Field Squared Terms of Service Agreement

Updated January 8, 2018

Effective July 31, 2015

This Terms of Service Agreement (“Terms”) is between Field Squared, Inc. (“Field Squared”) and the organization or individual accessing or using Field Squared’s Software (“Customer”). By (1) signing into the Field Squared Software, including the Field Squared mobile or desktop client applications (“Apps”); or (2) by entering into a contract(s) for use of the Software; you agree to adhere to these Terms as a Customer. If you are agreeing to these Terms for the use of the Software by an organization, you are agreeing to these Terms on behalf of the Customer and you must have the authority to bind that organization to these Terms.

Please read these Terms of use carefully before using any of Field Squared’s Software or signing the Master Service Agreement or any SOW as Customer access and use of the Software is conditioned upon its acceptance of these Terms, which attach to and become part of the Master Service Agreement. By accessing, browsing or using the Software, Customer acknowledges that it has read, understood and agrees to be bound by these Terms and to comply with all applicable laws and regulations. If Customer does not agree to these Terms, it is not authorized to use the Software. These Terms govern Customer’s use of the Software, and any content (such as text, data, information, graphics or photographs) that Field Squared may make available through the use of the Software.

Field Squared reserves the right to modify these Terms, or change or remove features of the Software. Field Squared will notify Customer of any material change(s) to these Terms by sending Customer a notice or by posting such on Field Squared’s website (www.fieldsquared.com). If Field Squared makes a material change, Customer may terminate its License to the Software within thirty (30) days of Field Squared’s notification. Customer’s continued use of Software after the date of the modification shall be deemed acceptance of the modified Terms.

These Terms, together with the Master Service Agreement, SOW, Acceptable Use Policy, and any additional terms to which the Parties have executed agreement(s) for use of the Software, constitute the entire and exclusive and final statement of the agreement between Customer and Field Squared with respect to the Software and the Parties’ engagement, and supersedes any prior agreements or negotiations between the Parties. Unless otherwise defined herein, capitalized terms shall have the same meaning as defined in the Master Service Agreement.

1. Definitions.

Unless otherwise defined here, capitulated terms in these Terms shall have the same meaning as defined in the Master Service Agreement, SOW, or the Service Level Agreement which are all attached to and incorporated herein:
(a) “Authorized Users” means employees of Customer or contractors employed by Customer to provide field services or field service management services directly to Customer who are bound by obligations of confidentiality in a written agreement between such contractor and Customer. Customer agrees to ensure such Authorized Users are subject to the same terms and conditions of use of the Software as delineated in these Terms.
(b) “API” means Application Program Interface, which is a set of routines, protocols, and tools for software applications.
(c) “Blind Data” means non-personally identifiable information resulting from Customer’s and End User’s access and use of the Services and Software, and representing only statistics, characteristics and metrics about Software operations, usage, and performance, but excluding actual Customer specific data values.
(d) “Confidential Information” means any information that is proprietary or confidential or that a Party is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a Third Party). Confidential Information may be of a technical, business or other nature (including, but not limited to, any issues or problems concerning a Party, information that relates to a Party’s technology, research, development, products, services, pricing of products and services, customers, employees, contractors, marketing plans, finances, contracts, legal affairs, or business affairs). Without limitation of any other statements, any data or other information relating to the design, architecture, specifications, features, functions, performance, operation and other characteristics of the Software and Services is Confidential Information of Field Squared, and any Customer Data is Confidential Information of Customer. However, Confidential Information shall not include the existence of these Terms or any information that: (a) is independently developed by the Recipient; (b) is acquired by the Recipient from another source without restriction as to use or disclosure; or (c) is or becomes part of the public domain through no fault or action of the Recipient.
(e) “Configuration Services” means services performed over time or in the future by Field Squared to configure, setup and customize the Software on behalf of the Customer. Configuration Services do not include integrations or interoperability with Third Party software systems or business process except where integrations services are provided to Customer by Field Squared under the terms of a SOW.
(f) “Customer Supplied Items” means any Third Party software, hardware, mobile devices, networks, cell data plans, Wi-Fi access points, computers and other items required for the successful installation, implementation, integration or use of the Software, but not supplied by Field Squared. Customer supplied items includes all Third Party Systems.
(g) “Defaulting Party” means a Party that has committed a material breach or default in the performance of any of its obligations under these Terms.
(h) “Discloser” means a Party that discloses Confidential Information to the other Party.
(i) “Documentation” means any user manuals, technical manuals, specifications, hardware configurations, operating environment, training videos or websites, and other documentation relating to the Software and Services supplied by Field Squared to Customer under these Terms.
(j) “Integration” means any connections, interoperability, data import or data export, data exchange or transfer or any interaction between the Field Squared system and any Third Party System, whether such activities are automated or manual, one way or two ways.
(k)“Insolvency Event” means in relation to a Party: (i) a Party makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or any petition or answer seeking, consenting to, or acquiescing in reorganization, arrangement, adjustment, composition, liquidation, dissolution or similar relief; or (ii) an involuntary petition in bankruptcy or other insolvency protection is filed against either Party and not dismissed within one hundred twenty (120) days thereafter.
(l) “License” means the license granted to Customer under these Terms.
(m) “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
(n) “Mark” means any name, trade name, brand, logo, service mark, trademark or trade dress of a Party.
(o) “Proprietary Rights” means any patent, copyright, trademark, trade secret or other intellectual property right protected under the laws of the United States of America or any state of the United States of America.
(q) “Recipient” means a Party that receives Confidential Information of the other Party.
(p) “Services” means the APIs, reports, automated business processes, integrations and integration engines, and back-end software and databases provided by Field Squared that do not have a front-end user interface but which the Customer will use while using the Software.
(r) “Software” means the compiled executable code for Field Squared mobile applications, Apps, web applications, servers, API’s, Services, service layers, integration services, databases, client software, configuration interfaces, web sites and backup services used for mobile workforce management and asset management, including any Updates and Upgrades to the Software provided by Field Squared under these Terms. Such Software is protected by the applicable copyright, patent, or other intellectual property rights of Field Squared or the Third Party licensor. Any use of the Software is subject to the terms of the applicable end-user or open source license agreement.
(s) “SOW” an order from Customer to Field Squared for specific Services and/or Software that is executed in writing by the Parties.
(t) “Term” means the period described in the SOW.
(u) “Terminating Party” means a Party that has given written notice to the other Party of a material breach or default in the performance of the other Party’s obligations under these Terms.
(v) “Third Party” means any person other than Field Squared or Customer.
(w) “Third Party System” means any software or hardware services, data store, file system, database, storage device or any other computing system that is provided by any party other than Field Squared, whether on premise at a Customer data center or office, or located at an off-premise location, or hosted by a cloud provider or Third Party.
(x) “Unauthorized Use” means any use, reproduction, distribution, disposition, possession, disclosure, disassembly, reverse engineer, alteration or other activity involving any Software, Documentation or Confidential Information that is not expressly authorized under the License or otherwise in writing by Field Squared.
(y) “Update” means any software patches, bug fixes or other modifications or revisions to the Software that Field Squared releases to all other Software licensee customers without additional compensation.
(z) “Upgrade” means any enhancement, upgrades or other revisions to the Software that adds new features, functionality or significant changes to the Software.

2. Services.

(a) Services. Customer will be given a Workspace to use with its Field Squared account, which will contain the Customer’s Data and which will be used by all of Customer’s Authorized Users.

(b) General Restrictions and Limitations. The License sets forth the entirety of the Customer’s rights to use, reproduce or otherwise deal with the Software, Services or Documentation. The License does not permit the Customer to (i) allow access to the Software or Services to Authorized Users in excess of the seat licenses or license subscriptions set forth in the SOW; (ii) sell, resell, on-sell, lease, or sub-license the Software; (iii) distribute the Software or Documentation outside of its authorized as Authorized Users; (iv) perform any Unauthorized Use of or perform a use of the Software that breaches these Terms; (v) except as reasonably required for backup purposes, copy the software except as permitted by Field Squared; (vi) create, write or develop any derivative software or any other software program based on the Software or any confidential information of Field Squared; (vii) take any action prohibited by the owner of the software; or (viii) remove, obscure or alter any notice of copyright, any trademark, mark, branding or marketing inclusion in the Software, Documentation or Services, unless such is included specifically in the SOW.

(c) No Third Party Use. Customer shall not provide any Third Party access to the Software, Services, APIs, apps or Documentation, with the exception of any contractors employed by Customer who are Authorized Users, and who are bound by obligations of confidentiality in a written agreement between such Third Party and Customer. Customer shall be liable for any breach of these Terms by its Authorized Users, including any contractors employed by Customer. Allowing competitors of Field Squared to access, view or otherwise deal with the Software, Documentation or Services in any way shall constitute a material breach of these Terms.

(d) Third Party Integration Access. Customer will provide Field Squared with all required logins, permissions, technical assistance and other management assistance required to perform any Integrations with Third Party Systems that are required under the terms of the SOW. Field Squared shall not be held liable and shall not be required to return any fees to Customer where Customer has failed to perform these tasks and this resulted in or contributed to the failure to deliver an Integration.

(e) Third Party Software Integrations. Customer may as part of Integrations specified in the SOW request that the Software communicate, interoperate, integrate, respond to requests from, read from, write to, or share data with a Third Party System which is not part of the Software. Any such activities will be subject to the following restrictions: (i) If Customer uses any Third Party service, Third Party contractor, systems integrator, developer or in-house software development or integration resources to connect to the Services, Software, APIs or Field Squared’s servers without using the client applications supplied by Field Squared to manipulate data, Customer assumes all responsibility for acts or omissions which lead to any kind of data loss, corruption, loss of services or any other kinds of loss which is a result of such usage, whether direct or indirect; (ii) where Third Party services or software provided by Customer or their agents are used along with Field Squared Software, the failure of such software or services, any defects in their handling of data, or other failures are the sole responsibility of Customer – Field Squared will not be required to provide any like replacements or make any changes in the event of any issues with Third Party software or Third Party Systems; (iii) Field Squared reserves the right to use intermediaries to connect to Third Party Systems where Field Squared deems it appropriate; (iv) if Field Squared uses Third Party add-on services to provide features related to routing, maps, driving directions, or weather services, the Parties agree that Fs is providing Customer access solely for its convenience and such use is at Customer’s sole discretion. Field Squared does not endorse or make any representation about such Third Party products, and since Field Squared does not control such products, Field Squared is not responsible for the content, data, malicious code, or accuracy of any such product or associated data.

(f) Data Processing. Field Squared will use, at a minimum, industry standard encryption, technical and organizational security measures to transfer, store and process Customer Data, in a way manner designed to protect the integrity and privacy of Customer Data and guard against unlawful or unauthorized access or use. “Customer Data” means any data or information belonging to Customer that is processed, stored, made available through, or otherwise used or accessed by the Software, including user accounts, contact information, location data, asset information, configuration and history data, as well as any customized forms created by Field Squared for Customer. “Customer Data” specifically excludes Blind Data.

(g) Modification of Software. Field Squared may update the Software from time to time. If there is a material reduction in the functionality of the Software as part of an update, Field Squared will notify Customer in advance by sending an email to the administrative email address associated with the Workspace.

(h) Grant of Use License. Customer, pursuant to the Master Service Agreement, has been granted a License to use the Software. The Software may be update from time to time and Customer acknowledges that functionality may change over time. Open source software or code may be embedded into the Software and contain Malicious Code for which Field Squared maintains no control over.

3. Customer Obligations.

(a) Compliance. Customer is responsible for the use of the Software and its Workspace by its Authorized Users. Customer and its Authorized Users must use the Software in compliance with these Terms and the Acceptable Use Policy. Customer agrees to ensure each Authorized User(s) is/are subject to the same terms and conditions of use of the Software as Customer. Customer will comply with all laws and regulations that may govern the Customer’s use of Software.

(b) Unauthorized Use & Access. Customer will prevent unauthorized use of the Software by its Authorized Users and will terminate any unauthorized use or access to the Software. The Software is not intended for use by persons under the age of 15 years of age. Customer will promptly notify Field Squared of any unauthorized use of the Software.

(c) Restricted Uses. Customer will not (i) sell, resell, or lease the Software; (ii) use the Software for activities where use or failure of the Software could lead to physical damage, death, or personal injury; (iii) use the Software while actively in control of a motor vehicle of any kind; or (iv) reverse engineer the Software, nor attempt nor assist anyone else to do so, unless this restriction is prohibited by law.

(d) Acceptable Use Policy. In addition to Field Squared’s online Acceptable Use Policy, Customer agree not to, and agrees to require its Authorized Users not to, misuse the Software by attempting to do any of the following: (i) Probe or test the vulnerability of the Software, (ii) circumvent or work around any of Field Squared’s security or authentication services built into the Software, (iii) disassemble or reverse engineer any portion of the Software, (iv) deliberately interfere with any other Authorized Users, Field Squared, or Field Squared’s customers, for example by sending viruses, denial-of-service attacks, flooding, spamming or mail-bombing any part of the system, (v) accessing any part of the system through a mechanism not part of Field Squared publicly supported API’s, integrations or client applications, (vi) access the data of any other company who is also using the service, except where Customer and the other company have entered into an agreement to share said data and a duly executed agreement describing this arrangement has been provided to Field Squared, (vii) continuing to access the data or another company after a data sharing agreement has been terminated by either Party, (viii) send out any information falsely identifying yourself as Field Squared, including “spoofing” or “phishing” requests, (ix) using a single user account with multiple users to circumvent account licensing within the Software, (x) use the private location information or data of Authorized Users in a way that could cause harm, could defame them, or could be used against them in any way (except where Authorized Users are being investigated for breaking the law), (xi) publish or upload materials that are unlawful or indecent, (xii) violate the law in any way including storing, saving or capturing data that’s the property of another party, defamatory, misleading or violates the privacy or infringes the rights of others. Violation of acceptable use provisions can result in the immediate suspension or access to the Software in order to protect the integrity of the Software for other customers until issues are resolved.

(e) Site Preparation. Customer is solely responsible for purchase and configuration of any on or off premise hardware or software, hosted and cloud based services, network bandwidth, data plans or Wi-Fi access, mobile devices, tables and phones, laptops, computers or other technology that will be used to access the Software or Services, in accordance with minimum specifications as defined by Field Squared.

(f) Installations. Field Squared will perform any required Configuration Services remotely. The Parties will consult and coordinate their activities to provide for the efficient, expeditious and orderly performance of the Configuration Services. Customer will provide Field Squared access and technical assistance to connect to any Third Party System required for an Integration that is included in a SOW. Field Squared will use commercially reasonable efforts to complete Configuration Services according to a mutually agreed-upon schedule, however Field Squared will not be responsible for delays caused by reasons beyond its control, including without limitation any failure by Customer to meet its obligations under these Terms.

(g) Acceptance of Configuration Services. Configuration Services will be deemed complete when Field Squared notifies the Customer that the Software has been configured to Customer’s specification pursuant to the SOW. Changes requested after this acceptance may be deemed change orders and subject to a separate fee(s).

(h) Compliance. Customer is responsible for the use of the Software by its Authorized Users: (i) Customer and its Authorized Users must use the software in compliance with these Terms, (ii) Customer will obtain from Authorized Users any consents necessary to allow Customer and Field Squared to engage in the activities described in these Terms and to allow Field Squared to provide the Software to Authorized Users, (iii) Customer will comply with all State and Federal laws and regulations that may govern the Customer’s use of Software.

4. Third-Party Software.

(a) Third Party API Usage. If Customer uses any third-party service to connect to the Field Squared API to download or upload data into the Field Squared platform, or perform any other action within the platform using the Field Squared API and Software, then (a) Field Squared will not be responsible for any act or omission of the third party, including the third party’s mishandling of the Field Squared data or services, or any loss of any kind, including data loss or otherwise, with respect to the third party services and (b) Field Squared does not warrant or support any services provided by the third party.

(b) Third Party Integrations by Field Squared. Field Squared can connect to various other cloud based API’s, databases and services at runtime to provide integrations on behalf of Customer. These services and systems are maintained by third parties and Field Squared does not warrant or support any of these other systems directly – the Customer assumes all responsibility for maintaining these third-party systems and for any defects that occur within these systems whether they are in-house or cloud based services. If Customer or a system integrator or any other party acting on behalf of Customer has configured Field Squared to connect to these third-party systems and as a result of this configuration they create errors in data or lose data as a result of their work, Field Squared will not be held responsible for these actions. If Field Squared has configured the integration on behalf of Customer, then Field Squared will be responsible for fixing any errors created by its work, but will not be held liable for any other losses of Customer except as related to fixing the data in question. Field Squared warrants that it will use industry standard encryption and data handling methods to interact with these systems, and that it will handle all data in a professional manner that a reasonable IT professional would assume would be applied to integrations of this kind, and that the data of Customer will remain confidential to Customer using the best reasonable efforts of Field Squared. Field Squared will fix at Field Squared’s own cost any data that is damaged as a direct result of a defect that occurs in the Field Squared integration with this API, but will not be responsible for any data loss not caused by its API directly. Field Squared reserves the right to use the API of third party services directly, or to use other intermediaries to connect to third party services where Field Squared deems it appropriate.

(c) Third Party Add-On Services. Where Field Squared uses third party services to provide features related to routing, driving directions, mapping or weather services, then Field Squared (a) will use any data provider or services provider of its choosing at the sole discretion of Field Squared; (b) can change service providers at any time; (c) is not responsible for the accuracy of this data. Field Squared provide these services at a significant discount to the customer and the pricing of Field Squared does not reflect providing direct warranties for these services to Authorized Users of Customer.

5. Suspension.

(a) Suspension of Authorized User Accounts by Field Squared. If an Authorized User (i) violates these Terms or the Agreement or (ii) uses the Software in a manner that Field Squared reasonably believes will cause it liability, then Field Squared may request that Customer suspend or terminate the applicable Authorized User account. If Customer fails to promptly suspend or terminate the Authorized User account, then Field Squared may do so.

(b) Security Emergencies. If there is a Security Emergency, Field Squared may suspend use of the Software. Field Squared will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. “Security Emergency” means: (i) use of the Software that does or could disrupt the Software, other customers’ use of the Software, or the infrastructure used to provide the Software; and (ii) unauthorized third-party access to the Software or to specific Workspace Data, which Field Squared is made aware of.

5. Intellectual Property Rights.(a) Reservation of Rights. Except as expressly set forth herein, these Terms does not grant (i) Field Squared any Intellectual Property Rights in Customer’s Workspace Data or (ii) Customer any Intellectual Property Rights in the Software, Apps or Field Squared trademarks and brand features. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.

(b) Limited Permission. Customer grants Field Squared only the limited rights that are reasonably necessary for Field Squared to offer the Software (e.g. hosting Workspace Data and Document Data). This permission also extends to trusted third parties Field Squared works with to offer the Software (e.g. sending emails to Authorized User’s customers via the SendGrid services).

(c) Suggestions. Field Squared may, at its discretion and for any purpose, use, modify, and incorporate into its products and services, license and sublicense, any feedback, comments, or suggestions Customer or Authorized Users send Field Squared or post in Field Squared’s forums without any obligation to Customer.

(d) Customer List. Field Squared may include Customer’s name in a list of Field Squared customers on the Field Squared website or in promotional materials.

(e) Ownership. Customer expressly acknowledges that the Software, Services, Documentation and Confidential Information of Field Squared are exclusively owned by Field Squared and that no configuration or integration of the Software or Services by Customer or its agents confers any proprietary right in the Software to Customer. Field Squared shall own all rights in any modifications or customizations to the Software and/or Services requested by the Customer. Field Squared retains ownership of all intellectual property rights in and to the Software, including copies, improvements, enhancements, derivative works and modifications thereof. Customer’s right to use the Software are limited to those expressly granted by these Terms. No other rights with respect to the Software or any related intellectual property rights are granted or implied. Field Squared may at its discretion and for any purpose, use, modify, license, and/or incorporate into the Software and Services any enhancement requests, feedback, comments, or suggestions made by Customer or Authorized Users to Field Squared, whether given directly or indirectly through any medium, without any obligation to Customer for payment.

Field Squared expressly acknowledges that Customer Data and Confidential Information of Customer are exclusively owned by Customer and involve valuable Proprietary Rights of Customer. No title to or ownership of any Customer Data or Confidential Information of Customer, is transferred to Field Squared or any other Person under these Terms. Field Squared will not make Customer Data or Confidential Information available to any Third Party. No configuration of the Software or Service or use of the Software or Services shall be considered works-for-hire under the Copyright Act.

(f) Trademarks and Trade Names. All Marks, trade names, registered designs and copyrighted works remain the property of their respective owners and neither Customer nor Field Squared will use these as part of any advertising, promotional, marketing or other materials without the prior written consent of the other; however, either Party may disclose the existence of these Terms and the other’s name for ongoing promotional purposes.

(g) Notices. Customer will include appropriate notices preserving the proprietary and intellectual property rights of Field Squared in any distribution of the Software, Services or Documentation to Authorized Users.

(h) Additional Protection of Proprietary Rights. Subject to the proceeding sections, each Party agrees to not infringe or violate the proprietary rights and confidential information of the other Party and to prevent all forms of Unauthorized Use of the system. Each Party will promptly notify the other Party of any Unauthorized Use or breach of Confidential Information that comes to its attention. Each Party agrees to take immediate steps to terminate any Unauthorized Use or breach of confidential or proprietary rights as quickly as is reasonable in the circumstances, regardless of whether such actions originate directly or indirectly from either Party or its agents.

(i) Protection of Confidential Information. Except for any license or other right expressly granted under these Terms each Party reserves any and all right, title and interest that it may have in or to any Confidential Information that it may disclose or make available to the other Party under these Terms. Recipient will protect Confidential Information of the Discloser against any Unauthorized Use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against Unauthorized Use or disclosure. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This Section should not be interpreted to prohibit use of confidential information necessary and appropriate for Field Squared and Customer to fulfill the terms of these Terms or the SOW attached. Neither Party will be liable for breach of confidentiality of Confidential Information if such Party is required by law to disclose Confidential Information to authorities under the terms of a court order, search warrant, subpoena or other similarly binding request where such Party is required by law to comply, provided that the compelled Party gives prompt notice of each such request, to the extent practicable, to the other Party so that they may seek an appropriate protective order and any disclosure is limited to only what is legally required. This Section can be waived by written consent of Discloser for individual pieces of confidential information or proprietary information as required. Discloser will be entitled to seek injunctive and other equitable relief to enforce such obligations.

(j) Software License Audit Rights. Customer shall permit Field Squared and its agents, on reasonable notice and at reasonable times and intervals during normal business hours, to audit Customer’s use of the Services to Software to verify that it is in compliance with the license fees, licensed End User account counts and Services inclusions specified in the SOW. If an audit by Field Squared discloses that Customer has used the Software or Services in excess of the licensed amounts by five percent (5%), Customer shall pay Field Squared any applicable back fees to when said over usage began, including interest at a rate of ten percent (10%) per annum on any annual fees found to be underpaid and/or overdue as a result of the audit.

(k) Data Collection. Field Squared shall have the right to utilize data capture, syndication and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze Blind Data. To the extent that Field Squared collects any Blind Data, such Blind Data shall be solely owned by Field Squared and may be used by Field Squared for any lawful business purpose without a duty of accounting to Customer, provided that the Blind Data is used only in an anonymous and aggregated form without specifically identifying the source of the Blind Data. Without assuming any obligations or liabilities of Customer, Field Squared agrees to comply with the applicable U.S. laws and regulations respecting the dissemination and use of such Blind Data.

6. Fees & Payment.

(a) Refunds. Field Squared may provide refunds and account credits where it deems in its sole discretion it is appropriate. Where the SOW specifies that there is a true-up period for licenses then (a) Customer will send, each payment period, an audit of any licenses added or removed during that period, (b) a credit or amount due will be applied to the Customer’s account, (c) such credit or amount due will be applied to the account for Customer either at the end of the payment period. In the absence of a true-up clause in the SOW, Customer will pay for any new licenses at the time such is added pro-rated for the remainder of the payment period, with the next payment adjusted to reflect the increased or decreased license counts. Reductions in license counts will be applied as a credit to the next payment due to Field Squared by Customer.

(b) Purchase Orders. If Customer requires the use of a purchase order or purchase order number, Customer (i) must provide the purchase order number at the time of purchase and (ii) agrees that any terms and conditions on a Customer purchase order are null and void and do not govern the Parties’ relationship.

7. Default.

(a) Material Breach or Default. A default shall occur under these Terms if: (a) in the case of Customer’s failure to pay any amount by the due date, Customer fails to pay that amount within ten (10) days after Field Squared notifies Customer in writing of such non-payment, (b) in the case of any other material breach of these Terms, a Party fails to cure such breach within thirty (30) days of receipt of written notice thereof; provided, however, a default shall not have occurred if the relevant Party has taken actions to cure within said time period and thereafter diligently pursues such actions to complete the cure, (c) an Insolvency Event occurs with regard to a Party.

(b) In the event of any default, the non-defaulting Party may: (a) take such actions as it determines, in its sole discretion, necessary to correct the default; (b) terminate the applicable SOW; and/or (c) pursue any legal remedies it may have under applicable law or principles of equity, including specific performance.

(c) If Customer violates any applicable laws, statutes, or other legal requirements with respect to its use of the Software or Service, or if Customer’s use of a Software interferes with or impairs any other Person’s use of Software or Service, or creates a risk of injury to any Person or property damage, Field Squared may block or suspend Customer’s use of the Software and/or Service. Field Squared will notify Customer immediately when such blockage or suspension occurs.

(d) Termination due to Material Breach. If these Terms are terminated pursuant to this Section, then unless otherwise agreed in writing: (a) the Parties will cooperate to effect an orderly, efficient, effective and expeditious termination of the Parties’ respective activities under these Terms; (b) the License and any other right granted to Customer with respect to the Software, Services or Documentation will terminate effective of the date of termination; (c) Customer will return to Field Squared any and all Software, Confidential Information of Field Squared, or Documentation in the possession or control of Customer; (d) Field Squared will return to Customer or destroy any and all Confidential Information of Customer in its control or possession, excluding any Customer Data which Field Squared will make available to Customer for export from the Software which will be deleted by Field Squared no sooner than 30 days following termination; and (e) any and all liabilities accrued prior to the effective date of the termination will survive.

8. Limited Warranties.

(a) Updates and Deliveries. Field Squared warrants that the functionality of the Software will not be materially decreased during the Term, except as provided in these Terms.

(b) Exclusions. Field Squared’s warranties do not apply to any noncompliance resulting from any: (i) Customer Supplied Items software or Third Party Software (ii) use not in accordance with these Terms (iii) modification, damage, misuse or other action of Customer or any Third Party (iv) failure of any Third Party System or Integration with a Third Party System (e) any failure of Customer to comply with these Terms or Documentation.

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

9. Compliance with Laws.

Each Party will comply with all applicable laws, rules, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction. Nothing in these Terms limits or excludes any liability that cannot be limited or excluded under applicable law.

10. Miscellaneous.

(a) Terms Modification. Field Squared may revise these Terms from time to time and the most current version will always be posted on the Field Squared website. If a revision, in Field Squared’s sole discretion, is material, Field Squared will notify Customer. By continuing to access or use the Software after revisions become effective, Customer agrees to be bound by these Terms. If Customer does not agree to the revised Terms, Customer may terminate the Software within 30 days of receiving notice of the change.

(b) Severability. Unenforceable provisions will be modified to reflect the Parties’ intention and only to the extent necessary to make them enforceable, and the remaining provisions of these Terms will remain in full effect.

(c) No Agency. These Terms, the Master Service Agreement, each SOW and the work performed hereunder and pursuant to each SOW shall not be deemed to create a joint venture, partnership or a relationship of employment between Field Squared and Customer. Furthermore, the Parties are not legal partners or agents, but are independent contractors.

(d) No Third-Party Beneficiaries. There are no third-party beneficiaries to these Terms. Without limiting these Terms, a Customer’s Authorized Users are not third-party beneficiaries to Customer’s rights under these Terms.

(e) Export Restrictions. The export and re-export of Customer Data via the Software may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The Software may not be used in Cuba; Iran; North Korea; Sudan; or Syria or any country that is subject to an embargo by the United States and Customer must not use the Software in violation of any export restriction or embargo by the United States or any other applicable jurisdiction. In addition, Customer must ensure that the Software are not provided to persons on the United States Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.

(f) Non-Waiver. Any failure by either Party to insist upon or enforce performance by the other Party of any of the provisions of these Terms or to exercise any rights or remedies under these Terms or otherwise by law will not be construed as a waiver or relinquishment of such Party’s right to assert or rely upon the provision, right, or remedy in that or any other instance; rather, the provision, right or remedy will be and remain in full force and effect.

(g) Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms (except with respect to monetary obligations) as a result of any cause or condition beyond such Party’s reasonable control. This Section will not apply to a monetary obligation of any Party.

(h) Assignment. Customer may not assign or transfer these Terms or any rights or obligations under these Terms without the written consent of Field Squared.