “Products” means the equipment, Software, and Documentation the Customer has contracted for under the applicable Order Form.

1.14 “Professional Services” means professional services provided by Supra to Customer under a separate agreement, including additional implementation, configuration, training and development services. 

1.15 “Security Incident” means a confirmed breach of security leading to the accidental or unlawful destruction, loss, alteration, or unauthorized access, disclosure, or use of a Party’s Personal Data.

1.16 “Services” means those services provided under the applicable Order Form, which may include, but are not limited to, technical support services, billing services, and any other services Supra makes available to Customer.   

1.17 “Software” means the object code version of computer programs, applications, interfaces, platforms, and firmware provided hereunder, including any updates, upgrades, patches, bug fixes, enhancements, modifications, and derivative works of the foregoing.

1.18 “Software as a Service” or “SaaS” means Supra’s cloud-based services identified in the applicable Order Form and provisioned to Customer and its Authorized Users.

1.19 “Supra Mobile App” means an assigned digital key that provides Authorized Users access to keyboxes and other compatible devices, allows property access, and showing appointment scheduling activities through the use of a compatible mobile application or Bluetooth-enabled device or a unique PIN code required by an Authorized User to communicate with the Products to access property listing keys. 

1.20 “Terms of Service” means the privacy policy, acceptable use policy and/or end-user license terms and conditions of use of Supra, as it may from time to time be amended or supplemented by Supra. A copy of the current Supra Terms of Service is available on the Supra website.

1.21 “Third-Party Service Content” means any data, text, audio, video, images, and other content that is provided by a third party service provider (or by others on behalf of the third-party service provider), such as (without limitation) information about the third- party services including MLS information and data.

1.22 “User Data” means all information, including Personal Data, relating to an identified or identifiable Authorized User (a) that is provided by such Authorized User to the Platform or (b) that is otherwise collected, used, or disclosed by the Platform.

1.23 “Web Portal” means Supra’s standard web portal that enables Customer and it Authorized Users access to the Platform. 

SECTION 2 – ACCESS TO AND USE OF THE SERVICES

2.1 Subscriptions. Services are purchased as subscriptions for the term stated in the applicable Order Form (“Subscription Term”) and any added subscriptions for Services will follow the Subscription Term.

2.2 Service Access. During the Subscription Term, Supra shall host and make the Platform and Services available to Customer and its Authorized Users, provided such Authorized Users have entered into Ancillary Agreements or accepted Ancillary Agreement terms. Customer and its Authorized Users may access and use the Platform and Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation, and the applicable Order Form and/or Ancillary Agreements. Use of and access to the Platform and Services is permitted only by Customer, Admin User and its Authorized Users. Admin User shall be given access to the Platform to provide unique user identification (“User ID”), passwords, lockbox assignment and applications to Authorized Users to access the Platform and Services either through the Agent Mobile App or Web Portal. Customer will require that all Authorized Users keep User ID, password, and access information strictly confidential and not share such information with any unauthorized person or entity. User IDs are granted to individual, named persons and may not be shared with non-Authorized Users without Supra’s express written consent. Customer is responsible for any and all actions taken using Customer’s accounts and passwords, including any User IDs. If any Authorized User who has access to a User ID is nx1x         o longer an employee, member, contractor, agent or is no-longer in good standing with Customer, then Admin User shall immediately de-activate and terminate Authorized User’s access to the Platform and Services. 

2.3 Customer Responsibilities. Customer shall: (i) be responsible for Customer’s and Authorized Users’ compliance with this Agreement, Ancillary Agreements, and any Exhibits or Schedules incorporated herein that govern use of the Platform and Services and all applicable laws and regulations, (ii) use commercially-reasonable efforts to prevent unauthorized access to or use of the Platform and Services, and notify Supra promptly of any such unauthorized access or use, (iii) be responsible for Customer’s and Authorized Users’ use of the Platform and Services, including responsibility for any use of the Platform that is in violation of this Agreement, applicable laws, regulations, Customer’s policies and/or any Ancillary Agreements and (iv) for obtaining any necessary consents required under applicable laws and regulations related to any Customer Data or Personal Data.  Customer will indemnify Supra for any claims arising out of failure to obtain the necessary consents required to process Customer Data or Personal Data.

2.4 General Restrictions. Customer shall not (and shall not permit any third party including its Authorized Users to): (a) make the Platform and Services available to anyone other than Authorized Users without Supra’s express written consent (b) sell, resell, rent, lease, provide access to or sublicense the Platform to a third party; (c) interfere with or disrupt the integrity or performance of the Platform or any content contained therein; (d) attempt to gain unauthorized access to the Platform or the underlying systems or networks; (e) use the Products or data derived therefrom to provide, or incorporate the Products into, any unauthorized product or service provided to a third party, or to create a competing offering; (f) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Products, except to the extent expressly permitted by applicable law (and then only upon advance notice to Supra); (g) circumvent or interfere with any technical limitations in the Products that limit or restrict access to or use of Products or any content, file, or other work, except as expressly permitted by applicable law notwithstanding this limitation; (h) degrade, impede access, copy or modify Products  or any Documentation, or create any derivative work from any of the foregoing; (i) remove or obscure any proprietary or other notices contained in the Service; (j) publicly disseminate information regarding the performance of the Products;  (k) use any Supra  or other third party name or trademarks referenced in the provision of the Products in any manner without Supra’s written consent; or (l) use the Products in a manner outside of its intended purpose.

2.5  Professional Services. Supra may provide Professional Services to Customer in accordance with a separate agreement signed by both Parties.

2.6  Customer Third-Party Services. If Customer elects to use any third-party services with the Products or Services, then Customer grants Supra permission to allow the third-party service provider to access the Products or Services as required for the interoperation of the third-party services with the Products. Supra is not responsible for any disclosure, modification or deletion of Content, Customer Data or User Data resulting from access by the Customer’s third-party service provider. Any use by Customer of a third-party service, and any exchange of data between Customer and the third-party service provider, is solely between Customer and the third-party service provider. Supra does not warrant or support third-party services or other non-Supra products or services, whether or not they are designated by Supra as “certified” or otherwise, unless expressly provided in an Order Form. Supra does not guarantee the continued availability of Products integrated with the Customer’s third-party services. If Supra reasonably forms the view that a Customer third-party service used with the Products or Services is causing or will cause Supra to violate applicable laws or third-party rights, then Supra may notify Customer and suspend the Agreement. Promptly after receipt of such notice by Customer, the Parties will meet and negotiate in good faith to resolve the issue. If within ten (10) days after receipt of such notice by Customer (or such longer period as may be agreed between the Parties, each acting reasonably) the Parties do not agree on a solution or Customer does not instruct Supra to disable the third-party service at issue, then Supra may disable such third-party service or terminate the Agreement for cause if such violation is not resolved.

SECTION 3 – PRODUCTS AND SOFTWARE

3.1  Products and Software. Subject to the terms and conditions of this Agreement, Ancillary Agreements and the applicable Order Form, Supra shall provide to Customer and its Authorized Users the Products and Software selected by Customer in the Order Form. 

3.2 License. Software licensed to Customer is limited to such Products and/or location(s) as are specified on the relevant Order Form.  All Software is licensed on a non-exclusive basis and is NOT sold.  Software remains subject to the Terms and Conditions of the then current version of the accompanying end user license agreement (each, a “EULA”) provided with the Software or available at https://buildings.honeywell.com/us/en/legal/eula.  Supra may terminate any Software license for failure to comply with terms of the foregoing EULA.  Supra grants Customer a limited, non-exclusive, non-transferable, non-assignable license to use the Software and related Documentation in connection with the use of Products provided by Supra. Unless otherwise provided in the applicable EULA, such licenses may not be sublicensed by Customer. Customer shall comply with the rules and regulations stated in the Documentation provided by Supra.  Customer further agrees that its rules for Authorized Users shall require Authorized Users to comply with the rules and regulations of online guide available to all users (“User Guide”). 

3.3 License Restrictions. Customer shall not use the Software for any purpose other than as expressly contemplated by this Agreement or EULA, and shall not provide or otherwise make available the Software or any part or copies to any third party except its Authorized Users.  The Software licenses granted to Customer under this Agreement apply only to the object code included in the Software licensed to Customer.  Customer shall not have the right to use the source code itself for any of the Software, and shall not alter, reproduce, modify, change, translate, reverse engineer, de-compile, disassemble, or prepare derivative works based on the Software.  In the event that Customer or any Authorized User violates any of its license obligations under this Agreement or EULA, Supra, upon written notice to Customer, may immediately terminate all Software licenses and access to Mobile Apps granted to Customer under this Agreement and the applicable Order Form.  In the event of a conflict between this Agreement and the EULA, the EULA shall control.

3.4  Orders.  Orders (including any revised and follow-on orders) (each, an “Order”) for Products, Software, and Services via Order Form are non-cancelable except as expressly set forth herein and will be governed by the terms of this Agreement.  All Orders are subject to acceptance or rejection by Supra.  Supra’s acknowledgment of receipt of an Order shall not constitute acceptance of such Order, and an Order is deemed to be accepted upon the earlier of (i) Supra’s written acceptance or (ii) shipment of the Products specified in the Order.  Supra’s sale of Products is expressly limited to the terms herein, save any changes that the parties explicitly agree to in any separate written agreement signed by the parties’ authorized representatives.  Any conflicting, additional, and/or different terms or conditions on Customer’s Order Form or any other instrument, agreement, or understanding are deemed to be material alterations and are rejected and not binding upon Supra. Any terms and conditions in Customer’s Order Form (including any terms incorporated in such Order Form by reference to any website hyperlink) or any other related documentation submitted by or on behalf of Customer to Supra do not form part of this Agreement and are void, unless otherwise expressly agreed in writing and signed by either Customer and Supra.  Supra’s acceptance of Customer’s Order is expressly conditioned upon Customer’s assent to the terms and conditions contained herein in their entirety. Customer’s acceptance of delivery from Supra constitutes their acceptance of these terms and conditions in their entirety. 

3.5  Change Orders.  Customer may request Supra to submit proposals for changes to the Products and Services, subject to acceptance by Supra.  Supra will inform Customer if the change causes a price adjustment.  If Customer chooses to proceed with Supra’s proposal, such changes will be authorized by a change order executed by both Parties.  

3.6 Procurement. Supra offers different procurement options related to the Products and Software and Customer is subject to additional terms and conditions.  The procurement option chosen by Customer will be stated in the applicable Order Form.

A.    Customer Lease and License Option.  Customer leases the Products and obtains a license to the Software, and subscribes to the Services itself with the intent to sub-lease, sub-license, and re-subscribe such Products, Software, and Services to its Authorized Users.

B.   Authorized User Option.  Authorized Users lease the Products, obtain a license to the Software, and subscribe to the Services directly from Supra.  Each Authorized User will be required to enter into an Ancillary Agreement with Supra.  Customer agrees that Supra may from time to time modify the form of the Ancillary Agreement.  Customer further acknowledges and agrees that because the Ancillary Agreements are terminable for convenience at any time during the term without further financial obligation by Authorized Users if they return the Products to the Customer, Supra’s investment of working capital in the Products is at risk.  Therefore, Customer agrees that Supra shall be the sole and exclusive party promoted, endorsed, and administratively supported by Customer as a provider of electronic lockbox services to its Authorized Users during the term of this Agreement, or extension thereof, and that such obligation will automatically terminate upon the expiration of this Agreement or upon early termination under Section 6.4, Termination for Convenience.  

Nothing in this Section 3.6 limits in any way Customer’s ability to negotiate during the term of this Agreement with third-parties in connection with the replacement of electronic lockbox services after the term, including early termination under Section 6.4, Termination for Convenience.

3.7   Delivery/Risk of Loss.

A. For initial deliveries, Products  will be delivered FCA destination.  Supra will arrange for shipment and will be responsible for transportation, insurance and any related charges. 

B. For subsequent purchased Products, the purchaser (whether Customer or Authorized Users) will have the responsibility for all risk of loss or damage to the Products after delivery to the applicable carrier.  Customer or Authorized Users, as applicable, will be responsible for all transportation, insurance and any related charges.

C. For leased Products, lessee (whether Customer or Authorized Users), assumes all risk of loss, theft, or material damage to the leased Products from the date of delivery to the applicable carrier until the date the leased Products are returned to Supra.  Customer or Authorized Users shall promptly notify Supra if any such loss, theft, or material damage occurs.  No loss, theft, or material damage to any leased Products, shall relieve Customer or Authorized Users of any obligation under this Agreement, except to the extent any such loss, theft, or material damage is directly caused by the gross negligence of Supra.  

3.8  Returns.  Authorization for return of Products must be obtained in writing.  Returned materials must be identified with an return material authorization (“RMA”) number provided by Supra Customer Service (if the return is authorized by Supra). The RMA number must be clearly marked on all packages. A restocking charge of twenty-five percent (25%) will apply on all material accepted for credit, provided such goods are unused and in saleable condition, in standard Supra-order multiple quantities, and have been shipped within the past twelve (12) months.  Returned materials not deemed saleable, at the sole discretion of Supra, will be disposed of or returned at Customer’s expense and no credit will be issued. Expiration-dated product, custom material, hazardous material and discontinued items are non-returnable for credit, with exceptions noted below. RMAs are valid for thirty (30) days from the date of issue. Materials returned will be disposed of or returned at Customer’s expense, and no credit will be issued. The twenty-five percent (25%) restocking charge may be waived, in Supra’s sole discretion, if accompanied by a replacement order for the same or higher value as the return. All other return terms and conditions apply.

3.9 Customer’s Administration Responsibilities. To assist Supra in its support of Customer’s Authorized Users, Customer agrees to provide certain administration services to its Authorized Users. Such support includes but is not limited to:

A. Verification of Authorized Users eligibility to use the Products, Software and Services;

B. Assignment of Products by serial number to each Authorized Users;

C. Provide Authorized Users training and assistance with related questions;

D. Consult with Supra support personnel as reasonably necessary to assist Authorized Users;

E. Enforce Supra’s User Guide’s rules and regulations and terminate Authorized Users violating such rules and regulations; 

F. Obtain the return of leased Products from Authorized Users no longer using the Services and unassign the Supra Mobile serial number;

G. Assist Authorized Users with problems and obtain Supra’s assistance as necessary if Authorized Users request warranty service; replacement of the Product and/or Software under warranty with an appropriate replacement from the items leased to or purchased by Customer if such problems cannot be cured; and assemble Products in reasonable batches (as agreed upon by Supra and Customer), obtain a RMA from Supra, and ship such Products to Supra at Customer’s expense; and

H.    Subscribe new Authorized Users. 

3.10 Changes to Products, Software and Services

A. Improvements. Supra may from time to time in its sole discretion provide Customer and/or its Authorized Users with improvements and/or modifications to the Products, Software, and/or Services (each an “Update”).  Any such Updates shall be automatically applicable to the Customer and its Authorized Users without requiring additional approval or consent from the Customer, unless explicitly stated otherwise.  

B. Discontinuance. Supra may discontinue any Product, Software or Service, upon ninety (90) days prior written notice to Customer. 

SECTION 4 - FEES AND PAYMENT

4.1 Customer Fees. Except as otherwise specified herein or in an Order Form, (i) the Customer Fees payable for the Products and Services are as set forth in the Order Form, (ii) the Fees are quoted and payable in United States dollars, (iii) payment obligations are non-cancellable, and Fees paid are non-refundable unless the Agreement is terminated for cause pursuant Section 6.3.

A.    Fee Increases at Renewal. The Fees payable for any Renewal Term (as defined in Section 6 Term and Termination) will be set forth in the Order Form. If the Order Form does not include any pricing for a Renewal Term, then Supra’s pricing  for Customer available at the date of renewal will apply. Supra may increase the fees to the then-current rate for the Service at the time of renewal. Supra will provide reasonable written notice of any fee increase upon renewal.

B.     Invoicing and Payment.  Fees will be invoiced in advance to Customer or Authorized User, if applicable, in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, Fees are due thirty (30) days from the invoice date. If any amounts invoiced hereunder are not received by Supra by the due date, then such amounts shall accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Customer is responsible for providing complete and accurate billing and contact information to Supra and notifying Supra of any changes to such information. If Customer does not notify Supra in writing of any issue that they may have with an invoice within sixty (60) days of the invoice date, then Customer is deemed to have accepted the invoice and Customer waives any right to dispute the amount of the invoice.

4.2 Authorized User Fees.  As applicable depending on the procurement model set forth in the Order Form, Authorized User shall pay Supra a Fee set forth in the Order Form for the right to use Products and Services during the Term, plus all applicable tax, tax reimbursement, and price adjustments.  Authorized Users shall pay the Fee and any applicable activation fee upon entering into an Ancillary Agreement for Products and Services.  Thereafter, Authorized User shall make all payments during the Term at the available billing frequency chosen by Authorized User.  Payments shall be made through automatic charges or debits to Authorized User’s designated account.  Authorized User shall not close, terminate, cancel, overdraw, overcharge, change, or otherwise impair Supra’s rights to automatic charges or debits to the account.  Supra reserves the right to add to or modify the available Fee payment options during the Term.

A. Account Changes.  Authorized User shall be required to notify Supra in writing and deliver a new account authorization to Supra forty-five (45) days prior to closing, terminating, canceling, or changing the account.  

B. Late Fees.  Supra may elect to receive the ongoing payments up to ten (10) days after due date, and Supra may impose a late payment charge on payments due from Authorized Users of twenty-five dollars ($25.00) for system fee payments which are not received by Supra within five (5) days after the date such payment is due.  Authorized Users may also be required to pay Supra a fee of twenty-five dollars ($25.00) for any Authorized User Fee payment that is returned unpaid or for insufficient funds or credit.

C.     EXCEPT AS OTHERWISE PROVIDED HEREIN, AUTHORIZED USER’S OBLIGATION TO MAKE PAYMENTS TO SUPRA SHALL BE ABSOLUTE, UNCONDITIONAL, NONCANCELABLE, AND INDEPENDENT, AND SHALL NOT BE SUBJECT TO ANY SETOFF, CLAIM, OR DEFENSE FOR ANY REASON, INCLUDING ANY CLAIMS KEYHOLDER MAY HAVE RELATING TO PERFORMANCE OF THE PRODUCTS OR SERVICES OR FOR ANY LOSS OR DAMAGES.

4.3 Suspension of the Service. If any undisputed charge owing by Customer or Authorized User is twenty-five (25) days or more overdue, Supra may, without limiting its other rights and remedies, suspend the Services and Software until such amounts are paid in full or terminate the Agreement. 

4.4  Customer Information. Customer agrees to provide Supra with financial information as may be reasonably requested by Supra from time to time during the term of the Agreement, including without limitation information about Customer’s current and prior net income, Customer’s current ratio of debt to equity, and Customer’s current ratio of assets to liabilities.  Customer represents and warrants that the information provided shall be true and accurate.

4.5 Taxes.  Supra’s pricing excludes all taxes (including but not limited to sales, use, excise, environmental, value-added, and other similar taxes or fees imposed on the sale or transfer of goods or provision of services under this Agreement), tariffs and duties (including, but not limited to, amounts imposed upon import of raw material or subcomponents required to manufacture the Product or perform Services, the Product(s) or bill of material thereof under any Trade Act, including, but not limited to, the Trade Expansion Act, section 232 and the Trade Act of 1974, section 301), and charges (collectively “Taxes”). Customer or Authorized User will pay all Taxes resulting from the Agreement or Supra’s performance under the Agreement, whether imposed, levied, collected, withheld, or assessed now or later. If Supra is required to impose, levy, collect, withhold, or assess any Taxes on any transaction under the Agreement, then in addition to the purchase price, Supra will invoice Customer or Authorized User for such Taxes unless, at the time of order placement, Customer or Authorized User furnishes Supra with a valid exemption certificate or other documentation sufficient to verify exemption from the Taxes, including, but not limited to, a direct pay permit. If any Taxes are required to be withheld from amounts paid or payable to Supra under this Agreement, (i) the amount due to Supra will be increased so that the amount Supra receives, net of the Taxes withheld, equals the amount Supra would have received had no Taxes been required to be withheld, (ii) Customer or Authorized User will withhold the required amount of Taxes and pay such Taxes on behalf of Supra to the relevant taxing authority in accordance with applicable law, and (iii) Customer or Authorized User will forward proof of such withholding sufficient to establish the withholding amount and recipient to Supra within sixty (60) days of payment. In no event will Supra be liable for Taxes paid or payable by Customer or Authorized User.

4.6  Product Replacement Fees.  Customer or Authorized Users will be charged a replacement fee for Products. Replacements will be like Product, which may be new or refurbished.  The replacement fee does not apply to leased Product being replaced pursuant to warranty obligations under the Agreement. Such fee will be included in the applicable Order Form.

4.7  Liquidated Damages. Customer or Authorized Users will pay a fee per unit for leased Products not returned upon the expiration or early termination of the Agreement. Such fee will be included in the applicable Order Form.

4.8 Title.  Title to leased Products will remain with Supra.  Title to the Software shall at all times remain with Supra.  Supra shall have the right to display notice of its ownership of the leased Products by affixing an identifying label on each of the leased Products, and Customer shall not remove any such label.

4.9  Hyperinflation.  The Parties acknowledge that the pricing set forth in this Agreement (the “Baseline Price”) is based on the following costs as of the Effective Date: (a) the prices of third-party Products, as well as any components and commodity raw materials used for or in the manufacture of Products (collectively, the “Materials”) that are commercially available to Supra and subject to binding quotes from suppliers valid for sixty (60) days (the “Validity Period”) and (b) applicable freight and direct labor costs. Supra may provide Customer or Authorized User with written notice of a price increase beyond the Baseline Price if, during the term of this Agreement, either of the following increases by more than five percent (5%) relative to the Baseline Price (a “Price Change”): (i) after the expiration of the Validity Period, the lowest-available price to Supra for the Materials under sub-section (a); or (ii) the energy, freight or labor costs under sub-section (b) for the manufacture or delivery of the Materials. Upon Customer’s request, Supra will provide reasonable documentation substantiating the Price Change which may include, but is not limited to, supplier notifications of price changes or invoices; published index data relating as applicable to commodities, metals, energy, electronics and labor; specific labor pool data associated with relevant manufacturing and engineering facilities and deployment sites; freight carrier rate sheets; third-party market reports from recognized industry sources; and other relevant materials substantiating the Price Change. Upon receipt of such notice, the unit price for all undelivered, affected Materials shall be adjusted to reflect the applicable Price Change, effective as of the date set forth in the notice.  Supra shall use commercially reasonable efforts to secure the lowest-available prices for freight, labor and qualified components and raw materials in the required volumes from reputable and legally-permitted sources; provided that nothing herein shall require Supra to (A) change the design or implementation of a project, (B) change any Product design, type, or location of manufacture, or (C) purchase any excess volume or agree to any commitment outside the ordinary course of business (including, without limitation, any minimum-volume, exclusive or long-term supply commitment) to secure pricing.  Any Price Changes, as well as the timing, effectiveness, and method of determination thereof, will be separate from and in addition to any changes to pricing that are affected by any other provisions in this Agreement. Nothing herein shall limit (i) the applicability of Section 14.6 (Force Majeure) to any set of events or circumstances or the ability of either Party to invoke the remedies associated therewith; or (ii) Customer or Authorized User’s responsibility to reimburse Supra for expedited or non-standard shipping and any special routing, packing, labelling, handling, or insurance requested by Customer and/or Authorized User.

SECTION 5 – INTELLECTUAL PROPERTY

Supra Reservation of Rights. 

 Notwithstanding anything to the contrary contained in this Agreement, Supra and its licensors have and will retain all right, title, ownership and interest in and to the Platform, Software, Products, Services, Documentation, and applicable software and systems used to provide the Platform, Products, Software and the Services, including but not limited to invention rights, patent rights, “know how,” copyrights, trade secret rights, trademark rights and other intellectual property rights.  Customer shall take no action in contravention of the foregoing, including without limitation, the filing of any application for registration of any intellectual property rights in connection with the Software. Customer shall not create or allow any liens or other encumbrances to be placed on the Software. Each third-party service provider and its licensors have and will retain all right, title and interest in and to its third-party services, documentation, and the software and systems used to provide the third-party services (including all patent, copyright, trademark, trade secret and other intellectual property rights), and all copies, modifications and derivative works of any of them.  Customer acknowledges that it is obtaining only a limited right to use the Platform, Software, Products, Services, third-party services, and Documentation. No rights are granted to Customer under this Agreement other than as expressly set forth in this Agreement. 

License by Supra for Documentation. 

 Supra grants to Customer a worldwide, non-exclusive, non-transferable, royalty-free license to use the Documentation solely for Customer’s internal business purposes associated with its use of the Products, and solely for the applicable Subscription Term. Customer will reproduce Supra's copyright notice on all copies of the Documentation. On the expiry of the applicable Subscription Term, Customer will destroy or delete all copies of the Documentation then in its possession or control.

License by Customer for Branding Elements. 

 As between the Parties, Customer and its licensors own all right, title and interest in and to its name, logos, and trademarks (“Branding Elements”). Customer grants Supra, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Branding Elements, and other intellectual property as necessary for Supra to perform, deliver, support, test, and improve the Products, and to otherwise provide the Products in accordance with this Agreement (including to Brokerages under separate agreements) and no other purpose. 

5.4  License by Customer to use Feedback. Customer grants to Supra and its Affiliates a worldwide, perpetual, irrevocable, royalty-free, transferable, sublicensable (through multiple tiers) license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Admin Users.

SECTION 6 – TERM AND TERMINATION

Term of Agreement. 

6.2Unless otherwise terminated as provided herein, the term of this Agreement commences on the Effective Date and continues for the period as stated in the applicable Order Form (the “Initial Term”) or, immediately following the Initial Term, any additional, successive one (1) year term (the “Renewal Term”). The Initial Term and the Renewal Term together refer to the “Term” herein. Customer or Supra must provide its written intent not to renew this Agreement at least sixty (60) days prior to the end of the Term. Customer’s notices of its intent not to renew shall be sent as directed by Supra.

6.2 Term of Subscriptions.  Each Subscription Term will be as specified in the applicable Order Form, unless terminated earlier in accordance with this Section 6. 

6.3 Termination for Cause. Supra may terminate this Agreement and/or any Order Form, immediately upon written notice to Customer following the occurrence of any of the following events: (a) Customer or Authorized User breaches any of its obligations and covenants under this Agreement, and such default continues for more than thirty (30) days after written notice specifying the failure to perform or breach (unless such breach is determined to be incapable of cure, determined in Supra’s sole discretion, in which case termination is effective immediately); (b) Customer fails to make any payment hereunder due within five (5) calendar days after written notice of such non-payment; (c) attempted assignment of this Agreement except as provided in the Assignment clause; (d) Customer experiences one or more of the following insolvency-related circumstances: (i) it ceases to function as a going concern or to conduct its operations in the normal course of business (including an inability to meet obligations as they mature), (ii) a receiver is appointed for its assets, (iii) bankruptcy or insolvency proceedings are brought by or against it, (iv) it makes an assignment for the benefit of creditors, or (v) there is an adverse change in Customer’s creditworthiness or an attempt to obtain protection from creditors or wind down operations; (e) Customer or any Authorized User violates the law or any of its owners, officers, principals, members, or partners is indicted or convicted on charges of felony, conversion, embezzlement, or any morally reprehensible act which could, in Supra’s sole discretion, adversely impact Supra or its Affiliates; or (f) Customer or any Authorized User engages in any conduct or practice which, in Supra’s sole discretion, could be detrimental or harmful to the good name, goodwill, and reputation of Supra and/or its Affiliates.  

6.4 Termination for Convenience.  Customer may elect to terminate this Agreement for convenience at any time during the term of the Agreement.  To terminate the Agreement for convenience, Customer shall (a) provide Supra with written notice of such election at least sixty (60) days prior to the effective date of the termination (“Termination Date”), and (b) pay Supra the invoiced amount equal to 50% of all remaining fees which Customer would have paid under existing terms and conditions in effect as of the date of the written notice through the end of the then current term end date (“Early Termination Fee”). Supra will invoice Customer for the Early Termination Fee no later than fifteen (15) days after Supra’s receipt of Customer’s written notice.  Supra will calculate the Early termination Fee based on:  (a) the terms of the Agreement; (b) user information known to Supra as of the Termination Date; and (c) the assumption that user agreements would have remained in effect through the end of the then current term. Nothing herein shall operate to terminate this Agreement before:  (a) the Termination Date; or (b) Supra’s receipt of the Early Termination Fee thirty (30) days prior to the Termination Date.  All user agreements in effect on the Termination Date will automatically terminate upon the termination of this Agreement.

6.5  of Termination.  Termination does not affect any amounts due, debt, claim, or cause of action accruing to any Party against the other before termination.  Upon termination or expiry: (a) Customer must pay all amounts due; and (b) if requested, return or destroy all Confidential Information and certify the same in writing; except for automatically generated backup copies, Anonymized Data, or if maintained for legal purposes.  The rights of termination provided in this clause are not exclusive of other remedies that a Party may be entitled to under this Agreement or in law or equity, including payment for Products, Software, and Services performed and for losses sustained for materials, tools, reasonable overhead, profit, and applicable damages.  

6.6 Suspension. Supra may suspend the Agreement if Supra believes the suspension is reasonably needed to prevent unauthorized access to the Platform, if Supra determines that performance may violate the law and/or cause a safety, security, or health risk, or to otherwise protect Supra’s systems or other customers. In such circumstances, Supra will give as much notice as reasonably possible before Supra suspends, except where Supra reasonably believes that it needs to suspend immediately. Supra may also suspend the Agreement following five (5) days’ written notice to Customer if Customer or an Admin User is in material breach of this Agreement. A suspension will remain in effect only for so long as the condition or need exists. 

SECTION 7 - DATA PRIVACY

7.1 Compliance. Each Party will process the Personal Data of the other as an independent Data Controller in accordance with Applicable Data Privacy Laws. Each Party represents that it has all rights and authorizations to transfer the Personal Data to the other Party (including providing notice). 

7.1 SCCs. To the extent required by Applicable Data Privacy Laws, each Party agrees to be bound by the terms of the Standard Contractual Clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 (including the provisions in Module 1) and the UK’s International Data Transfer Addendum to the EU Commission Standard Contractual Clauses made under s119A(i) of the UK’s Data Protection Act 2018 (“Controller SCCs”) in its capacity as “data exporter” or “data importer”, as applicable, and as those terms are defined therein. The Controller SCCs will be deemed to have been signed by each Party and are hereby incorporated by reference into the Agreement in their entirety as if set out in full as an annex to this Agreement. The parties acknowledge that the information required to be provided in the appendices to the Controller SCCs is set out at https://www.honeywell.com/us/en/company/data-privacy. Each Party will implement appropriate technical and organizational measures to protect Personal Data against any security breaches. If there is a conflict between this Agreement and the Controller SCCs, the Controller SCCs will prevail. Where applicable law requires changes to the Controller SCCs, those changes will be deemed to have been made without further action from the parties. 

7.2 DPA.  If Supra processes Personal Data on Company’s behalf, the Honeywell Data Processing Agreement for Customers at https://www.honeywell.com/us/en/company/data-privacy  shall apply.

SECTION 8 - DATA TRANSFER AND USE

8.1 License to Customer Data.  Customer hereby grants Supra a limited, non-exclusive, non-transferable, worldwide license during the Term (as defined below) to access, collect, store, process, and use Customer Data or data from Authorized Users (“Authorized User Data”) solely to (a) perform Supra’s obligations and exercise its rights under this Agreement and any Ancillary Agreements, including providing, maintaining, and supporting the Products, Software, and Services and (b) analyze, improve, and develop the Products, Software, Services, and related offerings provided under this Agreement, subject to the limitations set forth herein.  As between the Parties, Customer retains all right, title, and interest in and to Customer Data and Authorized Users retain all rights, title, and interest in and to Authorized User Data.  Nothing in this Agreement shall be construed as transferring ownership of Customer Data and/or Authorized User Data (together, “Data”) to Supra. 

8.2 Use of the Data.  The Parties agree that the use of Customer Data or Authorized User Data (together, “Data”) by Supra, regardless of format, medium, form, or appearance, shall be governed as follows:

A. Service Data. Supra uses Customer Data, Authorized User Data and usage data collected by the Platform and Services in an anonymized and de-identified form (“Service Data”). Supra may combine the Service Data with that of other customers. Supra may use the Service Data to perform, deliver, support, test and improve the Products, Software, and Services, to develop new products and services, to understand usage, and for any other Supra business purposes, subject to applicable law. 

B. Software and Hardware.  Supra may develop and provide to Customer and Authorized Users software and hardware tools that utilize the Service Data, for use in Customers and Authorized Users’ businesses.

C.Limitations.  Supra may not directly or indirectly reproduce, publish, disclose, assign, sell, or otherwise transfer the Data or cause or permit any of the Data to be reproduced, published, disclosed, assigned, sold, or otherwise transferred other than for the purpose of providing the Products, Software, and Services nor may Supra receive any form of compensation based solely on the value of the Data.  Notwithstanding the foregoing, Supra is authorized to receive compensation from Authorized Users for Products, Software, and Services that utilize the Data, pursuant to agreements as contemplated in the Agreement.  For the sake of clarity, this Section shall not apply to Supra Data (as defined below).

8.3 License Regarding Third Party Service Content.  Customer grants to Supra, and to the subcontractors utilized by Supra for the provision of the Products, Software, and Services, a limited, non-exclusive, non-transferable, non-assignable license at no charge (a) to transfer electronically the applicable Third Party Service Content from Customer’s database(s) and/or from database(s) of a third party partner or third-party service chosen by Customer in its sole discretion, to databases maintained and operated by Supra and/or its subcontractors (b) to use and/or publish the Third Party Service Content in performance of the Products, Software, and Services, subject to the limitations set forth herein and any agreement with the third-party service provider. Customer represents that it has all rights in and to the Third Party Service Content or has received authorization and required consents to transfer the Third Party Service Content to Supra. Supra may reformat, alter the appearance of, and manipulate the The Third Party Service Content as reasonably necessary for the development and delivery of the Products, Software, and Services; provided, however, Supra shall not acquire any ownership right, title or interest in the Third Party Service Content or any derivative thereof as a result of any reformatting, alteration or other change to the Third Party Service Content or the appearance of the Third Party Service Content.  Neither Supra nor its Affiliates have the right to use the Third Party Service Content or any derivative thereof except those limited rights expressly granted herein.

8.4 Supra Data.  Any information or data collected (except for the Third Party Service Content provided by Customer under this Agreement) or generated through the Products, Software, and Services, including but not limited to usage information, such as data collected from Authorized Users through the Platform or Services, or any aggregated or derived information or data is the property of Supra (“Supra Data”). To the extent that the Products, Software, and Services provide Customer or Authorized Users (or Authorized Users customers or clients) with the Supra Data, neither Customer, Authorized Users nor Authorized Users’ customers or clients shall acquire any right, title or interest in the Supra Data or any derivative thereof.   

8.5 Data Definition and Transfer.  

A. Data Definition.  The format and content of the Data will be determined by Customer during the Data definition process conducted with Supra’s Field Engineering group (the “Data Definition Process”).  The Data Definition Process will allow Customer to configure the Data to best fit Customer’s MLS data. 

B. Data Transfer to Supra.  Customer agrees to provide the Data to Supra by way of a mutually agreeable  transfer method such as, RESO WebAPI or other permissible data technology standard accepted in the real estate industry.  Supra may elect to offer additional transfer methods at its sole discretion. The Data shall be transferred to and stored in servers located in the United States or in other locations as determined by Supra.

C. Data Fees.  Any fees charged by Customer’s vendor or third-party service provider for either initial file setup or recurring file delivery will be the responsibility of Customer. 

D. Change Notices.  Any notice required or permitted to be given hereunder shall be sent to implementation specialists via email unless otherwise stated.

E. Change of Transfer Method, MLS Vendor, Data Definition, Change to Structure.  Should Supra elect to offer additional transfer methods, Customer may change its transfer method by providing Supra with no less than ninety (90) days’ prior written notice of such election in order to continue uninterrupted Supra’s provision of current information to the Platform or devices. In addition, Customer shall provide Supra with at least ninety (90) days’ prior written notice of a change in MLS vendor, Data definition, or conversion to a new MLS program.  Supra is not responsible for its inability to provide data in a timely manner should Customer provide less than ninety (90) days prior notice.  During the term of the Agreement, Supra will perform at no charge one complete data re-mapping that is necessitated by a change in (a) data transfer method, (b) MLS vendor, or (c) MLS program.  Subsequent data re-mapping necessitated by changes to the Customer’s data transfer method, MLS vendor, or MLS program will be made at Supra’s then current billable work rate.  Changes made to Customer’s data definition, from the data definition utilized during the Data Definition Process, will be made at Supra’s then current billable work rate.  Notwithstanding the foregoing, during the term of the Agreement, Supra will provide Customer with ten (10) hours of Data programming service at no charge, which will be applied at the time of the first billable change request.

8.5 Security.  Each Party shall implement and maintain appropriate technical and organizational measures to ensure the security of the other Party’s data which efforts in any event shall be no less extensive and shall include measures no less effective, than those each Party takes or employs in order to ensure the security of its own business and financial information.  Each Party will notify the other Party in writing without undue delay after becoming aware of a Security Incident.  Each Party’s notification to the other Party of a Security Incident will not be deemed an acknowledgment of fault or liability.  Upon receipt of any such notice, the Parties will cooperate in good faith to investigate, contain, and remediate the Security Incident.  The Party responsible for the affected system will use commercially reasonable efforts to (a) take all reasonable steps to mitigate harm, (b) preserve relevant forensic evidence, (c) provide timely updates on the investigation, and (d) cooperate with the other Party’s reasonable requests for information needed to satisfy the other Party’s own legal, regulatory, or contractual notification obligations.  Neither Party will make any public statement identifying the other Party in connection with a Security Incident without prior written consent (not to be unreasonably withheld or delayed where required by applicable law or regulation). 

SECTION 9 - WARRANTIES

9.1  Warranties

A.    Services. Services shall be performed in a professional and workmanlike manner warranted for sixty (60) days from the date services are performed (the “Service Warranty Period”).  Supra’s obligation and Customer’s sole remedy under this warranty is that Supra will correct or re-perform defective services, at Supra’s sole election, if Customer notifies Supra in writing of defective Services within the Service Warranty Period.  All Services reperformed are warranted for the remainder of the original Service Warranty Period.

B.     Products. Subject to compliance with this Section, Supra warrants that the Products, excluding Software, will be free from defects in workmanship and materials for the length of the Initial Term (the “Warranty Period”). This limited warranty does not cover defects caused by normal wear and tear or maintenance. Supra’s sole liability and Customer’s exclusive remedy, which shall be determined in Supra’s sole discretion, is limited to replacement or repair of the relevant Product(s) or a credit for the purchase price of the relevant Product, less depreciation. The Warranty Period does not restart for replacement Products, and any replacement Products will only be warranted for the remainder of the original Warranty Period, if any.  If, during the applicable Warranty Period, Customer believes there is a defect in material or workmanship covered by the relevant Product warranty, Customer must immediately discontinue use and notify Supra. Written authorization from Supra must be obtained prior to returning any Product(s) to Supra for warranty assessment. Return shipments and insurance must be prepaid by Customer must be appropriately packed and must be made within thirty (30) days after Customer identifies or should have identified the defect. Upon receipt of any such Product during the applicable Warranty Period, Supra shall, at its expense, (i) examine the Product to verify the alleged defect or (ii) in Supra’s sole discretion, credit Customer or repair or replace any defective Product, including shipment of such replacement or repaired Product back to Customer (at Supra’s expense). Supra will credit Customer for its return shipping costs for any defective Products, but Customer will be responsible for paying any customs or import duties payable upon receipt of any repaired or replacement Products and also paying Supra a standard testing charge for any Products not found to be defective.

C.     Software. Supra warrants that as of the date of delivery by Supra, the Software will materially operate according to Supra’s then-current applicable Documentation through the Warranty Period. If within the Warranty Period Customer documents and notifies Supra that the Software does not meet this warranty, then Supra will, at its option, either (a) correct the defect or error in the Software, free of charge, (b) make available to Customer satisfactory substitute software, or (c) if none of the foregoing is in Supra’s opinion commercially reasonable, refund to Customer all payments made as license fees for such Software after Customer certifies in writing that it has returned or deleted all copies of the Software in its possession. This Section sets out Supra’s sole obligation and exclusive liability, and Customer’s sole remedy, for any breach by Supra of the foregoing warranty.

9.2  Warranty Disclaimers

The warranties set forth herein do not extend to any damage or malfunction caused by accident, abuse, neglect, or misuse by the Customer, its Authorized Users, or any third party.  Customer shall not cause or allow any Product or Software to be altered, modified or repaired without Supra’s prior written consent.  EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT OR ANCILLARY AGREEMENTS, THE PRODUCTS, SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SUPRA IS NOT RESPONSIBLE OR LIABLE FOR CUSTOMER’S (OR CUSTOMER’S AUTHORIZED USERS) USE OF THE PRODUCTS, SOFTWARE AND SERVICES, OR USE OR INTERPRETATION OF THEIR OUTPUT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SUPRA EXPRESSLY DISCLAIMS ALL CONDITIONS, WARRANTIES, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING THE PRODUCTS, SOFTWARE AND SERVICES, INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR PURPOSE. NOTWITHSTANDING THE FOREGOING, SUPRA MAKES NO WARRANTY THAT THE OFFERINGS WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, OR BE ERROR FREE. CUSTOMER ACKNOWLEDGES THAT THE PRODUCTS, SOFTWARE AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN SUCH RESULTS, DATA, OR INFORMATION COULD LEAD TO INJURY, ILLNESS, DEATH, PERSONAL INJURY, BUSINESS INTERRUPTION, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

9.3 Product Purpose and Disclaimer

CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PRODUCTS, SOFTWARE AND/OR SERVICES SEPARATELY OR IN COMBINATION ARE NOT A SECURITY SYSTEM.  SUPRA’S PRODUCTS, SOFTWARE AND SERVICES ARE NEITHER ALARMED NOR CAN THEY PREVENT ENTRY INTO A LOCATION.  THE PRODUCTS, SOFTWARE AND/OR SERVICES ARE SOLD AS A MARKETING CONVENIENCE KEY CONTROL INFORMATION AND PRODUCTIVITY SYSTEM ONLY. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT ANY DISCLOSURE OF AUTHORIZED USER PERSONAL IDENTIFICATION NUMBERS, OR ANY ABUSE OR MISUSE OF THE SERVICE OR OTHER SUPRA PRODUCT OR SERVICE USED IN CONNECTION WITH THE PRODUCTS, SOFTWARE AND/OR SERVICES MAY COMPROMISE THE SECURITY OF THE PRODUCTS, SOFTWARE, AND SERVICES.  CUSTOMER SHALL MAKE ALL REASONABLE EFFORTS TO MAINTAIN THE SECURITY OF THE PRODUCTS, SOFTWARE, AND SERVICES. SUPRA IS NOT RESPONSIBLE AND SHALL HAVE NO LIABILITY FOR ANY ISSUES, PROBLEMS, UNAVAILABILITY, DELAY OR SECURITY INCIDENTS ARISING FROM OR RELATED TO: (A) CYBERATTACK; (B) THE PUBLIC INTERNET AND COMMUNICATIONS NETWORK; (C) DATA, SOFTWARE, HARDWARE, SERVICES, TELECOMMUNICATIONS, INFRASTRUCTURE OR NETWORKING EQUIPMENT NOT PROVIDED BY SUPRA, OR ACTS OR OMISSIONS OF THIRD PARTIES NOT UNDER SUPRA’S CONTROL; (D) CUSTOMER’S NEGLIGENCE, OR THE NEGLIGENCE OF ANY USER, OR THE FAILURE OF ANY AUTHORIZED USER TO FOLLOW PUBLISHED DOCUMENTATION; (E) MODIFICATIONS OR ALTERATIONS NOT MADE BY SUPRA; (F) LOSS OR CORRUPTION OF DATA; (G) UNAUTHORIZED ACCESS VIA ADMIN USER OR AUTHORIZED USER’S CREDENTIALS; OR (H) CUSTOMER’S FAILURE TO USE COMMERCIALLY REASONABLE ADMINISTRATIVE, PHYSICAL AND TECHNICAL SAFEGUARDS TO PROTECT ITS SYSTEMS OR DATA OR FOLLOW INDUSTRY-STANDARD SECURITY PRACTICES.

SECTION 10 – INDEMNIFICATION

10.1 General Indemnity. In addition to the other indemnification obligations set forth herein, Customer will indemnify, defend, and hold Supra and its related entities (including, without limitation, their respective directors, officers, employees, and representatives) (collectively, “Supra Indemnitees”) harmless against third-party allegations, claims, damages, settlements, penalties and costs, including without limitation attorneys’ fees (collectively, “Claims”) arising out of Customer or any Authorized User’s: (a) breach of the terms of this Agreement and/or Ancillary Agreements, (b) use or misuse of the Products, Software, or Services which do not comply with the Documentation, (c) modifications to the Products, Software or Services not authorized by Supra, (d) negligence or willful misconduct due to any act or omission under this Agreement, or (e) breach of its obligations under this Agreement. In connection with these indemnification obligations, Customer agrees to the following “Indemnification Procedures”: (a) Customer will be entitled to control the defense and Supra shall give prompt notice of any such claim; (b) at Customer’s expense, Supra will reasonably cooperate in defense of the claim including, but not limited to, promptly furnishing Customer with all relevant information within its possession or control; (c) Supra may participate in the defense at its own expense and through counsel of its choosing; and (d) Customer may not enter into any settlement, assume any obligation, or make any concession without the prior written approval of Supra, which approval may not be unreasonably withheld, conditioned or delayed.

10.2 Supra Indemnity. Supra will defend Customer, its Affiliates, and subcontractors against any third-party suit alleging that Customer’s use of the Products, Software and Services directly infringes any United States third-party patent or copyright, and will pay for any final judgment awarded by a court of competent jurisdiction assessed against Customer resulting from such suit; provided that Customer promptly notifies Supra when it is apprised of the claim and provides complete authority, information, and assistance (at Supra’s expense) as to the defense and disposition via counsel of Supra’s choice. Supra will not be responsible for any compromise, settlement, attorneys’ fees, expenses, damages, or costs incurred by Customer without Supra’s involvement and prior, written consent. Supra has no obligation or liability for claims arising out of the following: (a) Products, Software and Services made to Customer’s designs, drawings, or specifications; (b) use of Products, Software and Services in any process or in any manner not supported by the applicable Documentation; (c) combination or use of any Products, Software and Services with materials not furnished by Supra; (d) use of a version of any Software other than the current version; (e) data Customer provides; (f) Customer’s use of the outputs of the Products, Software and Services; (g) any alteration, customization, or other modification of the Products, Software and Services other than by Supra; or (h) damages based on a theory of liability other than infringement by the Products, Software and Services. Further, Customer agrees to defend, indemnify and hold the Supra Indemnitees harmless against any claim of infringement resulting from those circumstances set forth in subparagraphs (a)-(h) of this Section, as per the Indemnification Procedures in Section 10.1. If a claim of infringement is made for which Supra has indemnification obligations or if Supra believes that such a claim is likely, Supra may, at its sole option and expense, (i) procure for Customer the right to continue using the Products, Software and Services or obtain a license to a reasonable substitute; (ii) replace or modify the Products, Software and Services so that it is non-infringing; or (iii) in the case of Products and Software, require Customer to return the Product (and terminate Customer’s license to the Software) in exchange for a credit of the purchase price or license fee, less reasonable depreciation and pro-ration of license fees for Software use. Further, Supra may cease shipping Products and Software it believes may be subject to a claim of infringement without being in breach of this Agreement. If the final judgment assessed against Customer is based on the revenue generated from the use of the Products, Software and Services, as opposed to from the sale of the Products, Software and Services by Supra to Customer (whether alone or in combination with any article or service not furnished by Supra), then Supra’s liability under this indemnity, exclusive of defense costs, shall be limited to a reasonable royalty based on the contract price paid by Customer to Supra for the Products, Software and Services that gave rise to the claim. This Section shall be subject to Supra’s rights under LIMITATION OF LIABILITY of this Agreement. THIS PROVISION STATES THE PARTIES’ ENTIRE LIABILITY, SOLE RECOURSE, AND THEIR EXCLUSIVE REMEDIES WITH RESPECT TO CLAIMS OF IP INFRINGEMENT. ALL OTHER WARRANTIES AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, STATUTORY, EXPRESS, IMPLIED, OR OTHER, ARE HEREBY DISCLAIMED.

SECTION 11 – LIMITATION OF LIABILITY

11.1  EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT OR FOR CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE FOR (a) LOST PROFITS, REVENUES, GOODWILL, OPPORTUNITY OR ANTICIPATED SAVINGS, LOSS OR CORRUPTION OF DATA OR LOSS OF USE OF PROPERTY; OR (b) INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.

11.2 EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT OR FOR CUSTOMER’S PAYMENT OBLIGATIONS OR FOR EXCLUSIONS (AS DEFINED BELOW), EACH PARTY’S CUMULATIVE AND AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT EQUAL TO THE GREATER OF: (a) THE TOTAL AMOUNTS PAID FOR THE OFFERING THAT GAVE RISE TO LIABILITY DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM OR (b) U.S. $50,000. ALL CLAIMS THAT A PARTY MAY HAVE WILL BE AGGREGATED, AND MULTIPLE CLAIMS WILL NOT ENLARGE THE FOREGOING LIMIT. NOTWITHSTANDING THE FOREGOING, SUPRA’S LIABILITY UNDER EVALUATION, BETA, OR TRIAL RIGHTS IS LIMITED TO U.S. $1,000. THE LIMITATIONS AND EXCLUSIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW TO ANY DAMAGES OR OTHER LIABILITY, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE LIABILITY OR THE LIABILITY IS OTHERWISE FORESEEABLE, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

11.3 “Exclusions” are: (i) a Party’s gross negligence or willful misconduct; (ii) a Party’s breach of confidentiality obligations (except regarding Personal Data, Input Data or Customer Specific Data (if referenced in this Agreement)); (iii) Section 12 (Compliance) or (iii) breach by Customer of any Products, Software and Services license, use rights or acceptable use terms.  All claims and causes of action must be brought by Customer within twelve (12) months of actual or constructive knowledge.

SECTION 12 - COMPLIANCE

12.1 Code of Conduct. Each Party will comply with all laws, orders, rules, regulations and ordinances and Honeywell’s Code of Business Conduct (“Code”) in performing this Agreement. A copy of the Code may be obtained at http://hwll.co/CodeOfConduct. Each Party agrees to abide by the Code and maintain an integrity and compliance program that encompasses at a minimum the standards of business conduct set forth in the Code and that effectively prevents and corrects ethical violations and maintains compliance with laws. Each Party and its employees, agents, representatives and subcontractors have not made or received, and will not make or receive, directly or indirectly, any payments, loans, gifts, favors or other special consideration or form of compensation (a) to or from each other, to its employees, agents or representatives, other than payments set forth in this Agreement or other written contractual agreement between Customer and Supra; or (b) to or from any third party for the purpose of influencing the performance by Customer or Supra of its respective duties hereunder. Each Party warrants and represents it has and will comply with the U.S. Foreign Corrupt Practices Act (“FCPA”), UK Bribery Act, EU and similar anti-bribery legislation or requirements. A breach of this provision will be deemed a material breach of this Agreement and grounds for termination of this Agreement. Each Party acknowledges that in the event of a breach of its obligations, warranties and representations under this section, the other Party may suffer damage to its reputation and loss of business which is incapable of accurate estimation.  

12.2 Sanctions Compliance. Customer represents, warrants, that:

A.    It is not a “Sanctioned Person,” meaning any individual or entity: (i) named on a governmental denied party or restricted list, including but not limited to: the Office of Foreign Assets Control (“OFAC”) list of Specially Designated Nationals and Blocked Persons (“SDN List”), the OFAC Sectoral Sanctions Identifications List (“SSI List”), or any other sanctions list administered by the United States, the European Union, and its Member States, the United Kingdom, Switzerland, Canada, Australia, or the United Nations (“Sanctions Laws”); (ii) organized under the laws of, ordinarily resident in, or physically located in a jurisdiction subject to comprehensive sanctions administered by OFAC (currently Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk People’s Republic, or Luhansk People’s Republic regions) (“Sanctioned Jurisdictions”); (iii) owned or controlled, directly or indirectly, 50% or more in the aggregate by one or more of any of the foregoing; and/or (4) organized under the laws of, ordinarily resident in, or located in an unauthorized jurisdiction, including Russia; Belarus; and the Zaporizhzhia and Kherson regions (“Unauthorized Jurisdictions”).

B.     Relating to the utilization of Supra Products, Software, Services, proprietary information, and technology, both parties will comply with all Sanctions Laws. Customer will not, directly or indirectly, sell, export, re-export, divert, use, or otherwise transfer any Supra products, technology, software, or proprietary information: (i) to or for any Sanctioned Persons; or to, for, or involving Sanctioned Jurisdictions, Russia, or Belarus; or (ii) for any other purposes prohibited by any Sanctions Laws. Supra will not source any components, technology, software, or data from any Sanctioned Persons, Sanctioned Jurisdictions or Unauthorized Jurisdictions in contravention of any Sanctions Laws. To the extent applicable, Customer agrees to comply with any government authorization under Sanctions Laws, including any authorization issued by OFAC in all activities involving Supra products, technology, software, or proprietary information. Specifically, Customer agrees not to remove, extract, disassemble, or otherwise disassociate any Supra products, technology, software, or proprietary information and store, sell, export, re-export, divert, or otherwise transfer any Honeywell products, technology, software or proprietary information in, within, from, or to a Sanctioned or Unauthorized Jurisdiction.

C.     Customer is responsible for conducting on-going screening and monitoring and ensuring all Authorized Users or other involved third parties are not Sanctioned Persons. Customer is responsible for flowing down the obligations of this clause to all Authorized Users and/or other involved third parties, as applicable.

D.    The Parties and Authorized Users’ failure to comply with this provision will be deemed a material breach of this Agreement, and the Parties will notify the other Party immediately if it or any Authorized User violates, or reasonably believes that it will violate, any terms of this Section. The Parties may take any and all actions required to ensure full compliance with all Sanctions Laws without the other Party incurring any liability.

12.3 Export and Import Compliance. Each Party will comply with all export laws and regulations of all countries involved in transactions associated with this Agreement.  In this Import and Export Compliance clause, “Technical Information” means any information which is necessary for one or more of the following activities: design, development, production, manufacture, assembly, installation, operation, repair, overhaul, testing, refurbishing, maintaining, or modifying a commodity (i.e., hardware, material) or software.  If the receiving Party receives hardware, Technical Information, manufacturing drawings, specifications, software or similar type items from the disclosing Party, it is the responsibility of the receiving Party to ensure compliance with all U.S. export laws and regulations, as well as all applicable local export laws and regulations if the receiving Party is located outside the U.S., in the performance under this Agreement. These laws include, but are not limited to, (a) Section 38 of the Arms Export Control Act as enumerated in 22 CFR Parts 120-130, the International Traffic in Arms Regulations (“ITAR”), and (b) Export Control Reform Act of 2018, as amended in 15 CFR Parts 730-774 of the Export Administration Regulations (“EAR”), and all applicable local export laws and regulations if the receiving Party is located outside the U.S. No hardware, Technical Information, manufacturing drawings, specifications, software or similar type items whose export is controlled by the U.S. Department of State or the U.S. Department of Commerce will be transferred, disclosed or exported to “Foreign Persons,” not otherwise authorized, as defined in the above-stated laws and regulations, without specifically obtaining approvals from the U.S. Department of State’s Office of Defense Trade Controls or from the U.S. Department of Commerce’s Bureau of Industry and Security, as required.

12.4 EU WEEE Directive. To the extent applicable, Customer agrees to comply with the European WEEE Directive 2012/19/EU or any other applicable law or regulation concerning the financing and Customer of the disposal of waste electrical and electronic equipment, including responsibility for (i) all costs and liabilities associated with recycling Products, (ii) the collection of Products and their return, in accordance with all country-specific applicable laws and regulations. Customer shall indemnify Supra for all such costs and upon reasonable evidence of Supra having to incur any such costs. Customer shall reimburse Supra within thirty (30) days of receipt of an invoice regarding the same.

12.5         Non-Compliance. Failure to comply with this provision will be deemed a material breach of this Agreement, and Customer will notify Supra immediately if it violates, or reasonably believes that it will violate, any terms of this provision. Customer agrees that Supra may take any and all actions required to ensure full compliance with all applicable laws, including Sanctions Laws, Export/Import Control Laws, and anti-corruption laws, without Supra incurring any liability.

SECTION 13 – CONFIDENTIALITY

13.1 Confidentiality.  Supra may provide Customer certain information during the performance or fulfillment of this Agreement that is not generally known, including financial information, trade secrets, know-how, product data, samples, techniques, specifications, drawings, designs, design concepts, processes, and testing methodologies (“Confidential Information”). All Confidential Information provided in connection with this Agreement shall remain the property of Supra, shall be used only for the purpose of furthering the matters contemplated by this Agreement, and shall be protected as confidential by Customer using the same degree of care as it uses to protect its own confidential information of a similar type, but no less than a reasonable degree of care, for a period of three (3) years following the date of disclosure. These obligations shall not apply to business contact information or other information which is: (a) publicly known at the time of disclosure or becomes publicly known through no fault of Customer, (b) already known to Customer at the time of disclosure through no wrongful act of Customer, (c) received from a third party without restrictions similar to those in this Section, or (d) independently developed by Customer. Customer may not disclose Confidential Information without the prior written consent of Supra, provided, however, that Customer may disclose Confidential Information (i) to its Affiliates, employees, officers, consultants, agents, and contractors for the purposes of discharging this Agreement and complying with its legal obligations, and (ii) in response to a court order, government request, or other legally required request where it (A) provides Supra with sufficient notice and an opportunity to object to such disclosure (where possible) and (B) makes the disclosure subject to a protective order or other similar confidentiality restrictions. After termination or expiration of this Agreement and upon written request of Supra, Customer will return or destroy all Confidential Information and all copies thereof, except for any Confidential Information that exists only as part of regularly generated electronic backup data or archive data, the destruction of which is not reasonably practicable.

13.2 Equitable Relief. The Parties acknowledge and agree that a breach of the provisions of this Section shall be a material breach of this Agreement and give rise to continuing irreparable injury to the owner of the disclosed or misused Confidential Information that cannot be adequately compensated through damages.  Therefore, notwithstanding the provisions of 14.7, Dispute Resolution, the owner of the disclosed or misused Confidential Information shall be entitled to injunctive relief in a court of competent jurisdiction against the breach or threatened breach of the provisions of this Section, in addition to any other legal remedies that may be available.  The Party disclosing or misusing the Confidential Information hereby consents to the obtaining of such injunctive relief, without the posting of any bond.

SECTION 14 – GENERAL PROVISIONS

14.1 Entire Agreement/Amendments. This Agreement shall be effective upon execution and delivery to Supra by a duly authorized representative of Customer, provided that there are no amendments that vary this Agreement from the form of Agreement last presented in writing by Supra.  This Agreement (including any exhibits described herein) is the complete and final agreement of the parties relating to the subject matter of such Agreement and replaces and supersedes any other prior or contemporaneous verbal or written understandings or agreements.  This Agreement may be modified or amended only by a writing signed by duly authorized representatives of both parties.

14.2 Notices. Any notice required or permitted to be given hereunder shall be sent by (i) hand delivery, (ii) overnight delivery, or (iii) certified or registered mail, return receipt requested, postage prepaid, to the person and address set forth below:

For Supra:                    Honeywell Security Americas, LLC

                                    Attn:  General Manager

                                    4001 Fairview Industrial Drive SE

                                    Salem, Oregon 97302

Telephone:                     (503) 581-9101

                                    With a copy to:

                                    Honeywell Security Americas, LLC

                                    Attn: General Counsel

                                    715 Peachtree St. NE

                                    Atlanta, Georgia 30308

For Customer:               Information available in the applicable Order Form.

Either Party may, by written notice, change the address for delivery of notices.  Notices shall be deemed to have been delivered on the date of transmission if by hand delivery or electronically; one (1) day after depositing with an overnight delivery; and when received, if sent by certified or registered mail.

14.3 Successors and Assigns. Supra may assign or transfer this Agreement, and assign its rights and delegate its obligations. Customer shall not assign this Agreement, whether by merger, consolidation, operation of law or otherwise, and any attempt to do so without Supra’s prior written consent shall be null and void. This Agreement shall inure to the benefit of and be binding upon any successor or permitted assign of the parties. Without limiting the generality of the foregoing, Supra may assign this Agreement and its rights relating to payment for sales made under this Agreement without Customer’s consent and, notwithstanding any confidentiality obligations, may provide any purchaser of any such rights information and documents reasonably related to such sales, provided such purchaser has a confidentiality agreement in place with Supra that precludes disclosure of any Customer Confidential Information to any third party without Customer’s consent.

14.4 Survival.  The following sections of this Agreement, as well as any other sections, subsections, paragraphs, or subparagraphs of this Agreement or Exhibits, that by their nature should continue in force beyond the completion or termnation of this Agreement, shall survive the expiration or termination of this Agreement: Section 4.7 (Liquidated Damages); Section 5 (Intellectual Property); Section 6.5 (Effect of Termination); Section 7 (Data Privacy); Section  10.1 (Indemnification); Section 11 (Limitation of Liability); Section 12 (Compliance); Section 13 (Confidentiality); and Section 14 (General Provisions).

14.5 Independent Contractors. The relationship of the parties under this Agreement is solely that of independent contractors. Nothing in this Agreement shall be construed to create any partnership, joint venture, agency, or employer-employee relationship between Supra and Customer. Neither Party shall have any authority to bind the other in any way or to assume any obligation on behalf of the other, except as expressly agreed to in writing by the authorized representatives of both parties.

14.6 Force Majeure. Except for payment obligations, neither Party will be liable to the other for any failure to meet its obligations due to any force majeure event. Notwithstanding the prior sentence, quantities affected by this Force Majeure clause may, at the option of Supra, be eliminated from the Agreement without liability, but the Agreement will otherwise remain unaffected. A “Force Majeure Event” is any act, event, or condition which prevents the affected Party from performing its obligations under this Agreement and is beyond the reasonable control of such Party, and includes, without limitation:

A.    Delays or refusals to grant an export license or the suspension or revocation thereof,

B.     Any other acts of any government that would limit a Party’s ability to perform under this Agreement,

C.     Fires, earthquakes, floods, tropical storms, hurricanes, tornadoes, severe weather conditions, or any other acts of God,

D.    Pandemics, epidemics, quarantines, or regional medical crises,

E.     The presence of Hazardous Substances or Mold,

F.     Shortages or inability to obtain materials, equipment, energy, or components,

G.    Labor strikes or lockouts,

H.    Riots, strife, insurrection, civil disobedience, landowner disturbances, armed conflict, terrorism, or war, declared or not (or impending threat of any of the foregoing, if such threat might reasonably be expected to cause injury to people or property),

I.      Inability or refusal by Customer's directed third-party suppliers to provide Supra parts, services, manuals, or other information necessary to the products or services to be provided by Supra under this Agreement, or

J.      Any other cause beyond the non-performing Party's reasonable control.

If a Force Majeure Event causes a delay, then the date of performance will be extended by the period of time that the non-performing Party is actually delayed, or for any other period as the parties may agree in writing. When performance is excused, Supra may allocate its services or its supplies of materials and products in any manner that is fair and reasonable. However, Supra will not be obligated to obtain services, materials, or products from other sources or to allocate materials obtained by Supra from third parties for Supra’s internal use. Should any part of the system or any equipment in each case that are related to the Work be damaged by fire, water, lightning, acts of God, the presence of Hazardous Substances or Mold, third parties, or any other cause beyond the control of Supra, any repairs or replacement shall be paid for by Customer.

14.7 Dispute Resolution.   All questions or disputes arising out of or relating to this Agreement and its interpretation or enforcement (including its, breach, validity and termination), and the Parties’ relationship, rights and liabilities relating hereto, whether arising in contract or otherwise (“Dispute”), shall be governed by the laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of North Carolina.  Supra and Customer expressly agree to exclude from this Agreement the Uniform Computer Information Transactions Act and United Nations Convention on Contracts for the International Sale of Goods, 1980, and any successor thereto.  The Parties agree that the federal and state courts of the City of New York, Borough of Manhattan shall be the sole and exclusive venue for any Dispute, and the Parties hereby consent and submit to the jurisdiction for such venue. The Parties irrevocably and unconditionally waive any objection to venue of any Dispute in such court and irrevocably waive and agree not to plead or claim in any such court that any Dispute has been brought in an inconvenient forum. Customer will not bring a legal or equitable action more than one year after the cause of action arose unless a shorter period is provided by applicable law.  EACH PARTY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY RELATED TO THIS AGREEMENT.  Before the Parties initiate any dispute resolution process other than injunctive relief, the Parties must schedule a mandatory executive resolution conference to be held within thirty (30) days of receipt of the other Party’s written request. The conference must be attended by at least one executive from each Party. At the conference, each Party will present its view of the dispute in detail and the executives will enter into good faith negotiations in an attempt to resolve the dispute. If the dispute is not resolved within fifteen (15) days of the end of the conference, then either Party may pursue resolution of the dispute consistent with the other terms of this Agreement.

14.8 Severability; No Waiver. If any portion of this Agreement is held invalid or unenforceable, the remaining portions will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect the intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement, but the rest of this Agreement will remain in full force and effect. Failure to enforce or exercise any provision is not a waiver of such provision unless such waiver is specified in writing and signed by the Party against which the waiver is asserted.

14.9 Remedies. Except where expressly provided otherwise, any remedy provided for in this Agreement is non-exclusive and is in addition to all other remedies available to the parties at law, by statute, or in equity.  Except where expressly provided otherwise, all remedies shall be cumulative and may be exercised concurrently, or separately, and not deemed an election of any one remedy to the exclusion of any other.

14.10 Execution by Counterparts. The Parties may execute this Agreement in counterparts, each of which shall constitute an original for all purposes, including any copies of the same, and all duplicate counterparts will be construed together and constitute one agreement. The Parties acknowledge that they will be bound by signatures on this document which are made via electronic means (i.e., DocuSign) and which are transmitted by mail, hand delivery, facsimile and/or any other electronic method (email or otherwise) to the other Party.  Such electronic signatures will have the same binding effect as any original signature, and electronic copies will be deemed valid.   

14.11 Entire Agreement/Amendments. This Agreement shall be effective upon execution and delivery to Supra by a duly authorized representative of Customer, provided that there are no amendments that vary this Agreement from the form of Agreement last presented in writing by Supra.  This Agreement (including any exhibits described herein) is the complete and final agreement of the parties relating to the subject matter of such Agreement and replaces and supersedes any other prior or contemporaneous verbal or written understandings or agreements.  This Agreement may be modified or amended only by a writing signed by duly authorized representatives of both parties.

WHEREFORE, for good and valuable consideration, sufficiency of which is hereby acknowledged, the Parties’ authorized representatives have caused this Agreement to be executed.