Master Services Agreement

This Master Services Agreement ("MSA") is entered into by and between Fieldguide, Inc. ("Fieldguide") and the entity or person placing an order for or accessing any Services ("Customer" or "you"). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "you" or "Customer" reference your company.

This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from Fieldguide pursuant to any Fieldguide ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Form(s)”) and sets forth the basic terms and conditions under which those products and services will be delivered.

The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer's initial access to the Services (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this MSA.

‍BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.

1. DEFINITIONS
1.1 “Agreement” means this Master Services Agreement, including any exhibits and schedules attached hereto, and all Order Forms.
1.2 “Affiliate” means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party.
1.3 “Beta Services” means services or features identified as “alpha,” “beta,” “preview,” “early access,” or “evaluation,” or words or phrases with similar meanings.
1.4 “Control” means 50% or greater voting power, or otherwise having the power to govern the financial and the operating policies or to appoint the management of an organization.
1.5 “Connected Application” means Customer’s or a third party’s web-based, mobile, or other software application that is made available by Customer or its Users.
1.6 “Customer Data” means any data in electronic form that Customer or Users make available through the Platform.
1.7 “Documentation” means Fieldguide's user guides and other end user documentation for the Services made available by Fieldguide to its customers generally.
1.8 "Fees” means any fees payable for the Services under the Order Form.
1.9 “Force Majeure Event” means an event which is unforeseeable, beyond the control of the party affected, and cannot be remedied by the exercise of reasonable diligence, including without limitation: acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Fieldguide's possession or reasonable control, and denial of service attacks.
1.10 “Implementation Services” means any implementation services or other services that Company will provide to Customer under this Agreement as described in the applicable Order Form.
1.11 “Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
1.12 "Fieldguide Materials" means all software, specifications, documentation and systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware and other technologies and inventions, technical or functional descriptions, requirements, plans or reports, that are provided or used by Fieldguide in connection with the Services or otherwise comprise or relate to the Services or the Platform. Fieldguide Materials do not include Customer Data or Third-Party Materials.
1.13 “Platform” means Fieldguide’s proprietary platform of servers, software and technology used to provide the Services.
1.14 “Security Measures” means the technical and organizational safeguards listed at https://www.fieldguide.io/security.
1.15 “Services” means the services that Fieldguide will provide to Customer under this Agreement as described in the Order Form, which may include without limitation access to the Platform and associated Implementation Services.
1.16 “Term” means the term of this Agreement, which will begin on the Effective Date and continue for the subscription period set forth in the Order Form, unless otherwise terminated in accordance with this Agreement.
1.17 “Third-Party Materials” means software or other components that are licensed to Fieldguide by third parties for use in the Services, including but not limited to open source software.
1.18 “Users” means employees, agents, consultants, users or representatives authorized by Customer to access or use the Services.

2. THE SERVICES
2.1 Customer Rights to the Services. Subject to the terms and conditions set forth in this Agreement and the applicable Order Form, Fieldguide grants to Customer a limited, non-transferable/non-assignable (except as set forth in the Agreement), non-exclusive right to access and use the Services during the Term solely in the form provided by Fieldguide to enable its Users to access the Services functionality solely for lawful internal business purposes.
2.2 Providing the Services. Fieldguide is constantly innovating in order to provide the best possible experience for its customers. Customer acknowledges and agrees that the form and nature of the Services that Fieldguide provides may be modified from time to time without prior notice to Customer, provided that the overall functionality of the Services is not materially decreased.
2.3 Fieldguide Ownership. All rights and title in and to the Platform, the Services, Fieldguide Materials and Documentation, including all Intellectual Property Rights inherent therein, belong exclusively to Fieldguide and its licensors. No rights are granted to Customer other than as expressly set forth in this Agreement.
2.4 Connected Applications. The Platform may contain features designed to interoperate with Connected Applications. To use such features, Customer or its Users may be required to obtain access to such Connected Applications from their providers, and grant Fieldguide access to Customer’s or its Users’ account(s) on such Connected Applications. If Customer uses a Connected Application with the Services, Customer grants Fieldguide permission to allow the Connected Application and its provider to access Customer Data solely as required for the interoperation of that Connected Application with the Services. Any acquisition by Customer of Connected Applications, and any exchange of Customer Data between Customer and any Connected Application provider, product or service, is solely between Customer and the applicable Connected Application provider. Fieldguide does not warrant or support Connected Applications. Fieldguide is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by any Connected Application or its provider.
2.5 Supplemental Terms. Some Services may be subject to additional product-specific terms as posted by Fieldguide from time to time and are hereby expressly incorporated herein by reference. Without limiting the foregoing, if Customer accesses or uses any AI features of the Services, Customer is subject to and shall comply with the AI Supplemental Terms, incorporated herein by reference.
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3. CUSTOMER DATA
3.1 Customer Ownership. Except for the limited rights expressly granted to Fieldguide hereunder, Customer retains all rights, title and interest in and to all Customer Data, including without limitation all related intellectual property rights inherent therein. Customer is solely responsible for the accuracy, quality, legality, reliability, and appropriateness of all Customer Data. Customer shall ensure that it is entitled to transfer the relevant Customer Data to Fieldguide so that Fieldguide and its service providers may lawfully use, process, and transfer the Customer Data in accordance with this Agreement on Customer’s behalf.  
3.2 Authorization. Customer grants Fieldguide a nonexclusive, worldwide, royalty-free right to reproduce, display, adapt, modify, transmit, distribute and otherwise use the Customer Data (a) to maintain, provide, and improve the Services under this Agreement; (b) to prevent or address technical or security issues and resolve support requests; (c) at Customer's direction or request, including processing initiated by Users through their use of the Platform; and (d) as otherwise required by applicable law. No rights to the Customer Data are granted to Fieldguide hereunder other than as expressly set forth in this Agreement.
3.3 Security. Fieldguide shall use commercially reasonable measures to maintain the security and integrity of the Services and the Customer Data and to provide technical and organizational safeguards against accidental, unlawful or unauthorized access to or use of, destruction, transfer, disclosure or alteration of Customer Data.

4. RESTRICTIONS, RESPONSIBILITIES AND RIGHTS
4.1 Customer Restrictions. Customer shall not (and will not allow its Users or any third party to): (i) modify, copy, display, republish or create derivative works based on the Services or Fieldguide Materials; (ii) reverse engineer the Services; (iii) access the Services in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the Services; (iv) use the Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (v) use the Services to post or send infringing, obscene, threatening, libelous, or otherwise unlawful material; (vi) use the Services to access blocked services in violation of applicable laws; (vii) upload to the Services or use the Services to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (viii) use the Services to run automated queries to web sites; (ix) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (x) attempt to gain unauthorized access to the Services or its related systems or networks; (xi) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Services; or (xii) without the express prior written consent of Fieldguide, conduct any benchmarking or comparative study or analysis involving the Services for any reason or purpose except, to the limited extent absolutely necessary, to determine the suitability of the Services to interoperate with Customer’s internal systems. In addition, Customer agrees that it shall (a) only permit access to the Services by Users; and (b) not access or use the Services from an embargoed nation or any other country/region that becomes an embargoed nation, in violation of applicable export compliance laws.
4.2 Customer Responsibilities.
4.2.1 Customer agrees and understands that (i) it is responsible for all activity of Users and for Users’ compliance with this Agreement; (ii) it shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of, the Services, and notify Fieldguide promptly of any such unauthorized access or use; and (c) comply with all applicable laws in using the Services. The Services shall not include Customer’s access connection to the Internet or any equipment necessary for Customer to make such connection, which shall be Customer’s sole responsibility. Customer shall be responsible for supplying Fieldguide with any technical data and other information Fieldguide may reasonably request to allow Fieldguide to provide the Services to Customer. Customer represents that it has obtained all consents necessary for Customer and Users to use the Services.
4.2.2 Customer shall provide Fieldguide with complete and accurate account, billing and payment information and keep such information up to date during the Term. Customer agrees not to provide any person or entity with access to the Services using Customer’s user name, password or other security information except as permitted under this Agreement and shall prevent Users from sharing their Fieldguide account access or login information with any other party, including any other Customer employee or third-party contractor. Customer is responsible for maintaining the security and confidentiality of all passwords associated with Customer’s account. If Customer becomes aware of any unauthorized or illegal use of Customer’s account, Customer shall immediately notify Fieldguide.
4.3 Fieldguide Rights.
4.3.1 Fieldguide reserves the right to suspend Customer’s access to the Services in the event Fieldguide believes Customer’s use of the Services represents an imminent threat to Fieldguide’s users or network, or if so directed by a court or competent authority. In such cases, Fieldguide will (i) suspend such the Services only to the extent reasonably necessary to prevent harm to Fieldguide’s users or network; (ii) use its best efforts to promptly contact Customer and give Customer the opportunity to change the configuration of its server(s) accordingly and/or work with Customer to resolve the issues causing the suspension of such the Services; and (iii) reinstate any suspended the Services promptly after the issue is abated. Without limiting the foregoing, Fieldguide reserves the right to manage bandwidth or route traffic across the Internet in a commercially optimal way, provided such actions do not compromise Fieldguide’s obligations regarding the Customer Data.
4.3.2 Fieldguide shall have the right to (i) remove or limit distribution of Customer Data that Fieldguide deems reasonably necessary or appropriate if Fieldguide concludes that any Customer Data violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of any individual or could create liability for Fieldguide; (ii) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal use of the Services; and (iii) terminate or suspend Customer’s access to all or part of the Services for any violation of this Agreement. Notwithstanding the foregoing, Fieldguide is not obligated to review Customer Data before it is posted via the Services, and Fieldguide cannot ensure prompt removal of objectionable Customer Data after it has been posted. Accordingly, Fieldguide assumes no liability for any action or inaction regarding transmissions, communications or content provided by any User or third party. Fieldguide disclaims all liability or responsibility for exercise or nonexercise of its rights under this Section 4.3.2.
4.3.3 Fieldguide shall have the right to (i) use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Services; (ii) utilize all other information provided by Customer (including Customer Data) relating to the Services to the extent necessary to comply with any legal requirements; (iii) utilize Customer Data, aggregated or otherwise, for lawful business purposes, including but not limited to improving the Services and Customer experience; and (iv) utilize anonymized and/or aggregated data to protect and improve the Services, provided that Customer’s and Users’ identity may not be derived from such data. The foregoing shall in no way limit Fieldguide’s confidentiality obligations set forth in this Agreement.
4.4 THIRD-PARTY MATERIALS. Customer acknowledges that the Services may include Third Party Materials. Fieldguide represents that these Third-Party Materials will not diminish the license rights provided herein or limit Customer’s ability to use the Services in accordance with the applicable Documentation, and the use or inclusion of Third-Party Materials in the Services will not create any obligation on the part of Customer to license Customer’s proprietary software or products under any open source or similar license.
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5. FEES; PAYMENT TERMS
5.1 Fees. Customer shall pay Fieldguide the Fees set forth in an Order Form in accordance with this Section. Customer agrees and understands that if Customer does not pay Fieldguide the Fees due for the Services within the agreed time period, Fieldguide reserves the right to suspend Customer’s access and use of the Services until such Fees are paid as provided in Section 5.4. If Customer believes that Fieldguide has billed Customer incorrectly, Customer must contact Fieldguide no later than ten (10) days prior to the due date on the invoice in which the error or problem appeared, in order to receive an adjustment or credit (if applicable). Fieldguide will reissue a corrected invoice, which will remain due on the same date, unless the due date is the error in question.
5.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Fieldguide's income.
5.3 Payment. Unless otherwise provided in an Order Form, Customer shall pay all Fees within thirty (30) days after the date of the invoice therefore. Customer shall make all payments hereunder in U.S. dollars by the payment method specified in the invoice. Customer shall make payments to the account specified in the applicable Order Form or such other account as Fieldguide may specify in writing from time to time.
5.4 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, Fieldguide may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law. If such failure continues for five (5) days following written notice thereof, Fieldguide may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer by reason of such suspension.
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6. WARRANTIES
6.1 Mutual Warranty. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
6.2 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, (A) ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER; (B) FIELDGUIDE EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE; AND (C) FIELDGUIDE MAKES NO WARRANTY REGARDING NON-INTERRUPTION OF USE OR FREEDOM FROM BUGS, AND MAKES NO WARRANTY THAT SERVICES WILL BE ERROR-FREE.
6.3 Beta Services. Customer may choose to use Beta Services in its sole discretion. Notwithstanding anything to the contrary in this Agreement or otherwise: (a) Beta Services may not be supported and may be changed or terminated at any time without notice; (b) Beta Services may not be as reliable or available as the Services; (c) Beta Services have not been subjected to the same security requirements, measures, and auditing as the Services; (d) Beta Services constitute Fieldguide’s Confidential Information; and (e) BETA SERVICES ARE PROVIDED “AS IS'' WITHOUT ANY WARRANTY, INDEMNITY OR SUPPORT AND FIELDGUIDE’S LIABILITY FOR BETA SERVICES WILL NOT EXCEED FIFTY DOLLARS (US $50).
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7. CONFIDENTIAL INFORMATION
7.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in the Order Form hereunder), the Customer Data, the Fieldguide Materials, and each party’s respective business and marketing plans, technology and technical information, product designs, and business processes. The obligations in this Section shall not apply to any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without an obligation of confidentiality; (iii) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (iv) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality.
7.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. Either party may disclose Confidential Information to its personnel and agents who are subject to confidentiality obligations at least as restrictive as those of this Agreement. Receiving Party will use at least the same level of care to prevent unauthorized use of the Confidential Information as it uses for its own confidential and proprietary information of like kind, but in no event less than a reasonable standard of care.
7.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
7.4 Remedies. If the Receiving Party breaches this Section, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts.
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8. TERM AND TERMINATION
8.1 Agreement Term. This Agreement will remain in effect for the Term. Unless otherwise set forth in the applicable Order Form, this Agreement and any Order Forms will automatically renew for successive periods of one (1) year, unless either party provides written notice of non-renewal to the other party at least thirty (30) days prior to the end of the then-current term.
8.2 Termination for Material Breach. Either party may terminate this Agreement (i) if the other party materially breaches any terms and conditions of this Agreement and does not cure such breach within thirty (30) days of receiving notice of such breach; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing, this Agreement and any Order Form shall terminate automatically in the event Customer has breached any license restriction set forth in Section 4.1 and, in Fieldguide’s determination, that breach cannot be adequately cured. If Customer terminates this Agreement for Fieldguide’s uncured material breach, Fieldguide will refund Customer, on a prorated basis, any pre-paid Fees for any Services not received.
8.3 Effect of Termination. The following provisions shall survive the termination of this Agreement and all Order Forms: Section 1 (Definitions), Section 2.2 (Fieldguide Ownership), Section 3.1 (Customer Ownership), Section 4 (Restrictions, Responsibilities and Rights), Section 5 (Fees; Payment Terms), Section 6.4 (Beta Services), Section 6.3 (Disclaimer of Warranties), Section 7 (Confidential Information), Section 8.3 (Effect of Termination), Section 9 (Indemnity), Section 10 (Limitation of Liability), and Section 11 (General Provisions). Upon termination, Customer may delete Customer’s account and all Customer Data from the Services, and Fieldguide will permanently delete such data from Fieldguide’s systems within thirty (30) business days.

9. INDEMNITY
9.1 Customer Indemnity. Fieldguide will indemnify and hold Customer harmless from and against any third-party claim against Customer alleging that Customer’s use of the Services as permitted hereunder infringe or misappropriate a third party’s valid U.S. patent, copyright, trademark or trade secret. Fieldguide shall, at its expense, defend such claim and pay damages finally awarded against Customer in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Fieldguide for such defense. If the Services, or parts thereof, become, or in Fieldguide’s opinion may become, the subject of an infringement claim, Fieldguide may, at its option: (a) procure for Customer the right to continue using the Services as set forth herein; (b) replace or modify the Services to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Fieldguide, terminate this Agreement and refund Customer, on a prorated basis, any pre-paid Fees for any Services not received. This Section 9.1 states Fieldguide’s entire liability and Customer’s sole remedy with respect to any infringement of intellectual property rights by the Services or Fieldguide Materials.
9.2 Exceptions. Fieldguide will have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by Customer; (ii) modification of the Services by anyone other than Fieldguide or its authorized agents; (iii) the combination, operation, or use of the Services with other hardware or software not provided by Fieldguide or its authorized agents where the Services would not by itself be infringing; (iv) continued use of the allegedly infringing Service after being provided non-infringing alternative or after Fieldguide has terminated the Agreement in accordance with Section 9.1 above; or (v) any breach of Customer’s obligations under this Agreement.
9.3 Fieldguide Indemnity. Customer will indemnify and hold Fieldguide harmless from and against any third-party claim against Fieldguide that is subject to Section 9.2 above or arising from or related to (i) Customer’s violation of Section 4.1 of this Agreement or (ii) any Customer Data.
9.4 Process. The indemnification obligations in this Section shall be subject to the indemnified party: (i) promptly notifying the indemnifying party in writing upon receiving notice of any threat or claim of such action; (ii) giving the indemnifying party exclusive control and authority over the defense and/or settlement of such claim (provided any such settlement unconditionally releases the indemnified party of all liability); and (iii) providing reasonable assistance requested by the indemnifying party, at the indemnifying party’s expense.
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10. LIMITATION OF LIABILITY
10.1 Waiver of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
10.2 Limitation of Monetary Damages. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT OR ANY ORDER FORM, EACH PARTY’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT AND ANY ORDER FORM SHALL BE LIMITED TO THE TOTAL AMOUNTS PAID TO Fieldguide UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF THE EVENT(S) GIVING RISE TO SUCH LIABILITY.
10.3 Applicability. THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN DO NOT APPLY TO CUSTOMER'S BREACH OF ITS OBLIGATIONS UNDER SECTION 4.1 AND WILL APPLY ONLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW. NOTHING HEREIN PURPORTS TO LIMIT EITHER PARTY’S LIABILITY IN A MANNER THAT WOULD BE UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE APPLICABLE JURISDICTION.
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11. GENERAL PROVISIONS
11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
11.2 Notices. Fieldguide may give general notices related to the Services that are applicable to all customers by email or through the Platform. All other notices required to be sent hereunder will be in writing and will be effective upon (i) personal delivery, or (ii) the second business day after mailing, in each case addressed as follows: if to Fieldguide at 2261 Market Street, #4126, San Francisco, CA 94114 to the attention of Legal Department, and, if to Customer, to Customer’s address on record in Fieldguide’s account information, or to such other address or individual as the parties may specify from time to time by written notice to the other party.
11.3 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.4 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
11.5 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including any Order Forms), without the consent of the other party, to (i) an Affiliate; or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets; provided however, if Customer assigns this Agreement pursuant to this Section 11.5 and the successor-in-interest is an existing customer of Fieldguide, Customer shall notify Fieldguide at least 30 days in advance and the parties will discuss in good faith whether the pricing and commercial terms of this Agreement need to be adjusted. In the event the parties are unable to mutually agree, Fieldguide may elect to terminate this Agreement. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.6 Subcontractors. Fieldguide may use third-party subcontractors who are subject to contractual obligations no less protective than those of this Agreement, as applicable. Fieldguide will remain responsible for their acts, omissions, and any subcontracted obligations.
11.7 Publicity.  Fieldguide may include Customer’s name and logo on its website or in other marketing materials or channels solely to reference Customer as Fieldguide customer, and subject to any trademark usage instructions provided to Fieldguide. Customer may revoke its approval at any time by contacting support@fieldguide.io.
11.8 Governing Law. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its conflicts of laws rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act. Any legal suit, action or proceeding arising out of or related to this Agreement or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of California, in each case located in the city of San Francisco, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
11.9 Force Majeure. Except for payment obligations, neither party shall be liable for delay or non-performance of its obligations hereunder (or part thereof) if the cause of delay or non-performance is due to a Force Majeure Event. The party affected shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof). The party affected shall promptly notify the other party and make reasonable efforts to mitigate the effects of the Force Majeure Event.
11.10 No Third Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns.  Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
11.11 Export Control. The Services, Fieldguide’s technology and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions.  Each party represents that it is not named on any U.S. government denied-party list.  Customer shall not, and shall not permit Users to, access or use the Services in violation of any U.S. export law or regulation.
11.12 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms and SOWs, sets forth the entire agreement of the parties and supersedes and replaces all prior or contemporaneous writings, negotiations and discussions, whether written or oral, with respect to its subject matter. Neither party has relied upon any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties set forth in this Agreement. Fieldguide reserves the right to modify the terms and conditions of this Agreement, at its sole discretion, effective upon the commencement of any renewal subscription term.  You are responsible for regularly reviewing this Agreement for updates.   CONTINUED USE OF THE SERVICES AFTER ANY SUCH CHANGES SHALL CONSTITUTE YOUR CONSENT TO SUCH CHANGES. If Fieldguide modifies this Agreement during Customer’s subscription term, and Customer objects to the updated agreement, as Customer’s exclusive remedy, Customer may choose to terminate this Agreement and cease using the Services. Notwithstanding any language to the contrary therein, no terms or conditions set forth on any Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

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Exhibit A
Service Level and Support Terms
‍The Platform shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond Fieldguide’s control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Fieldguide's entire liability, in connection with Platform availability shall be that for each period of downtime lasting longer than 60 minutes, Fieldguide will credit Customer 3% of monthly subscription fees (annual subscription fees divided by 12 months) for each period of 60 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Fieldguide) recognizes that downtime is taking place, and continues until the availability of the Platform is restored. In order to receive downtime credit, Customer must notify Fieldguide in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Platform fees in any one (1) calendar month in any event. Fieldguide will only apply a credit to future subscriptions or add-ons during the term. Fieldguide’s blocking of data communications or other services in accordance with its policies shall not be deemed to be a failure of Fieldguide to provide adequate service levels under this Agreement.

Fieldguide will provide technical support to Customer via telephone, electronic mail, or other channel (e.g., in-app support chat) on weekdays during the hours of 9:00 am through 9:00 pm Eastern Standard Time, with the exclusion of Federal Holidays (“Support Hours”). Customer may initiate a helpdesk ticket during Support Hours by emailing support@fieldguide.io. Fieldguide will use commercially reasonable efforts to respond to all helpdesk tickets within one (1) business day.