This Master Services Agreement (the “Agreement”) is between SMRTR Inc. (“SMRTR”) and the LICENSEE (“CLIENT”) as identified in the corresponding quote or sales order associated with the purchase of Licensed Software Product(s) or Professional Services. SMRTR and CLIENT are collectively referred to as the (“Parties”).

The Parties agree as follows:

1. Engagement

1.1    Client will engage SMRTR to provide services and deliverables from time to time, on a project-by-project basis, subject to the terms of this Agreement, each project to be described in a separate Statement of Work (“SOW”) and approved in writing by authorized representatives of each party prior to commencement of work. The Parties’ first SOW is attached as Exhibit A to this Agreement or within the quote or sales order provided to Client and is incorporated into this Agreement by reference.  Unless otherwise agreed between the Parties, engagements hereunder shall be on a “Time and Materials” basis, meaning SMRTR will be compensated for the amount of time worked, and be reimbursed for project related expenses. 

1.2    Changes to an approved SOW shall be made in accordance with the following procedure:

a. The party requesting a change shall submit a written SOW Change Request (CR) to the other party.

b. If the requesting party is Client, then SMRTR will respond (a SOW CR Response) by written notice to Client within 5 business days of receipt of the SOW CR, outlining all terms and conditions upon SMRTR willingness to accept the SOW CR, including any changes in the fees or expenses. If the requesting party is SMRTR, then the SOW CR will identify such impacts, conditions and the fees and expenses as proposed by SMRTR.

c. Client shall accept, reject or propose modifications to each such SOW CR or SOW CR Response given by SMRTR within 5 business days of receipt by Client. Each acceptance of a SOW CR or SOW CR Response must be signed by an authorized representative of each party before becoming effective as a modification to the SOW or this Agreement.

1.3    A SOW may contemplate that SMRTR has sold or will sell to Client licenses to use proprietary software created by SMRTR or an SMRTR Licensor, which transaction(s) will be governed by separate Software License Terms and Conditions and/or product order form agreed upon between the Parties. Neither termination of this Agreement, nor Client’s rejection of the services or deliverables hereunder, shall affect the imposition of the Software License Terms and Conditions  

1.4    SMRTR is and shall continue to be an independent contractor in connection with performance of the services hereunder. Nothing in this Agreement shall be deemed to create a partnership, joint venture, agency, or other form of legal association. No party has the authority to bind the other party or act as its agent in any manner.

1.5    Client is responsible for the accuracy of Client’s information provided to SMRTR.

1.6    SMRTR may be implementing solutions under the terms of the SOWs that contain licensed software of other vendors. If defects are discovered during the implementation process, SMRTR will assist the licensed software vendor in problem determination, implementation of software fixes and temporary defect work around. SMRTR will be compensated for these activities as if they were in the scope of the SOW. Project milestones may be impacted by SMRTR activities associated with defect problem determination and repair.

2. Fees & Expenses

Client will pay SMRTR the amounts as set forth in the SOW within 30 days of receipt of invoice. The Parties expressly agree that the Client shall have three (3) business days from receipt of an invoice to object to the invoice and submit written documentation demonstrating that the respective milestone/deliverable has not been met or is not otherwise acceptable. Failure to timely object and payment of the subject invoice shall both be deemed conclusive evidence that the corresponding deliverable/ milestone was received and acceptable to Client.  Upon prior written approval, Client shall further reimburse SMRTR’S reasonable expenses in accordance with SMRTR’s T&E policies then in effect, including travel expenses to locations other than the primary work site located at SMRTR’S currently identified work locations (list can be provided), within 30 days of receipt invoice. If Client has their own T&E policies, SMRTR will adhere to these. Client is responsible for any sales, use, or other taxes, duties or other charges arising out of the transaction contemplated by this Agreement, other than taxes on SMRTR’S income.

2.1 Any invoice not paid within 30-days of receipt will be assessed a 1½% late fee per month.

3. Term and Termination

3.1    This Agreement shall commence as of the date stated above and shall continue until terminated as provided herein or upon the completion of the services and deliverables contemplated in the SOW and any subsequent SOW CR. .

3.2    Client may terminate any engagement prior to completion, effective 10 business days after giving written notice.  If this occurs, Client shall compensate SMRTR for all services performed under the SOW or SOW CR  prior to the effective date of termination, plus approved expenses. SMRTR shall further be entitled to reimbursement regarding any non-cancelable obligations associated with the work including any partially completed deliverables which pertain to the milestones agreed to by the Parties to the extent that the work has been completed in good faith and meet the requirements as defined in the SOW to the extent possible given work may not have been allowed to be completed or finished testing.

3.3    Either party may suspend performance if the other fails to perform any material obligation under this Agreement and may restart performance at a time to be mutually agreed upon by both Parties once such failure is cured, provided that the time for  performance shall be extended for the period of suspension. Either party may terminate this Agreement if the other Party’s failure of performance continues beyond 30 days after receiving notice to cure such failure of performance.

3.4    Either party may terminate this Agreement at any time, effective upon giving written notice of termination, subject to the provisions of Section 3.2 above with regard to the prior completion of the services, deliverables and any open engagements.

4. Ownership and Other Rights

4.1    All Work Product (including without limitation deliverables, inventions, and intellectual property, whether created independently or jointly with others, and derived from SMRTR’S services or use of SMRTR’S existing IP) is solely owned by SMRTR. SMRTR’s rights are unrestricted, whether or not the Work Product is used, registered, or commercialized. Client shall reasonably assist SMRTR in securing and enforcing these rights.

4.2 Payment of all  fees and expenses, and Client’s compliance with the terms of this Agreement, are a condition precedent to SMRTR granting Client a non-exclusive right to use the Work Product delivered under this Agreement and the applicable SOW(S) for Client’s internal use (the “License”). Client agrees to exercise the same level of care against unauthorized use by, or disclosure to, third parties as Client  uses with respect to its own proprietary information of comparable importance, provided that in no event will the Client use less than reasonable care. The Client may not transfer the Work Product, or the License, to any other party. The internal use License is subject to the terms of the SMRTR Software License Terms and Conditions.

5. Warranties & Limitations on Liability

5.1    SMRTR warrants that the services will be performed in a professional, workmanlike and skillful manner. On Project engagements, SMRTR warrants that the Work Product materials, as specified in the SOW will operate as specified for 90 days from delivery (with Client’s sole remedy being re-performance of the Services at no cost). In the event that Client modifies any configuration files that were delivered as part of the Work Product or are utilized by the Work Product independent of SMRTR, this warranty shall be void. Any warranty issues shall be reported directly to the specific SMRTR project manager responsible for the project and shall reference the specific requirement at issue as further described in the applicable Design Document.

5.2    NOT WITHSTANDING THE FOREGOING, SMRTR MAKES NO REPRESENTATION NOR WARRANTY, AND HEREBY DICLAIMS ALL WARRANTIES, REGARDING THE FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY OF ANY DELIVERABLES PROVIDED OR TO BE PROVIDED TO CLIENT, WHETHER EXPRESSED ORALLY OR OTHERWISE IMPLIED OR ARISING BY OPERATION OF LAW, AND BUYER ACCEPTS THE DELIVERABLES “AS IS” AND WITH ALL FAULTS.

5.3    OTHER THAN FOR WILFULL MISCONDUCT OR FRAUD, SMRTR WILL NOT BE LIABLE TO Client FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, HOWEVER ANY SUCH DAMAGES MAY ARISE AND IRRESPECTIVE OF WHETHER SMRTR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SMRTR BE LIABLE TO CLIENT FOR MORE THAN SMRTR HAS BEEN PAID UNDER THIS AGREEMENT SINCE THE LAST ACCEPTED MILESTONE AS PROVIDED FOR IN THE SOW.

6. Non-Disclosure of Confidential Information

6.1    Each party acknowledges that the other’s business depends on the preservation of its proprietary information, trade secrets and other confidential information (the “Trade Secrets”). Client and SMRTR will each take any and all reasonable action to protect and preserve as confidential during or after the term of this Agreement all of the Secrets of the other disclosed to or known by such party or in such party’s possession or control, whether wholly or partially developed by such party or provided to such party, except to the extent: (a) authorized to do so in writing by the other party; (b) such Secret was already known by or generally available as part of the public domain prior to its disclosure to such party, or becomes so available through no fault of such party; (c) such Secret is independently developed by such party or is received from a third party with no breach of a duty owed to the other party; or (d) such Secret is required by law to be divulged by such party, provided that such party gives the other party as much prior notice of such requirement and opportunity and cooperation in contesting the same as practicable.

6.2  Neither party will use nor allow others to use any of the Trade Secrets of the other for any purpose other than as contemplated hereby.

6.3    Conditional on payment of all required fees and Client’s compliance with the terms of this Agreement, SMRTR hereby grants Client and its affiliates a non-exclusive, royalty-free license to use the Secrets of SMRTR, whether developed before or during term of this Agreement, related to any services provided hereunder. This license shall not be assignable to any unaffiliated third party without the written consent of SMRTR.

7. DISPUTE RESOLUTION

7.1    In the event of any dispute arising out of or relating to this Agreement, the Parties shall attempt in good faith to resolve such dispute through informal means, including timely escalating of the dispute to senior management having full settlement authority. In this regard neither party may proceed with legal action of any kind if they have not first made such good faith attempt and such attempt shall include an in-person meeting between senior management having full settlement authority.

7.2 If the dispute remains unresolved for 30 days and the Parties have exhausted the informal efforts described above; the Parties must participate in neutral mediation before pursuing other legal action. Such mediation shall be conducted in Denver, Colorado and with a neutral mediator agreeable to the Parties, or if the Parties are unable to agree on a mediator, then a mediator selected by the American Arbitration Association (Denver Regional Office), 2301 Blake Street, Suite 100 Denver, CO 80205, 303) 831-0824. The Parties shall each pay half of such mediation costs.

7.3   If the dispute remains unresolved after the conclusion of mediation described above the matter will be submitted to final and binding arbitration under the American Arbitration Association Rules and before a single neutral arbitrator agreeable by the Parties, or if the Parties are unable to agree on an arbitrator, then an arbitrator selected by the American Arbitration Association (Denver Regional Office), 2301 Blake Street, Suite 100 Denver, CO 80205, (303) 831-0824.

7.4    Any legal proceedings arising out of or related to this Agreement, including those pursuant to the Dispute Resolution provision, shall be governed by and decided in accordance with the laws of the State of Utah, without regard to its conflict of law principles.

8. General Provisions

8.1    This Agreement together with the applicable SOW and any SOW CR contains the entire agreement between the Parties relating to the subject matter hereof, subject to the SMRTR SOFTWARE LICENSE TERMS AND CONDITIONS  and no modification shall be valid unless made in writing and signed by the Parties hereto.

8.2    The SOW or SOW CR described or referred to in this Agreement are approximate neither Party shall not be liable to the other for any failure or delay of performance arising out of circumstances beyond their reasonable control.

8.3   Notices. All notices under this Agreement shall be in writing, shall reference this Agreement, and shall be deemed given: 1) when delivered personally; 2) when sent by confirmed facsimile transmission; 3) five days after having been sent by registered or certified mail, return receipt requested; or 4) one day after deposit with a commercial overnight carrier, with written verification of receipt. All communications may be sent to the addresses set forth above, subject to modification by giving notice as provided herein. All notices to SMRTR shall be provided the following address:

SMRTR, Inc.

6995 South Union Park Center Suite 340-D

Cottonwood Heights, UT 84047