Master Software Services Agreement

Version December 18, 2024

This Master Services Agreement, including any exhibits, policies, or addenda attached hereto or referenced herein (the “Agreement”) is entered into by and between Line-Scape, LLC (“Line-Scape”) and the entity (“Client”) executing an Order Form with Line-Scape on or after the Effective Date set forth therein.  The purpose of this Agreement is to set forth the terms and conditions under which Line-Scape will provide internet-based software services and related professional services to Client.

Whereas, Line-Scape is a software services company offering hosted software services which can be used to integrate Client’s data with GIS mapping technologies;

Whereas, Client seeks to obtain certain rights to access and use, and to permit its authorized employees and contractors to access and use on Client’s behalf, the software services provided by Line-Scape as more particularly described in an Order Form entered into by Client and Line-Scape and in accordance with the terms and conditions of this Agreement; and

Whereas, Line-Scape seeks to provide Client the rights to access and use, and to permit its authorized employees and contractors to access and use the services as set forth in an Order Form entered into by Client and Line-Scape, and such other services to which both parties may agree in writing from time to time, in accordance with the terms and conditions of this Agreement.

Now, Therefore, in consideration of the mutual promises and covenants contained herein, the parties agree to the following terms and conditions, which set forth the rights, duties and obligations of the parties:

Components of this Agreement.

This Agreement is comprised of the following components:

1. This document;
2. Each Order Form entered into between the parties after the Effective Date;
3. The Service Level Agreement available at https://www.line-scape.com/sla (“SLA”), incorporated into this Agreement by reference;
4. Each Statement of Work entered into by the parties, if any, which shall be subject to the terms of this Agreement unless otherwise expressly stated therein.

1. Definitions

For purposes of this Agreement the following terms shall have the following meanings:

“Affiliate” shall mean any entity or person directly or indirectly controlling, controlled by or under common control with an identified party to this Agreement, but specifically excluding any person or entity offering or intending to develop or offer a commercial software service with the same or similar functionality as the Licensed Platform unless Line-Scape has agreed in writing to grant Affiliate status to such person or entity. For the purpose of this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity or person whether through the ownership of voting securities, by contract, or otherwise.  An entity or person shall only be an Affiliate for the period in which requisite control exists.

“Authorized Users” shall mean Client’s or its Affiliate’s employees, contractors, and third-party consultants that are utilizing the Licensed Platform on behalf of Client or its Affiliate and to whom Client or its Affiliate has granted access rights to the Licensed Platform by means of unique and user-specific login credentials.

“Client Data” shall mean information or materials furnished by Client, its Affiliates, or an Authorized User through the Licensed Platform, or generated through an Authorized User’s use of the Licensed Platform and Services.

“Client Proprietary Information” shall mean the subset of Client Data generated through use of the Licensed Platform and Service.

“Deliverable” shall mean a product of Professional Services to be provided by Line-Scape to Client pursuant to a Statement of Work.

“Developed Software” shall mean custom software programs, scripts, object or source code, processes, workflows, features and functionality, interfaces, or other modifications to the Licensed Platform or for use in connection with the Licensed Software developed by Line-Scape for Client pursuant to a Statement of Work.

“Documentation” shall mean the standard documentation for the Licensed Platform and the Services, as generally provided by Line-Scape to its other, similarly situated clients.

“Intellectual Property Rights” shall mean worldwide statutory and common law rights associated with (a) patents and patent applications; (b) works of authorship, including copyrights, copyrightable works (including computer programs), copyright applications, copyright registrations, and “moral rights”; (c) the protection of trade and industrial secrets and confidential information; (d) Trademarks (as defined herein); (e) all other forms of intellectual property; and (f) divisions, continuations, renewals, and re-issuances of any of the foregoing, now existing or acquired in the future.

“Licensed Platform” shall mean, collectively, (a) the Line-Scape software platform; (b) the Documentation; (c) any Updates; and (d) any Developed Software that constitutes software or an enhancement or customization to the Licensed Platform and any Deliverable unless a Statement of Work expressly provides that it shall not constitute part of the Licensed Platform.

“Order Form” shall mean a written document executed by both parties to this Agreement whereby Client requests, and Line-Scape agrees to make available, specified features and functionality of the Licensed Platform on the business terms set forth therein.  Any additional features and functionality of the Line-Scape platform or other Line-Scape product offerings which Client may wish to use in the future (but excluding Professional Services) will be subject to the parties’ agreement by way of an additional Order Form.  All Order Forms between the parties will be deemed part of, and subject to the terms and conditions of, this Agreement.

“Pilot Testing Period” means any introductory period set forth in an Order Form and designated as the Pilot Testing Period.  Either party may elect to terminate an applicable Order Form for any reason during a Pilot Testing Period as set forth in Section 4(a) of this Agreement.

“Professional Services” shall mean custom Client-specific support, maintenance, training, implementation, or development services Client may choose for Line-Scape to provide.  Any and all Professional Services shall be set forth in a Statement of Work executed by both parties to this Agreement.

“Line-Scape Proprietary Information” shall mean that information relating to Line-Scape’s business, operations, finances, pricing, product offerings, methodologies and relationships, including but not limited to: (1) features, functionality and design of the Licensed Platform or any component thereof; (2) the terms of this this Agreement or any component thereof, and of any agreement Line-Scape may have (or may be negotiating) with any third party; (3) data relating to performance and operation of the Services; and (4) non-public information concerning the Licensed Platform, Services, and Professional Services.  The Line-Scape Proprietary Information shall not include: (a) information available to the general public or which becomes available to the general public other than a result of Client’s breach of an obligation under this Agreement; (b) information which is provided to Client by a third party provided that such third party is not under or in breach of an obligation of confidentiality or non-disclosure to Line-Scape regarding such information; or (c) information which is independently developed by Client without use of or reference to Line-Scape Proprietary Information.

“Services” shall mean the service by which software products and services (including, without limitation, the Licensed Platform) hosted on servers controlled by Line-Scape are made available through the Internet for remote use by Client and its Authorized Users pursuant to an Order Form.  Unless otherwise set forth in the applicable Order Form, all Services shall include standard support services as set forth in the SLA.

“Services Term” shall mean the period set forth in the Order Form during which Client shall be provided access to the Services and Licensed Platform, including any Pilot Testing Period to which the parties may agree.

“Statement of Work” means the written description of any Professional Services to be performed by Line-Scape subject to the terms and conditions of this Agreement.  Each Statement of Work shall set forth: (i) a description of the Professional Services to be delivered by Line-Scape; (ii) a description of the respective responsibilities of the parties; (iii) location of the Professional Services to be provided and milestone dates, if applicable; (iv) payment provisions; (v) any Deliverables to be provided; and (vi) any other terms to which the parties may mutually agree relating to Professional Services to be provided under the Statement of Work.  Upon execution of a Statement of Work by the parties, such Statement of Work shall be added to this Agreement as an Exhibit and shall be deemed incorporated herein.

“Taxes” means all import and export duties, customs fees, levies, or imposts, and all sales, use, value added, or other fees, governmental charges, or taxes of any nature imposed by virtue of providing or receiving the products, goods or services made the subject of this Agreement, exclusive of any taxes, duties, assessments or levies based solely upon: (1) Line-Scape’s income; (2) Line-Scape’s ownership or use of real, personal or intangible property; or (3) Line-Scape’s status as an employer of its personnel.

“Updates” shall mean the object code forms of any modifications, error corrections, bug fixes, new releases, or other updates of or to the Licensed Platform and Documentation that may be provided or otherwise made available hereunder by Line-Scape to Client during the Services Term.

All Other Defined Terms.  Any other term defined in this Agreement or any portion thereof, including but not limited to any Exhibit or Statement of Work, shall have the meaning set forth where the term is defined.

2. Grant of Licenses; Restrictions.

   1. Grant of License to Access and Use the Licensed Platform. Subject to the terms and conditions of this Agreement and the timely payment of the fees set forth in Exhibit A, Line-Scape hereby grants to Client a non-exclusive, non-sublicensable, non-assignable and non-transferrable limited right and license during the Services Term for Authorized Users to access and use the Licensed Platform and Services in accordance with the Documentation and solely for Client’s and Client’s Affiliates’ own business purposes.
   2. Restrictions. Except as expressly provided in this Agreement, Client shall not, and shall not permit any Affiliate or Authorized User to, without the prior written consent of Line-Scape: (i) copy all or any portion of the Licensed Platform or the Services; (ii) decompile, disassemble or otherwise reverse engineer the Licensed Platform or the Service, or any portion thereof, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in the Licensed Platform or Services or any portion thereof; (iii) modify, translate, or create any derivative works based upon the Licensed Platform or the Services; (iv) distribute, disclose, market, rent, lease, assign, sublicense, pledge, or otherwise transfer the Licensed Platform or the Services, in whole or in part, to any third party; (v) remove or alter any copyright, trademarks, or other proprietary notices, legends, symbols, or labels, other than intellectual property owned by Client and appearing on or in the Services and/or Licensed Platform; (vi) permit the Licensed Platform or the Services to be used for or in connection with any facility management, service bureau, or time-sharing purposes, services, or arrangements, or otherwise be used for processing data or other information on behalf of any third party other than a Client Affiliate or an Authorized User granted access to the Licensed Platform by Line-Scape; (vii) incorporate the Licensed Platform or the Services or any portion thereof into any other materials, products, or services; (viii) use the Licensed Platform or the Services for any criminal purpose or any purpose which would violate an obligation owed by Client or any Authorized User to a third party imposed by contract, applicable law, statute, ordinance, or governmental regulation; (ix) transmit to the Licensed Platform or to or through the Services material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (x) intentionally interfere with or disrupt the integrity or performance of the Services, the Licensed Platform or the data, including Client Data, contained therein; (xi) use the Licensed Platform or the Services to upload, process, store or distribute libelous, defamatory, or otherwise tortious materials, any materials which infringe on the Intellectual Property Rights of any third party, or any materials subject to privacy rights of any third-party established by law or governmental regulation for which Client has not previously obtained any required consent or authorization for Client’s use in connection with the Licensed Platform or Services; or (xii) attempt to gain or grant unauthorized access, or attempt to exceed an existing authorization to access, the Services or the Licensed Platform.
   3. Grant of Licensed to Client Data and Marks. Client hereby grants to Line-Scape a limited, worldwide, royalty-free, non-exclusive right and license to process, modify, translate, publish through the Licensed Platform, display and use the Client Data, and the trademarks, servicemarks, or logos supplied by Client or its Affiliates (collectively “Client Marks”), for use in and for the purposes of providing Client the Licensed Platform, Services and other products and services contemplated by this Agreement.  In addition, Client hereby grants to Line-Scape an irrevocable, perpetual, worldwide, royalty-free, non-exclusive, assignable and transferrable right and license to use, process, modify, translate, publish, display, license, sublicense, make derivative works from, assign, or otherwise transfer the Client Data in the forms and for the purposes set forth in Section 2(d).
   4. Use of Aggregated or Anonymized Data. Client agrees and acknowledges that Line-Scape may collect, use, modify, disclose, and transfer quantitative and qualitative data derived from Client’s and its Authorized User’s use of the Services or Licensed Platform for Line-Scape’s own business purposes, including but not limited to industry analysis, benchmarking, analytics, and marketing. Such data collected, used, and disclosed pursuant to this Section 2(d) will be in aggregated or deidentified form and will not identify Client, its Authorized Users, or any third parties utilizing the Services or Licensed Platform.

3. Professional Services.

Any and all Professional Services shall be set forth in one or more Statements of Work executed by both parties to this Agreement.  Client shall provide reasonable cooperation in connection with Line-Scape’s performance of Professional Services, including but not limited to designating a point of contact for specific Professional Services and timely responding to requests for information necessary for the performance of the Professional Services.  The schedule for performance of any Professional Services shall be set forth in the applicable Statement of Work, and Line-Scape shall promptly notify Client in the event that events arise which lead Line-Scape to reasonably believe that there will be delays in meeting any milestones or other schedule points set forth in a Statement of Work.  Any Professional Services to be performed on-site at a Client facility, or which will require access to Client’s networks, shall be scheduled with Client in advance.  Line-Scape represents and warrants that the Professional Services shall be performed in a professional and workmanlike manner and shall meet the express requirements set forth in the applicable Statement of Work. Client’s sole remedy for any violation of the warranty stated in this section will be for Line-Scape to exercise reasonable efforts to re-perform the applicable Professional Services.  Unless expressly stated to the contrary in a Statement of Work, Line-Scape shall own all Intellectual Property Rights in and to the Deliverables, including but not limited to any Developed Software, and upon payment of all fees set forth in the applicable Statement of Work, Client shall be deemed to have been granted a non-exclusive, non-sublicensable, limited right and license during the Services Term for Authorized Users to access and use the Deliverables in accordance with the terms of this Agreement solely for Client’s and Client’s Affiliates’ own business purposes.

4.     Term and Termination.

a)     Term of Agreement, Order Forms and Statements of Work.  The term of this Agreement (the “Term”) shall commence upon the execution of the first Order Form by Client and shall continue in full force and effect thereafter until terminated in accordance with the provisions of this Section 4.  The term of each Order Form will begin on the “Effective Date” specified in the Order Form, unless no “Effective Date” is specified in which case the Order Form will be effective on the date it becomes signed by both parties, and shall continue in force for the Services Term set forth therein (such period of effectiveness being an “Initial Order Term”) unless sooner terminated pursuant to this Agreement.  Upon expiration of its Initial Order Term, each Order Form will automatically renew for subsequent one-year periods (each an “Order Renewal Term”) unless either party has delivered notice of its intent not to renew not less than ninety (90) days prior to the expiration of the then-current Initial Order Term or Renewal Order Term.  Notwithstanding anything in this Agreement to the contrary, either party shall have the right, in its sole discretion, to terminate an Order Form for any reason, in its sole discretion, upon written notice within ten (10) days of the expiration of a Pilot Testing Period set forth in such Order Form; provided that in the event the Order Form does not set forth a Pilot Testing Period or either party fails to terminate the Order Form during a specified Pilot Testing Period, the Order Form shall be effective during the full Initial Order Term.  Each Statement of Work will become effective upon execution by both parties and shall continue in full force and effect until completion of the Professional Services set forth therein.

b)       Termination.

i)               For Material Breach.  In the event of a material breach of the terms of this    Agreement which remains uncured for a period of thirty (30) days following delivery of written notice to the breaching party setting forth the nature of the material breach (but only if such breach is capable of cure), the non-breaching party may immediately terminate this Agreement upon notice to the other party.

ii)              For Convenience.  In the event both parties mutually agree in writing, this Agreement, any Order Form, or any Statement of Work may be terminated without further notice to or from either party. Either party may terminate this Agreement upon notice to the other in the event there is no active Order Form or Statement of Work (i.e., all Order Forms and Statements of Work are expired or have previously terminated).

iii)             Upon Occurrence of Particular Events.   This Agreement may be terminated immediately: (a) by a party if the other party becomes a debtor in bankruptcy proceedings (voluntary or involuntary), is declared insolvent, makes a general assignment for the benefit of its creditors, or becomes subject to the appointment of a receiver for all substantial part of its assets or operations; or (b) by Line-Scape upon Client’s or its’ Authorized User’s breach of the provisions of Section 2(b) or Section 7(b) of this Agreement.

iv) As Otherwise Provided. The foregoing Sections 4(b)(i)-(iii) shall not limit any other termination right expressly granted to a party under this Agreement.

c)     Effect of Termination; Survival.  Notwithstanding anything in this Agreement to the contrary, the expiration or termination of this Agreement shall automatically operate to terminate all Order Forms and Statements of Work.  Upon the termination or expiration of this Agreement: (1) Client shall promptly pay all outstanding fees payable to Line-Scapein respect of the Services and Professional Services performed through the date of termination; (2) Line-Scape shall stop providing the Service and Professional Services and Client’s rights to access and use the Licensed Platform will terminate; and (3) Client shall return or destroy (and certify such destruction in writing) all Line-Scape Proprietary Information in its possession, custody and control.  Notwithstanding the foregoing, Client may retain: (i) a copy of the Line-Scape Proprietary Information to the extent it is required to do so by applicable law or regulation; (ii) a copy of this Agreement or any invoice for fees or taxes under this Agreement; and (iii) to the extent such Line-Scape Proprietary Information is contained in any archived “backup” format maintained for disaster recovery purposes pursuant to a written data retention policy which provides for routine destruction of such archived material at a later date.  Any Line-Scape Proprietary Information retained by Client following termination of this Agreement shall remain subject to Client’s obligations under Section 7(b) for so long as such information remains in Client’s possession, custody or control.  The provisions of Sections 1, 2(b), 2(d), 4, 6(a), 7, 8, 9(c), 10, 11, 12, and 13, together with any other term or provision of this Agreement necessary to permit a party to enforce a right or obligation accruing during the Term of this Agreement (including but not limited to fees for services rendered prior to termination), shall survive termination or expiration of this Agreement for any reason.

d)     Transition Services and Client Data.  Upon termination of this Agreement or termination or expiration of an Order Form, Client may request that Line-Scape provide transition services to assist Client in facilitating its migration off the Licensed Platform (“Transition Services”). Any Transition Services shall be subject to a separate written agreement between the parties. Transition Services may include delivery of Client Data reflecting transactions entered into between Client or its Affiliates, and Client acknowledges that delivery of such Client Data may incur reasonable additional fees not to exceed those generally charged to Line-Scape’s other customers for the same or similar services of comparable scope.  If Client fails to request Transition Services within ninety (90) days of termination of this Agreement, or if the parties fail to reach an agreement for Transition Services within one hundred and twenty (120) day of termination of this Agreement, Client acknowledges and agrees that Line-Scape will be entitled to delete or destroy such Client Data in its sole discretion.

5.     Fees and Payment

a)     Fees, Taxes and Invoicing.  The fees applicable to Line-Scape’s provision of the Licensed Platform, Services and Professional Services (collectively, “Fees”) shall be as set forth in each respective Order Form and Statement of Work.  Client shall be responsible for payment of any and all Taxes.  Unless otherwise provided in a specific Order Form or Statement of Work, all Fees and any Taxes which Line-Scape is required to collect shall be invoiced in advance and all undisputed amounts payable within thirty (30) days of the date of invoice delivery.  Any amounts not paid within thirty (30) days of the date of invoice shall accrue interest at the rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is less.  Client agrees to pay invoices via electronic funds transfer and will provide to Line-Scape the necessary information to authorize these transactions during the Term.

b)     Fee adjustments.  Upon thirty (30) days prior written notice to Client and not more than once in each twelve-month period during the Services Term, Line-Scape shall be entitled to increase the Fees prospectively (and in no event retroactively) due under any Order Form or Statement of Work.  The amount of any such increase shall not exceed the greater of: (i) ten percent (10%), or (ii) the percentage change in the U.S. Consumer Price Index for All Urban Consumers (CPI-U) published by the U.S. Bureau of Labor Statistics over the preceding twelve (12) month period.

6.     Information Security, Service Availability and Continuity

a)     Privacy Requirements.  “Personal Information” means information that identifies, relates to, or describes an identifiable natural person, or, where applicable, the meaning set forth in the California Consumer Protection Act (“CCPA”). “DP Law” means the applicable data privacy legislation or governmental regulation of any jurisdiction in which Client or Line-Scape operate (including, but not limited to the CCPA), and any applicable implementing laws, regulations, and secondary legislation as amended or updated from time to time.  Client shall provide any notifications and/or obtain any necessary consents from subjects of Personal Information and any relevant regulatory authorities required by DP Law for any Personal Information processed through the Licensed Platform, and shall promptly notify Line-Scape of any subsequent revocation of required consent or requests to cease processing of Personal Information.  Client authorizes Line-Scape to disclose or transfer Personal Information to, or allow access to Personal Information by, third parties solely for purposes of providing the Services.

b)     Licensed Platform and Services Availability; Updates.  During the Services Term, Line-Scape shall make the Licensed Platform and Services available to Client in accordance with the service levels set forth in the SLA.   Line-Scape may modify the Licensed Platform and any features and functionality of the Licensed Platform from time to time, in its sole discretion, through release and implementation of Updates.

c)     Information Security, Business Continuity and Disaster Recovery Policies.   Line-Scape shall maintain commercially reasonable written information security, disaster recovery, and business continuity policies with respect to the Licensed Platform and Service and shall provide summaries of such policies to Client upon request.

d)     Suspension of Services.  In the event of Client’s breach of this Agreement, including but not limited to breach of its obligations under Sections 2(b) or failure to timely pay amounts when due, or upon occurrence of any event presenting an unreasonable threat to the performance, security or stability of the Line-Scape Licensed Platform, Line-Scape may suspend the Services, Professional Services, and Client’s and/or any Authorized User’s access to the Licensed Platform, in its sole discretion and without liability, until either Client remedies its breach or the unreasonable threat has been reasonably mitigated.

7.     Confidentiality.

a)     Client Proprietary Information.  Except as reasonably necessary to provide the Services to Client under this Agreement, Line-Scape will not disclose Client Proprietary Information within its possession, custody or control to any third party to this Agreement without: (i) Client’s written authorization, or (ii) prior written notice to Client, if such notice is permitted to be given by applicable law, in the event Line-Scape is compelled to disclose such information by subpoena or other legal process.  Notwithstanding the foregoing, Client acknowledges and agrees that Line-Scape will disclose and may make readily accessible certain Client Proprietary Information to Authorized Users through normal operation of the Licensed Platform.

b)     Line-Scape Proprietary Information.  Client acknowledges and agrees that the Line-Scape Proprietary Information constitutes and contains valuable proprietary information and trade secrets of Line-Scape, and may embody substantial creative efforts and confidential information, ideas, and expressions.  Client therefore agrees: (a) not to use or permit use of the Line-Scape Proprietary Information for any purpose other than in connection with its rights and obligations under this Agreement nor to disclose the Line-Scape Proprietary Information except to those of its employees and Authorized Users with a legitimate business need to access such Line-Scape Proprietary Information; (b) to keep confidential and protect the Line-Scape Proprietary Information from unauthorized dissemination and use, taking reasonable steps and precautions (including without limitation informing Authorized Users of their obligations of confidentiality and restricted use of the Line-Scape Proprietary Information and requiring compliance therewith) to protect the Line-Scape Proprietary Information that are at least as protective as steps taken by Client to protect its own information that it regards as confidential and proprietary (but in no event less than commercially reasonable measures); (c)  not to disclose or otherwise provide to any third party, without the prior written consent of Line-Scape, any Line-Scape Proprietary Information or any part or parts thereof; (d) to undertake whatever action is reasonably necessary to prevent or remedy any breach of Client’s confidentiality obligations set forth herein or any other unauthorized use or disclosure of any Line-Scape Proprietary Information; and (e) not to remove or destroy any proprietary or confidential legends or markings placed upon or contained within the Line-Scape Proprietary Information.  For the avoidance of doubt, Client shall be responsible for breach of this Section 7(b) by any of its Authorized Users, employees, contractors, agents or representatives.

c)     Equitable Relief.  Each party, as a recipient of Client Proprietary Information or Line-Scape Proprietary Information as applicable, acknowledges and agrees that, due to the unique nature of such information, there will be no adequate remedy at law to compensate the other party for its breach of this Section 7, and that any such breach would allow third parties to compete unfairly the other party resulting in irreparable harm that would be difficult to measure and for which monetary damages would be inadequate to compensate for the breach.  Therefore, each party agrees that upon its breach or threatened breach of this Section 7, the aggrieved party shall be entitled to injunctive and other appropriate equitable relief without the necessity of posting bond, in addition to whatever remedies it may have at law, hereunder, or otherwise.

8.     Indemnification

a)     By Line-Scape. Line-Scape shall indemnify and defend Client against any third-party claim asserting that the Licensed Platform, as and when made available to Client by Line-Scape and when used for the purpose and in the manner specifically authorized by this Agreement and the documentation applicable to the Licensed Platform, infringes upon any third-party’s U.S. patent, registered copyright, or trademark or other intellectual property rights.  Line-Scape’s obligation under the foregoing indemnity is contingent upon Client: (i) promptly giving notice to Line-Scape within ten (10) days after the date Client first receives notice of the applicable infringement claim (provided that later notice shall relieve Line-Scape of its liability and obligations only to the extent that Line-Scape is prejudiced by such later notice); (ii) allowing Line-Scape to have sole control of the defense or settlement of the claim provided that Client consent shall be required for any settlement which requires Client to pay amounts for which Line-Scape has not indemnified Client or Client to sign any admission of infringement or fault, such consent not to be unreasonably withheld; (iii) reasonably cooperating with Line-Scape during defense and settlement efforts; and (iv) not making any admission, concession, consent judgment, default judgment or settlement of the applicable infringement claim or any part thereof (unless otherwise agreed by Line-Scape in writing).  Client may monitor any such litigation or proceeding at its own expense using counsel of its choosing.  If any applicable infringement claim is initiated, or in Line-Scape’s sole opinion is likely to be initiated, then Line-Scape may, at its option and expense, (i) modify or replace all or the allegedly infringing part of the Licensed Platform or other services so that it is no longer allegedly infringing; or (ii) procure for Client the right to continue using the allegedly infringing part of the Licensed Platform; (iii) remove all or the allegedly infringing part of the Licensed Platform; or (iv) immediately terminate the Agreement.  Notwithstanding anything herein to the contrary, Line-Scape shall have no obligation to Client under this Section 8(a) with respect to any claim based upon: (i) Client’s use of the Licensed Platform or Services in combination with any hardware, software, technology, processes, data or methodology not provided by Line-Scape for Client’s use; (ii) alleged infringement of Client Data or any Client Mark upon the Intellectual Property Rights of a third party; (iii) modifications to the Licensed Platform or Services made by any person or entity other than Line-Scape or its Affiliates; or (4) Client’s continued use of the Licensed Platform or Services after notice of the alleged or actual infringement from the claimant, Line-Scape, or any appropriate authority. This Section 8(a) states Client’s and its Affiliates’ sole and exclusive rights and remedies, and Line-Scape’s and its Affiliates’ entire obligations and liability, for infringement of any Intellectual Property Right.

b)     By Client.  Client will indemnify, defend and hold harmless Line-Scape, its Affiliates, and their respective successors, assigns, representatives, agents, officers, directors, employees, contractors and licensors from and against any claims, demands, damages, costs or expenses (including reasonable and necessary attorney’s fees), or losses alleged by a third party, arising from or relating to: (1) Client’s breach of this Agreement; (2) an Authorized User’s use of the Licensed Platform and Services or use of the Licensed Platform and Services using log-in credentials assigned to an Authorized User; (3) alleged infringement of any Client Data or Client Marks on the Intellectual Property Rights of a third party; (4) Client’s contractual agreement or business relationships with a third party (including but not limited to another Line-Scape customer); and (5) Client’s negligence, willful misconduct, or violation of applicable law.

9.     Warranties; Disclaimers

1. Mutual Warranties. Each party represents and warrants that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against it in accordance with the terms of this Agreement; (b) no authorization or approval from any third party is required in connection with its execution, delivery, or performance of this Agreement; and (c) during the term it shall use commercially reasonable measures to prevent introduction or transmission of viruses, worms, trojans, malicious code, or other malware to or through the Licensed Platform and Services.
2. Line-Scape Warranties. Line-Scape represents and warrants that during the Services Term, the Licensed Platform and Service shall materially conform to the functional specifications set forth in the Documentation.  Client’s exclusive remedy, and Line-Scape’s entire liability, for breach of the foregoing warranty shall be re-performance of the Services by Line-Scape.
3. Client Warranties. Client represents and warrants that the Client Data processed through the Licensed Platform is accurate in all material respects, and that Client has all necessary right, license and authority to grant to use and process the Client Data through the Licensed Platform and Services.
4. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT (INCLUDING ANY EXHIBIT HERETO), NEITHER PARTY: (A) MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED IN FACT OR BY OPERATION OF LAW, OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (B) DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE; AND (C) DOES NOT WARRANT THAT THE LICENSED PLATFORM OR SERVICE ARE OR WILL BE ERROR-FREE OR MEET CLIENT’S REQUIREMENTS. Without limiting the foregoing, Client acknowledges that: (1) certain Client Data transmitted or stored through the Licensed Platform may be exported from and/or accessed through the Licensed Platform; (2) that the Licensed Platform and Services are not intended and should not be used for back-up or long-term storage of Client Data and that any such use shall be at Client’s sole risk; (3) many factors outside of Line-Scape’s reasonable control (including but not limited to the hardware, software, network, telecommunications services, and network traffic used by an Authorized User to access the Licensed Platform and Services) may impact performance of and ability of Client’s Authorized Users to use the Licensed Platform and Services, and that Line-Scape shall not be liable for any performance or access issues caused by such factors; and (4) Client’s obligations under this Agreement are not contingent upon the delivery of any future functionality or feature of the Licensed Platform or Services.

10.  Limitation of Liability

1. EXCEPT FOR CLIENT’S BREACH OF ITS OBLIGATIONS UNDER SECTION 2(b) OF THIS AGREEMENT, NEITHER PARTY (NOR THEIR RESPECTIVE AFFILIATES) SHALL BE LIABLE FOR: (I) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, OR (II) ANY LOSS OF BUSINESS, GOODWILL, PROFITS, DATA, SALES OR REVENUE, WORK STOPPAGE, OR COMPUTER FAILURE OR MALFUNCTION, IN EACH CASE WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LINE-SCAPE’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE LESSER OF: (1) FEES ACTUALLY PAID BY CLIENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT, ACT, OR OMISSION GIVING RISE TO A CLAIM OR CLAIMS; OR (2) $500,000.00.
2. THE LOCATIONS OF LINES, PIPELINES, AND OTHER UNDERGROUND FACILITIES ARE REPORTED BY THE FACILITY OPERATORS PURSUANT TO STATE LAW, THERE IS NO GUARANTEE THAT THE REPORTED LOCATIONS ARE COMPLETE AND ACCURATE, AND CLIENT MAY SET CRITERIA IN THE SERVICES TO DETERMINE WHETHER OR NOT TO DEPLOY RESOURCES TO MARK THE LOCATION OF UNDERGROUND FACILITIES AT A PARTICULAR PROJECT SITE.  LINE-SCAPE, LLC PROVIDES MAPPING SERVICES FOR THE REPORTED FACILITY LOCATIONS FOR INFORMATIONAL PURPOSES ONLY, AND SHALL NOT BE HELD LIABLE FOR ERRORS OR INACCURACIES IN THE UNDERLYING LOCATION DATA REPORTED BY FACILITY OPERATORS OR CONTAINED IN CLIENT DATA, IN THE FAILURE OF ANY FACILITY OPERATOR TO REPORT FACILITY LOCATIONS, IN THE FAILURE OF ANY FACILITY OPERATOR OR ITS REPRESENTATIVES TO ACCURATELY MARK THE LOCATION OF ANY UNDERGROUND FACILITY LOCATIONS ON-SITE, THE DETERMINATION OF ANY FACILITY OPERATOR OR ITS REPRESENTATIVES AS TO WHETHER OR NOT TO MARK THE LOCATION OF ANY UNDERGROUND FACILITY ON-SITE, OR ANY DAMAGE, INJURY OR LOSS CAUSED IN CONNECTION WITH EXCAVATION EVEN IF DAMAGE OR LOSS IS CAUSED BY OR ALLEGED TO BE CAUSED BY A NEGLIGENT ACT OR OMISSION BY LINE-SCAPE, LLC. It is incumbent on an excavator to note and follow any signage indicating the presence of an underground facility which may not be marked, including but not limited to abandoned facilities, and exercise prudent digging practices to avoid potentially serious injury, death, or damage to property. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, LINE-SCAPE’S ENTIRE LIABILITY TO CLIENT, AND CLIENT’S SOLE REMEDY AND RECOVERY, FOR ANY LOSS, DAMAGE OR INJURY ARISING FROM OR IN CONNECTION WITH ANY DAMAGE TO LINES, PIPELINES, AND OTHER UNDERGROUND FACILITIES IN CONNECTION WITH USE OF THE SERVICES TO EVALUATE A SPECIFIC SITE (A “SCREENING SITE”) CAUSED IN ANY WAY BY CLIENT’S OR A THIRD PARTY’S RELIANCE ON THE SERVICES TO PROVIDE MAPPING OF REPORTED FACILITY LOCATIONS SHALL BE LIMITED TO THE ACTUAL LABOR, EQUIPMENT, AND MATERIAL COSTS, BUT EXCLUDING ANY AND ALL OTHER COSTS OR BETTERMENT, INCURRED BY CLIENT TO REPAIR DAMAGE TO CLIENT’S UNDERGROUND LINES, PIPELINES, AND OTHER UNDERGROUND UTILITIES (“RESTORATION COSTS”) AT SUCH SCREENING SITE, SUCH RESTORATION COSTS NOT TO EXCEED FIVE THOUSAND DOLLARS ($5,000.00).

11.  Compliance

Each party acknowledges that it and the other party may have unique compliance obligations relating to each party’s respective industry and business operations.  By entering into this Agreement, neither party is transferring to the other any liability for its failures to meet its compliance obligations arising under law, governmental regulation, industry licensure or certification requirements, or contract.

12.  Insurance

1. Client agrees that it shall, at its sole expense, obtain and maintain in effect at all times during the Term of this Agreement the following insurance coverages with the following minimum limits of coverage:
   1. Commercial General Liability in a form reasonably equivalent to the latest filed and approved CG 00 01 (including commercially acceptable endorsements) with limits of at least $1,000,000 per occurrence and $2,000,000 aggregate coverages;
   2. Worker’s Compensation to the extent required by the applicable state statutes in each jurisdiction which Client’s personnel will be using the output of the Licensed Platform in connection with Client’s business operations; and
   3. “Special cause of loss” form property insurance covering loss or damage to Client-owned property including but not limited to utility lines, underground or above-ground facilities, and other property made the subject of use of the Licensed Platform to perform location mapping analysis in an amount not less than the full replacement cost of such property, including Business Interruption coverage for any interruption of operations caused by damage to such property.

Commercial General Liability coverage shall include Line-Scape and its Affiliates, officers, directors and employees as additional insureds via CG 20 10 and CG 20 37 endorsements or the equivalents.  Each policy shall: (1) be issued by insurance companies having any A.M. Best Rating of A – XII or better or such equivalent credit rating issued by another recognized rating agency; (2) provide that the insurance companies and any self-insured entity waive all rights of subrogation for such amounts against Line-Scape and its Affiliates, officers, directors and employees; (3) provide not less than thirty (30) days prior written notice of cancellation to any policy required to be maintained under this Section 12; and (4) be primary to any other insurance available to Line-Scape.  Any deductibles or self-insured retentions are the sole responsibility of the named insured under the policy.

13.  Miscellaneous.

a)     Non-assignment; Binding Agreement.  Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by either party, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of the other party, which consent will not be unreasonably withheld.  Notwithstanding the foregoing, upon notice to the non-assigning party and without requiring consent: (i) Line-Scape may assign this Agreement to an Affiliate, and (ii) either party may assign this Agreement to an acquirer or the surviving entity in the event of a reorganization, merger, acquisition or sale of all or substantially all of the assignor’s assets, without the prior written consent of the non-assigning party, upon notice to the non-assigning party provided that the assignee is not a commercial competitor to the non-assigning party.  This Agreement will be binding upon and will inure solely to the benefit of the parties and their respective successors and permitted assigns.  Any assignment in violation of the foregoing will be null and void.

b)     Notices.  Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by certified mail, return receipt requested, (c) sent by overnight air courier, or (c) sent by electronic mail with a copy sent U.S. First Class mail postage prepaid, in each case with delivery confirmation or read receipt, to the address set forth in the Order Form.  Notice will be deemed to be given on the date of delivery.  Either party may change its address for notice by sending a notice in accordance with this section, otherwise the mailing and email addresses from the most recent Order Form shall be used.

c)     Waiver; Amendment.  A delay or failure by a party in its exercising its rights and remedies provided for in this Agreement is not and will not be a waiver of any right.  No waiver will be binding unless it has been consented to in writing by the party against whom such waiver is to be enforced. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.  The provisions of this Agreement, but excluding any terms set forth in an Order Form or Statement of Work, may be amended during the Term at any time by Line-Scape upon posting of amended terms available to Client through the Licensed Platform.  In the event Client does not agree to a posted amendment or modification, Clients’ sole remedy shall be to elect to terminate this Agreement within thirty (30) days of the date such amendment or modification becomes effective.  The provisions of an Order Form or Statement of Work may only be amended or modified by a writing executed by duly authorized representatives of each party.

d)     Force Majeure.  In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, epidemic, flood, hurricane, riots, acts of God, telecommunications outage not caused by the obligated Party, or other similar causes) (“Force Majeure Event”), the affected party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected party: (a) provides the other party with prompt notice of the nature and expected duration of the Force Majeure Event; (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such Force Majeure Event; (c) provides periodic notice of relevant developments; and (d) provides prompt notice of the end of such Force Majeure Event.  Notwithstanding the foregoing, any delay in Client’s obligations to pay any monetary amounts when due are excused only to the extent a Force Majeure Event interrupts Client’s ability to transmit any payment to Line-Scape.

e) Publicity. Client grants to Line-Scape the right to cite Client as a customer of Line-Scape or its Affiliates, and use Client’s name in promotional material, publications, case studies, press releases or other forms of publicity relating to this Agreement.

f)      Severability; Reformation.  If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement.  If the parties fail to agree on such an amendment, such invalid term, condition or provision will be: (1) subject to judicial reformation so as to be enforceable to the maximum extent permitted by applicable law, or, if judicial reformation is not available; (2) severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.

g)     Integration.  This Agreement is the final, complete, and exclusive expression of the agreement between the parties regarding the subject matter hereof. This Agreement supersedes and replaces, and the parties disclaim any reliance on, all previous oral and written communications, representations, proposals, understandings, undertakings, and negotiations with respect to the subject matter hereof and apply to the exclusion of any other terms which are implied by trade, custom, practice, or course of dealing.

h)     Counterparts.  This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement. This Agreement may be executed by electronic means such as by pdf or Docusign or any similar means.

i)      Relationship. The relationship between the parties is that of independent contractors, and nothing in this Agreement shall be deemed to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

j)      Dispute Resolution.  Without limiting either party’s right to seek immediate equitable relief under the provisions of Section 7(c) or as may otherwise be available to such party under applicable law, in the event of a dispute arising between the parties to this Agreement, the parties shall first attempt to resolve such dispute informally.  An aggrieved party shall notify the other party of the existence of the dispute and each party shall thereafter, within a reasonable period of time, designate representatives to meet and/or confer to attempt to resolve such dispute in good faith.  In the event the parties are unable to resolve such dispute in good faith within not less than thirty (30) days after the first meeting or conference of such designated representatives for such purpose, either may provide notice to the other terminating such discussions and/or proceed to formal legal action to enforce a right or obligation under this Agreement.

k)     Choice of Law; Mandatory Venue; Attorney’s Fees.  The rights and obligations of the parties under this Agreement will be governed by the laws of the State of Texas without regard to its conflicts of laws provisions.  Any action arising out of or relating to this Agreement or the subject matter of this Agreement shall be brought exclusively in the state and federal courts serving Dallas County, Texas, and each party irrevocably agrees to submit to the jurisdiction of such courts and waives any defense to the exercise of such jurisdiction including but not limited to any rights under the doctrine of forum non conveniens.  In any court action to enforce this Agreement, the prevailing party, if any, will be entitled to its costs and reasonable attorney’s fees, in addition to any other relief to which that party may be entitled. A party shall be a “prevailing party” if it receives relief on the merits of its claim by an enforceable judgment or injunctive order.  In the event that both parties qualify as a “prevailing party” in any legal action, each shall bear its own legal fees and costs, notwithstanding anything herein to the contrary.

l)      Non-Solicitation. Client acknowledges and agrees that the employees and contractors of Line-Scape who perform Professional Services are a valuable asset to Line-Scape, that Line-Scape expended significant resources in recruiting and training such employees and contractors, and that such employees and contractors are and would be difficult for Line-Scape to replace.  Accordingly, Client agrees that, for the Term and for a period of twelve (12) months thereafter, it will not offer to retain any such employee or contractor with whom it had contact during the term, whether as an employee, independent contractor or otherwise.  Notwithstanding the foregoing nothing in this Agreement shall preclude Client from, nor precipitate liability to Line-Scape for: (1) engaging in general and non-targeted recruitment of prospective employees or contractors such as through advertising, job postings, requests for proposal, or participating in public job fairs; or (2) hiring, offering, attempting to employ, or entering into an agreement with any person employed with or providing services to Line-Scape during the Term or the twelve (12) months thereafter if such person or company seeks unsolicited employment or business opportunities in response to the general recruitment activities permitted under this section.

m)   Export Restrictions.  Client shall not permit any Authorized User or third party to access or use the Licensed Platform or Services, or export any software provided by Line-Scape or otherwise remove it from the United States to, a country subject to sanction by the United States Office of Foreign Assets Control.

n)     Captions. The captions and section headings appearing herein are included solely for convenience of reference and are not intended to affect the interpretation of any provision of this Agreement.