Terms and Conditions

1. Terms and Purchase.

These Terms and Conditions (“Terms”) apply to the invoice (the “Invoice”) sent to you (the “Buyer”) by SimpleSUB Water Inc., a Delaware corporation (“SSW”). SSW manufactures certain proprietary water sub-metering systems (the “Products”) and provides certain services related to the Products (the “Services”) and desires to sell the Products and/or Services to Buyer. Buyer desires to purchase the Products and/or Services in accordance with the Invoice and these Terms. SSW does not accept any contrary or additional terms offered by Buyer in any acceptance or other form or document. Buyer agrees to purchase the Products and Services and pay the applicable amounts for such Products and Services as specified in the Invoice. SSW agrees to sell the Products and supply the Services specified in the Invoice to the Buyer in the quantities and in exchange for the amounts as specified in the Invoice. Buyer shall not resell any Product without the prior written consent of SSW. Buyer shall pay the Purchase Price without setoff or deduction. The Total Purchase Price for Products and Services hereunder will include applicable sales taxes and shipping costs, as reflected in the Invoice. All payments shall be made in U.S. dollars.

2. Installation, Data and Website Use.

Upon purchase of Products, Buyer will create an account at app.simplesubwater.com (the “Client Portal”), and input into the Client Portal the property name and all unit numbers for properties where the Product(s) will be used (the “Properties”). Buyer will inform SSW of the type of pipe (e.g., PVC or steel) on which Buyer installs the Products. Buyer will be solely responsible to install the Products at the Properties in accordance with the Specifications (as defined below). Upon successful installation, the Products’ integrated SIM card will connect to SSW’s cellular provider and begin transmitting to SSW certain water usage data (“Usage Data”) and related Device/Network Data and Telemetry Data (as defined in Section 10), together with data as collected by the applicable Product regarding temperature, battery level, physical environment and usage, and performance of the Product (collectively with the Usage Data, “Data”). SSW has no obligation to install or perform any maintenance of the Products. SSW will use commercially reasonable efforts to make the Services available 24/7/365 basis (excluding reasonable maintenance periods), but SSW does not warrant that the Services will be available at all times, or any particular time. Buyer acknowledges that the Products, Software, and Services use or interconnect with wireless telecommunications networks, data centers, systems, and services that are owned or operated by third parties (“Third Party Services”), and that wireless communications may be subject to certain environmental limitations. Notwithstanding any provision herein to the contrary, SSW shall have no liability under these Terms due to any unavailability, degraded or delayed performance, or other errors or interruptions to the Products, Software, or Services related to: (a) Third Party Services; (b) environmental conditions or connectivity limitations of any given Property; or (c) Buyer’s failure to properly install or maintain the Products.

3. Services and Information Provided.

To receive the Services, Buyer shall provide SSW with certain information as reasonably requested by SSW, including but not limited to total water usage (consumption), applicable splitting ratios, and date ranges from each water bill for each Property (each, a “Water Bill”) as such Water Bill is received by Buyer from Buyer’s utility provider. When Buyer enters the applicable Water Bill information into the Client Portal, a spreadsheet or printable page will be available on the Client Portal that shows the water usage in each Property and the breakdown of Water Bill costs for each unit in each Property.

Alternatively, Buyer shall at regular intervals (e.g. monthly) provide certain information as requested by SSW, including but not limited to, a fixed rate for water cost and date ranges. When Buyer enters such information into the Client Portal, a spreadsheet or printable page will be available on the Client Portal that shows the water usage in each Property and the breakdown of water usage costs for each unit in each Property.

4. Payment Terms.

Unless different terms are set forth on the Invoice or agreed by the parties in writing, Buyer shall (a) within 30 days after the Effective Date of the Invoice, deliver complete payment of the Product Purchase Price; and (b) on an ongoing basis as provided in the Invoice, deliver payment for the Services Subscription Fees through the Payment Provider (defined below). Buyer shall make payments when due in cleared and ready funds. SSW shall have no obligation to deliver Products until payment for such Products that is due has been made in cleared and ready funds. Without limiting the generality of the previous sentence, SSW may suspend its performance if Buyer fails to make any payment when due. Buyer shall be liable for all expenses incurred in the collection of any unpaid amounts, including attorney’s fees. SSW shall have a purchase money security interest in any Products that SSW agrees to deliver without full payment prior to shipment. Buyer agrees to execute financing statements and other documents as SSW reasonably requests, and Buyer acknowledges that this document constitutes a proper security agreement to be used with any such financing statements. SSW may file financing statement(s) for all or part of the secured Products without Buyer’s signature where permitted by law. A photocopy of the Invoice shall be sufficient as a financing statement where permitted by law.

5. Subscription Terms.

(a) Buyer shall pay all applicable fees or charges to Buyer’s account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. Buyer will pay for all Services through SSW’s third-party online payment processor (“Payment Provider”) as a condition to signing up for Services. The Payment Provider agreement governs Buyer’s rights and liabilities related to all payments made hereunder, and Buyer must refer to such agreement and not these Terms to determine Buyer’s rights and liabilities. In the event that SSW experiences increased operating costs, SSW reserves the right to change its fees and charges and to institute new fees and/or charges from time to time, upon notice to Buyer, which may be sent by email or posted on the Client Portal. Buyer’s use of the Services following such notification constitutes Buyer’s acceptance of any new or increased charges. Any Subscription Fees paid hereunder are non-refundable.

(b) When Buyer signs up for Services through the Client Portal, Buyer’s subscription for Services will automatically renew as set out on the applicable Invoice until Buyer cancels it from within the Client Portal or with written notice at least 30 days prior to the expiration of the then-current term. If Buyer does not cancel, then all applicable Subscription Fees will be charged by Buyer’s Payment Provider. BUYER UNDERSTANDS AND AGREES THAT AT THE END OF EACH APPLICABLE TERM OF SUBSCRIPTION FOR SERVICES, SSW WILL AUTOMATICALLY RENEW BUYER’S SUBSCRIPTION FOR THE SAME LENGTH OF TIME AND THE PAYMENT PROVIDER WILL CHARGE BUYER FOR PAYMENT OF THE APPLICABLE SUBSCRIPTION FEE FOR THE RENEWED TERM AT THE THEN-APPLICABLE PRICE FOR BUYER’S SUBSCRIPTION.

(c) If payment cannot be charged to Buyer’s Payment Provider or if a charge is refunded for any reason, SSW reserves the right to immediately suspend or terminate Buyer’s subscription, thereby terminating the Invoice and these terms of Terms and all SSW’s obligations hereunder. SSW reserves the right to change any of the fees that SSW charges (including Subscription Fees), or to institute new or additional fees, at any time upon written notice to Buyer.

6. Delivery Terms.

(a) SSW shall use commercially reasonable efforts to ship the Products as quickly as commercially reasonable. However, SSW does not guarantee compliance with any projected date(s) of delivery, and Buyer agrees that SSW shall not be liable for any damages as a result of any delay in delivery or shipment for any reason.

(b) Unless expressly agreed by the parties in writing, SSW or its agents shall select the method of shipment of, and the carrier for, the Products. SSW may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of an Invoice. SSW shall deliver the Products to the Delivery Location listed on the Invoice, using its standard methods for packaging and shipping such Products. Title to the Products shall pass to Buyer upon SSW’s receipt of full payment for such Products. Risk of loss shall pass to Buyer upon delivery of the Products to Buyer’s location.

7. Inspection Upon Delivery.

Buyer must promptly inspect all Products and notify SSW within 30 days after the Products are delivered to the Delivery Location of any damage to the Products during shipping. If Buyer does not notify SSW in writing of damage within such time period, Buyer shall be deemed to have accepted the Products.

8. Returns.

Except as otherwise set forth herein, or unless different terms are set forth on the Invoice or agreed by the parties in writing, all Products sales are final at time of Product acceptance. Products that have been modified in any way by Buyer may not be returned. Buyer shall pay all costs in connection with re-shipping any Products to SSW, unless the Product was returned for a SSW warranty-covered problem, or was shipped in error by SSW. SSW may refuse any returned Products that are modified by Buyer or damaged due to improper packing, improper use of the Products not in accordance with the Specifications, or other mistreatment by Buyer. In the event that Buyer discovers that Buyer’s location does not support transmission of the Usage Data required to operate the Products and Services, Buyer may return the Products, provided that such return occurs within 30 days of Buyer’s receipts of the Products and such Products have not been damaged.

9. Software.

(a) The Products, used in conjunction with the Services, incorporate the use of software components (the “Software”). SSW hereby grants Buyer a limited, revocable, non-transferrable, non sublicensable license to use the Software in accordance with this Agreement and the Client Portal

(b) The Subscription Fees include license fees for the Software. SSW hereby grants Buyer a non exclusive, non-transferable, non-sublicensable, revocable, limited license to access and use the Software, in object code only, in connection with the use of the Products and Services. Buyer may only use the Software and Products as expressly permitted by these Terms. SSW makes no representations or warranties about the Software except as provided herein.

10. Data Usage and Ownership.

(a) The Product(s) installed by Buyer will transmit Data to SSW on a periodic basis. The frequency of transmission is subject to change, and may vary based on: (i) configuration by Buyer (e.g. via the Client Portal); (ii) Product or Service limitations or configuration by SSW; and (iii) applicable laws, rules, regulations, orders, or final guidance of relevant regulatory authorities (“Laws”). Notwithstanding the foregoing, Buyer may view Use Data on a per-Property, per-day basis via the Client Portal, unless prohibited by applicable Law or otherwise specified in the OF.

(b) Buyer shall submit to the Client Portal certain data, information and other content concerning the Properties, Water Bills, and individuals renting or associated with each Property, each as specified by SSW or set forth in the OF (“Resident Data”). Buyer is solely responsible for the accuracy, timeliness and completeness of all Resident Data, and SSW shall have no liability hereunder relating to any incomplete or inaccurate Resident Data. Buyer agrees to access and use Resident Data, and to configure the Products, Software, and Service, in compliance with all Laws applicable to Buyer. Buyer agrees that SSW shall have no liability to Buyer for any loss or corruption of any Resident Data, and Buyer hereby waives any right of action against SSW arising from any such loss or corruption of such data. Buyer is the exclusive owner of all Resident Data, and hereby grants SSW a non-exclusive, worldwide, royalty-free, perpetual right and license to use the Resident Data to perform the Services and as otherwise provided in these Terms.

(c) Buyer acknowledges that: (i) the Products may collect and transmit to SSW and Buyer certain data relating identifying the Product, network hardware, and other network information necessary to connect to the SSW network and operate the Service (“Device/Network Data”); (ii) SSW may collect via the Products, Software, and Service information relating to the availability, performance, security, and use of the Product, Software, and Service (“Telemetry Data”); and (iii) that SSW’s processing of Resident Data, Device/Network Data, and Telemetry Data may involve the processing of data relating to identified or identifiable individuals (“Personal Information”). Although SSW performs regular routine backups of data, Buyer is solely responsible for all data that Buyer transmits or that relates to any activity Buyer may have undertaken using the Client Portal

(d) Buyer acknowledges and agrees that SSW may process Data for the purpose of providing the Services, to monitor Buyer’s use of the Client Portal, in connection with information security operations, to monitor and improve the features and functionality of the Products, Software, and Services, and for other internal business purposes. Notwithstanding the foregoing, SSW shall not: (i) sell any Personal Information; (ii) retain, use, or disclose any Personal Information for any purpose other than for the specific purpose of providing and operating the Products, Software, and Services; (iii) retain, use, or disclose the Personal Information for a commercial purpose other than operating and providing the Products, Software, and Services; or (iv) retain, use, or disclose Personal Information outside of the direct business relationship between SSW and Buyer, unless required under applicable Law or court order. SSW certifies that it understands these restrictions and will comply with them.

(e) Buyer represents and warrants that: (i) Buyer has all necessary right, title, and interest in and to any Resident Data, and it has provided all notices to and obtained any consents from individuals necessary to collect any Personal Information and for Buyer and SSW to process such Resident Data and Personal Information as contemplated herein (including without limitation any privacy notices or lease disclosures); and (ii) Buyer’s use of the Products, Service, Software, and any Data will not violate applicable Law or any provisions of any lease or other agreement with any resident or third party.

(f) SSW will implement and maintain reasonable technical, organization, and administrative security measures to prevent the unauthorized access to, or acquisition or disclosure of, Personal Information processed by or on behalf of SSW hereunder (“Security Incident”). SSW will notify buyer in writing without unreasonable delay of any confirmed Security Incident. SSW will use commercially reasonable measures to remediate the cause of the Security Incident, and will provide such information to Buyer as is reasonably necessary for buyer to comply with its obligations under applicable Law with respect to such Security Incident. SSW shall have no obligations with respect to any Security Incident caused by Buyer or its users.

11. Limited Warranty.

SSW hereby provides Buyer with the following Product warranty. During the period beginning on the date that a Product is delivered and continuing for two years thereafter (the “Warranty Period”), each Product (including any Software) sold pursuant to these Terms and installed and operated in accordance with the specifications accompanying the Products and/or made available on SSW’s website (the “Specifications”) shall be substantially free from material defects. Buyer’s sole and exclusive remedy, and SSW’s sole liability for any breach of the foregoing warranty shall be, at SSW’s option, repair or replacement of the nonconforming Product(s). All claims relating to Products (including any Software) must be made in writing to SSW within ten days after Buyer learns the facts upon which such claims are based and in no event later than ten days after the end of the Warranty Period for such Products. All claims not made in writing within the time period specified shall be deemed waived. The limited warranty provided herein is personal to Buyer and non-transferable. The limited warranty provided herein is void if the Products (a) are not used as intended or in accordance with the Products’ Specifications, (b) are damaged prior to use, (c) are modified by Buyer, or (d) are mishandled or subjected to abuse. If Buyer continuously pays Subscription Fees beyond the Warranty Period and a Product fails after the Warranty Period has ended, SSW will honor the limited warranty set out herein for up to five years following Buyer’s original purchase of the Product. If Buyer continuously pays Subscription Fees beyond five years following Buyer’s original purchase of the Product, and the Product no longer functions in accordance with the Specifications (including but not limited to failure due to the Product’s battery), Buyer may purchase a new Product from SSW at half the then-current retail price.

THE EXPRESS WARRANTIES IN THIS SECTION 11 ARE IN LIEU OF (AND SSW HEREBY EXPRESSLY DISCLAIMS) ALL OTHER WARRANTIES IN RELATION TO THE PRODUCTS AND SERVICES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE.

Buyer is responsible for ensuring its use of the Products, Services, and any Data provided hereunder complies with the Laws applicable to Buyer. SSW makes no representation or warranty that the Products or Software or Services supplied hereunder comply with any state or local Laws related to water billing, water metering, utility or smart meter privacy, or any other utility regulations, unless explicitly set forth herein, and makes no representation or warranty hereunder related to compliance with any such Laws. SSW is not a water billing payment processor and water billing is not a part of the Services. Buyer has sole responsibility for compliance with local laws and ordinances, including obtaining all permits, licenses, authorizations or certificates required by any regulatory body for installation or use of the Products.

12. LIMITATIONS OF LIABILITY AND DISCLAIMERS.

(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SSW BE LIABLE TO BUYER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, INDIRECT OR SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE OR LOSS OF REVENUE) ARISING OUT OF THESE TERMS, WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE OR OTHER FORM OF ACTION, EVEN IF SSW HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.

(b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SSW BE LIABLE FOR ANY DAMAGES UNDER OR AS A RESULT OF THE PO OR THESE TERMS IN EXCESS OF THE ACTUAL PURCHASE PRICE PAID FOR THE PRODUCTS PURSUANT TO THE PO. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITY SET FORTH HEREBY ARE INDEPENDENT OF ANY EXCLUSIVE OR LIMITED REMEDIES AND SHALL SURVIVE AND APPLY EVEN IF SUCH REMEDIES ARE FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

(c) THIS SOFTWARE IS PROVIDED BY SSW AND ITS THIRD-PARTY LICENSORS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. IN NO EVENT SHALL SSW, ITS LICENSORS, OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; DAMAGE TO ANY DEVICE, LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SOME STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

13. Confidential Information.

In connection with Buyer’s use of the Products and Services, Buyer may become privy to confidential and proprietary information of SSW with respect to SSW’s business, Products, Services, research and development, and its customers, independent contractors, suppliers and other business relations, including information concerning SSW’s IP Rights, business and management methods and techniques, market information and analysis, financial reports and statements, instruction manuals, know-how, strategic plans, technology and trade secrets (collectively, “Confidential Information”). During the period beginning on the Effective Date and continuing for five years after final delivery of a Product hereunder, Buyer will not, and will cause its representatives and agents not to, disclose, divulge, furnish, reveal, use or make available any of the Confidential Information to any person or entity (a) without SSW’s prior written consent, or (b) in connection with any activity or business; provided, however, that IP Rights shall be subject to the aforementioned obligations in perpetuity, and that this Section 13 will not apply to information that (i) is at the time of disclosure a part of the public domain or thereafter becomes a part of the public domain through no violation of these Terms or any other agreement, or applicable laws, (ii) was demonstrably in the possession of Buyer prior to its disclosure, (iii) is hereafter acquired by Buyer through a third party under no obligation of confidence, (iv) is independently developed by Buyer without the benefit or use of the Confidential Information as evidenced by Buyer’s written records, or (v) which is required to be disclosed by law, regulation or valid order but only to the extent required by such law, regulation or order and only if Buyer first notifies SSW, to the extent permitted, of the law or order and permits SSW to seek a protective order or other relief from disclosure.

14. IP Rights.

SSW retains all right, title and interest in and to all IP Rights in the Products and Software, including all IP Rights in and to all documentation, designs, drawings, samples, specifications, publications, schedules and data supplied by or for SSW relating to the Products and any Software (collectively, “SSW Property”), and all improvements to and derivative works of any of the foregoing. Buyer shall not (and shall ensure that its representatives and affiliates do not) reverse engineer, decompile or disassemble or otherwise attempt to discover the source code of the Software or Products, as applicable. “IP Rights” means all industrial and intellectual property rights of every kind, including without limitation all compilations, derivative works, improvements, modifications and revisions thereof, whether published or unpublished, and whether or not copyrightable, patentable or otherwise subject to legal protection, including trade secret, anywhere in the world, in whatever form or media, including (a) copyrightable works, copyrights (and applications), and moral rights, (b) mask works, (c) patentable technology and business methods, patents (and applications), designs, devices, discoveries, improvements, inventions, methodologies, procedures, products, recipes, and research and development, (d) service marks (and applications), trade dress, trademarks (and applications) and trade names, and (e) algorithms, business methods, compositions, concepts, data, domain names, formulae, graphics, ideas, instructions, inventions, know-how, trade secrets, licenses, logos and designs, marketing materials, user interfaces and all other technology, and all documentation and media constituting, describing or arising out of, incidental to or related to the foregoing, including manuals, memoranda and records.

15. Trademarks.

Buyer acknowledges that SSW (or its Affiliates) remains the exclusive owner of any and all trademarks, trade names, logos, package designs and other IP Rights provided to Buyer or incorporated into or used in connection with the Products (collectively, “Trademarks”). Buyer may not use any Trademarks as part of Buyer’s business name. Any and all goodwill now or hereafter associated with the Trademarks inures exclusively to the benefit of SSW and shall be SSW’s sole property. Buyer shall not (a) adopt, use or register any words, phrases or symbols that are identical to or confusingly similar to the Trademarks, (b) use any of the Trademarks, either alone or in combination with any other trademark, on or in connection with any product or service other than the Products or (c) register, acquire, or using any internet domain name or successor identifier or search term acquired from any online search engine that contains or is confusingly similar to any Trademark. SSW shall be solely responsible for, and may exercise its sole discretion in, deciding whether to apply for and prosecute any Trademark applications.

16. Termination.

In addition to any other right of termination that SSW may have under these Terms, SSW may terminate any unfilled Invoice, in whole or in part, by written notice to Buyer due to: (a) Buyer’s breach of any of the terms and conditions of the Invoice or these Terms, or (b) Buyer’s filing a petition of any type as to its bankruptcy, being declared bankrupt, becoming insolvent, making an assignment for the benefit of creditors or going into liquidation or receivership. If SSW cancels an Invoice (in whole or in part), Buyer agrees to indemnify and hold SSW harmless from any amounts due or damages incurred by SSW to third parties as a result of the termination.

17. Notices.

Notice permitted or required to be given under these Terms shall be deemed sufficient if given in writing by commercial delivery service or by registered or certified mail, postage prepaid, return receipt requested, addressed to the respective addresses of the parties set forth in the Invoice. Notices so given shall be effective upon the earlier of: (a) receipt by the party to which notice is given; (b) on the fourth business day following the date such notice was deposited in the mail; (c) on the second business day following the date such notice was delivered to a recognized commercial overnight delivery service; or (d) the business day after an email is sent.

18. Survival.

The provisions of these Terms that expressly contemplate performance or observance subsequent to the termination or expiration of these Terms shall survive the termination or expiration of these Terms and continue in full force and effect except for those provisions that only provide for performance or observance during the Term.

19. Indemnification.

Buyer shall indemnify, defend and hold SSW, its affiliates, their respective directors, officers, employees, agents and their respective successors and assigns (each, a “SSW Indemnitee”) harmless from and against any and all costs, liabilities, damages, penalties, fines, losses and expenses (including but not limited to reasonable attorneys’ fees), settlements, claims, allegations, investigations, actions or suits (“Losses”) incurred by or asserted against any SSW Indemnitee of whatever kind or nature because of or arising out of: (a) any breach of any representation, warranty, covenant or obligation of Buyer in these Terms; or (b) any modification of the Products. Nothing in this Section 19 limits Buyer’s remedies under Section 11 (Limited Warranty).

20. Force Majeure.

If performance of any obligation hereunder (except payment of monies due) is prevented, restricted or interfered with by any force majeure, (including without limitation act of God; fire or other casualty or accident; pandemic (or pandemic related legal restrictions); quarantine; strikes or labor disputes; war or other violence; unavailability of or delays in procuring materials, power or supplies; any law, order, proclamation, regulation, ordinance, demand or requirement of any governmental or intergovernmental agency or body; or any other act or condition whatsoever beyond the reasonable control of the party affected thereby), the party so affected shall be excused from such performance during the time such prevention, restriction or interference persists. If such a delay occurs, the date for shipment or performance shall be extended correspondingly.

21. Benefits; Assignment.

These Terms are binding upon and inure to the benefit of the parties and their respective affiliates, permitted assignees and permitted successors, as applicable. Except as otherwise expressly contained in these Terms, these Terms will not confer any remedies or rights upon any person other than the persons referred to in the immediately preceding sentence. These Terms are not assignable by Buyer without the prior written consent of SSW.

22. Waiver.

The failure of either party to seek redress for a breach of or default under, or failure to insist upon the strict performance of, any condition or provision in these Terms, will not prevent a subsequent act or failure from having the effect of an original breach of or default under, or failure to satisfy, any such condition, provision or term contained in these Terms. No waiver of any condition, provision or term contained in these Terms will be effective unless it is contained in a written document executed by each party, and then only to the extent specifically provided in such writing. No waiver by any party of any breach of or default will be deemed to extend to any prior or subsequent breach of or default, or affect in any way any rights arising out of, based upon, connected with, incidental to or related to any such prior or subsequent occurrence.

23. Governing Law; Waiver of Jury Trial.

(a) These Terms and the Invoice are governed by the domestic laws of the State of Colorado without giving effect to any choice of law or any conflicting provision, rule or term (whether of the state of Colorado or any other jurisdiction) that would cause the laws of any jurisdiction other than the state of Colorado to be applied.

(b) THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ALL OF THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY PROVISIONS CONTAINED IN THESE TERMS OR THE INVOICE. NO PARTY WILL SEEK TO CONSOLIDATE ANY PROCEEDING IN WHICH SUCH PARTY HAS WAIVED THE RIGHT TO A TRIAL BY JURY WITH ANY OTHER PROCEEDING IN WHICH SUCH PARTY CANNOT WAIVE, OR HAS NOT WAIVED, THE RIGHT TO A TRIAL BY JURY. EACH PARTY ACKNOWLEDGES AND AGREES THAT IT HAS HAD THE OPPORTUNITY TO CONSULT WITH, AND HAS CONSULTED WITH, LEGAL COUNSEL (OR HAS VOLUNTАРILY CHOSEN NOT TO CONSULT WITH COUNSEL), TO DISCUSS AND CONSIDER THE IMPLICATIONS OF THIS WAIVER OF JURY TRIAL.

(c) If any dispute arises with respect to the unauthorized use of Confidential Information or the IP Rights of a party by another party, the aggrieved party may seek any available remedy at law or equity from a court of competent jurisdiction, in addition to its right to arbitration as provided in Section 23(d).

(d) Subject to Section 23(c), if any dispute arising out of or related to these Terms has not been resolved by negotiation, then any party shall initiate arbitration by filing a written demand for arbitration. Arbitration will be administered by the American Arbitration Association, or its successor (the “AAA”) in accordance with the AAA’s Commercial Arbitration Rules, by a sole arbitrator. The parties will cooperate with the AAA and with one another in selecting an arbitrator from the AAA’s panel of neutrals, and in scheduling arbitration proceedings. Any award or final decision rendered pursuant to an arbitration conducted pursuant to the provisions contained in this Section 23(d) will be binding and enforceable by any court of competent jurisdiction, and judgment on the award or decision may be entered in any such court. Arbitration will take place in Denver, Colorado. The arbitrator will not be empowered to award a remedy beyond those permitted under these Terms. The arbitration and all related proceedings and discovery will take place pursuant to a protective order entered by the arbitrator that adequately protects the confidential nature of the Confidential Information and the negotiations, mediation proceedings and arbitration proceedings.

24. Severability.

If any condition, provision or term contained in these Terms would be held in any jurisdiction to be illegal, invalid, prohibited or unenforceable for any reason, then such condition, provision or term, as to such jurisdiction, will be ineffective, without invalidating the remaining provisions contained in these Terms or affecting the enforceability, legality or validity of such condition, provision and/or term in any other jurisdiction. Anything in the immediately preceding sentence to the contrary notwithstanding, if such condition, provision or term could be drawn more narrowly so as not to be illegal, invalid, prohibited or unenforceable in such jurisdiction, it will be so narrowly drawn, as to such jurisdiction, without invalidating the remaining provisions contained in these Terms or affecting the enforceability, legality, or validity of such condition, provision or term in any other jurisdiction.

25. General.

The Invoice, these Terms and any non-disclosure agreement or license agreement for Software entered into by the parties, constitute the final, complete, exclusive and entire agreement between the parties and supersede all prior or contemporaneous agreements, written or oral, regarding the subject matter of the Agreement. In the event of a conflict between these Terms or the Invoice, these Terms shall control unless the Invoice expressly provides otherwise. The parties may execute an Invoice in any number of counterparts, and each such counterpart will be deemed an original signature page to the Invoice. Any counterpart or other signature delivered by email or other electronic device will be deemed for all purposes as constituting good and valid execution and delivery of the Invoice by such party. These Terms do not constitute and shall not be construed as constituting a partnership, joint venture, principal/agent relationship, or employer/employee relationship between the parties; the relationship between the parties shall be solely that of independent contractors. Except as otherwise expressly provided in these Terms, these Terms may not be amended, waived, modified, restated and/or supplemented except pursuant to a written document signed by each party.