Scope Technologies US Inc. (“Scope AR”) MSA

Last updated: December 22, 2023

This Master Subscription Agreement is entered into by Scope Technologies US Inc. (“Scope AR”) and the person or entity agreeing to these terms (“You” or “Your”) and consists of (i) the terms contained herein; (ii) Scope Order Forms and SOWs (as defined below), as applicable; and (iii) other mutually executed documents (collectively, this “Agreement”). This Agreement governs Your purchase, access, and use of the Services, Professional Services, and Deliverables (each, as defined below).

By executing an Order Form that references this Agreement, using the Service, or otherwise indicating Your acceptance of this Agreement, You expressly acknowledge and agree that You have read and understand this Agreement, You agree to the terms and conditions of this Agreement, and are bound by this Agreement as of the earlier of the date of such execution, use or acceptance (the “Effective Date”). If You are authorized directly or indirectly by a third party to purchase the Services, Professional Services, and/or Deliverables on such third party’s behalf for resale to such third party, then (i) You are such third party’s “Authorized Buyer”; (ii) You are not authorized to access or use the Services, Professional Services or Deliverables notwithstanding anything contained in this Agreement to the contrary; and (iii) You agree to bind such third party to the terms and conditions of this Agreement as between Scope AR and such third party. If You acquired a subscription to the Services, Professional Services, and/or Deliverables from an Authorized Buyer, then in addition to any terms and conditions related to Your acquisition and use of the Services, Professional Services, and Deliverables pursuant to any agreement between You and such Authorized Buyer (the “Acquisition Agreement”), this Agreement contains the terms and conditions that govern Your access and use of the Services, Professional Services, and Deliverables; in the event of any conflict or inconsistency between the terms of the Acquisition Agreement and this Agreement, the terms of this Agreement shall govern. If You are entering into this Agreement on behalf of a company or other legal entity, (a) You represent and warrant that You have full legal authority to bind that entity and its Affiliates to this Agreement; and (b) You agree, on behalf of such entity and its Affiliates, to the terms and conditions of this Agreement, in which case the terms “You” and “Your” in this Agreement refer to that entity and its Affiliates. If You do not have that authority, or if You do not agree with these terms and conditions, do not execute an Order Form, use or authorize use of the Service, or otherwise indicate Your acceptance of this Agreement.

If You are accessing the Service as part of a limited trial, Your limited trial is governed by Section 9 (Limited Trial) below, which limits our responsibility and disclaims all warranties and liability.

1. DEFINITIONS.

For purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the following meanings:

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.

“App” means the Scope AR downloadable mobile applications(s) specified in the applicable Order Form through which Users may receive or access the Services.

“Deliverable” means any materials to be prepared and provided by Scope AR in the course of providing the Professional Services, as may be described in the applicable SOW.

“Documentation” means any and all written or electronic documentation specifying the functionalities or limitations of the Service, including user manuals and/or reference materials, that Scope AR generally makes available to Users.

“Fee(s)” means the fees payable by You to Scope AR (i) as specified in the applicable Order Form and/or Your purchase order for the right to access and use the Service; (ii) for any additional usage as described in Section 2.4; (iii) as specified in the applicable SOW for Professional Services; and (iv) as otherwise mutually agreed upon by the parties in writing.

“Intellectual Property Rights” means all worldwide rights in and to intellectual property, including rights to inventions, trade secrets, know-how, technology, research tools, data, software, improvements and rights of authorship and attribution, whether or not protected by patents or copyrights, and including patent applications, patents, trade secret rights, copyrights, rights in databases, domain names, trademarks, and any other intellectual property and/or proprietary right.

“Malicious Code” means viruses, worms, malware, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents or programs.

“Order Form” means a written quote or order form that references this Agreement and specifies the Service(s), Professional Services, and/or Deliverables to be provided to You by Scope AR, and is either (i) executed by Your authorized representative; (ii) referenced in a purchase order issued by You; or (iii) otherwise agreed to by Your authorized representative, each of which shall constitute “execution” of the Order Form.

“Professional Services” means the services to be provided by Scope AR as described in an SOW.

“Service(s)” means the product(s) and service(s) that are ordered by You under an Order Form, including any applicable Software and associated Scope AR offline or mobile components, as may be more fully described in the applicable Documentation. “Service” excludes all Third Party Services and features that are not provided under Your purchased Service Plan.

“Service Plan” means the Scope AR Service plan package, including all functionality, features, usage allocations (such as “scenarios” and “views”), and services associated therewith.

“SLA” means such service level agreement, if any, as may be incorporated into an Order Form.

“Statement of Work” or “SOW” means the document that describes the Professional Services and/or Deliverables, if any, to be provided by Scope AR pursuant to this Agreement, which such document may be in the form of a separate statement of work or an Order Form, provided such statement of work or Order Form incorporates the terms of this Agreement and is executed by the parties.

“Software” means software made available by Scope AR that provides certain functionality in connection with the Service, including the App but excluding all Third Party Software.

“Subscription Term” means the period for which You have purchased or otherwise procured a subscription to a Service.

“Term” has the meaning ascribed to that term in Section 10.1.

“Third Party Services” means third-party products, applications, services, networks, systems, directories, websites, databases and information, as well as Third Party Software, which a Service links to, or which You or a User may connect to, use or enable in connection with a Service.

“Third Party Software” means any third-party software (i) that the Service may require in order to function in accordance with the Documentation, details of which are set out in the Documentation; or (ii) that You or Users otherwise opt to use in connection with the Service.

“User” means an individual who (i) is authorized by You to use the Service and who has been supplied a user account by You (or by Scope AR at Your request) for the Service, or (ii) otherwise accesses or uses the Service under Your account.

“Your Data” means all electronic data or information submitted by You and/or Users to the Service in connection with use of such Service, which may include personal information of Users, employees, contractors, customers, agents, and others to whom You provide access to the Service.

2. THE SERVICE.

2.1 Access to the Service. Subject to and in accordance with the terms of this Agreement and the applicable Order Form(s), Scope AR shall make the Service available to You and Users during the applicable Subscription Term and in accordance with the Service Plan purchased by You for the purposes of (i) allowing You and Users to access and use the Service in the internal operation of Your business; and (ii) allowing You to provide the Service in conjunction with the provision of Your products and/or services to Users, and allowing such Users to use the Service in conjunction with Your products and/or services. You shall not use the Service for any purposes other than as expressly set forth in this Agreement.

2.2 Scope AR Responsibilities. Scope AR will (i) use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime; or (b) any Force Majeure Event affecting Scope AR; (ii) provide hosting and storage services for Your Data in connection with Your and Users’ use of the Service; and (iii) use commercially reasonable efforts to maintain the security and integrity of the Service and Your Data in accordance with industry standard practices.

2.3 Your Responsibilities. You are responsible for compliance with this Agreement by Your Users, employees, contractors, customers, agents, and others to whom You provide access, and for all activities that occur in User accounts. You: (i) confirm that You have read and understand Scope AR’s privacy policy at https://www.scopear.com/privacy-policy, as may be updated from time to time; (ii) consent to Scope AR’s collection, processing, and disclosure of Your Data during the Term solely as necessary for (a) the provision of the Service that You have subscribed to; (b) for legal, administrative and management purposes, such as customer service, technical support, billing and reconciliation, operational maintenance, fraud detection and prevention, as required or permitted by law; and (c) to communicate with You and Users; (iii) acknowledge and agree that for Scope AR to provide the Service, personal information may be transferred to countries outside the contracting jurisdiction; (iv) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Your Data; (v) shall maintain and require all Users to maintain the confidentiality of all login credentials for the Service; (vi) will use commercially reasonable efforts to prevent unauthorized access to, and use of, the Service, and notify Scope AR promptly of any such unauthorized access or use; (vii) will not circumvent applicable Service Plan restrictions; (viii) will comply with, and ensure all Users comply with, all applicable local, provincial, state, federal and foreign laws in using the Service; and (ix) will separately license any required or necessary Third Party Services.

2.4 Usage Allocations & Limitations. Services are subject to usage allocations and limitations, including, for example, the quantities specified in Order Forms, Documentation, and Your applicable Service Plan, and You agree to comply with all such usage allocations and limitations. You may upgrade Your Service Plan to increase certain usage allocations in accordance with Section 3.4. The Order Form sets forth the number of permitted Users and/or the applicable Service Plan, and unless otherwise agreed to in writing by Scope AR, (i) the Service may not be accessed or used by more than the number of permitted Users or in violation of the Service Plan allocations, nor may You have User accounts for more than the number of permitted Users; (ii) a User’s login credentials may not be shared with or used by any other individual; and (iii) a User’s login credentials may only be reassigned to a new individual replacing one who will no longer use the Service. Scope AR reserves the right to charge You and You agree to pay for any use of a Service in excess of the Service Plan features, usage allocations, and limitations or in violation of the Order Form.

2.5 Use Guidelines. You shall not (and shall not allow any third party to): (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as expressly permitted herein to provide the Service to Users; (ii) use the Service to send spam or duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service to send or store infringing, obscene, harmful, dangerous, inaccurate, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Service to send or store Malicious Code; (v) to the extent You or Users are subject to the US Health Insurance Portability and Accountability Act of 1996 (HIPAA), use the Service to process, store or transmit any “protected health information” as defined by HIPAA; (vi) interfere with or disrupt the integrity, performance, or security of the Service or the data contained therein; (vii) modify, adapt, hack, or attempt to gain unauthorized access to the Service or its related systems or networks; (viii) access the Service for competitive purposes or if You are a competitor of Scope AR, except with Scope AR’s express prior written consent; (ix) access the Service to monitor the Service’s availability, performance or functionality, or for any other benchmarking purposes; or (x) use all or any portion of the Service for hazardous purposes requiring fail-safe performance, such as aircraft navigation, air traffic control, or weapons systems, in which the failure of the Service could lead directly to death, personal injury, or severe physical or environmental damage.

2.6 Modifications. Scope AR may modify the features and functionality of the Service at any time; provided, Scope AR will not materially decrease the overall features or functionality of the Service during Your applicable Subscription Term without providing You at least thirty (30) days prior notice.

2.7 Future Functionality. You agree that Your purchases are not contingent on the delivery of any future features or functionality in the Service, or dependent on any oral or written public comments made by Scope AR regarding future features or functionality.

2.8 Incremental Services. From time to time, certain additional Scope AR or third-party functionality (such functionality being deemed Third Party Services) may be made available by Scope AR (in the case of third-party functionality, such functionality being made available on a pass-through basis pursuant to terms specified by the third-party provider of such functionality) for purchase by You for additional fees in accordance with mutually agreed upon terms (such terms prevailing with respect to such additional functionality in the event of any inconsistency or conflict with the terms of this Agreement).

2.9 Third Party Services. If You access or use Third Party Services, such access and use shall be governed solely by the terms and conditions of such Third Party Services. Scope AR does not endorse, is not responsible or liable for, and makes no representations or warranties as to any such Third Party Services. Scope AR is not liable for any damage or loss caused by or incurred in connection with Your or Users’ access or use of any Third Party Services, and You hereby waive any claim against Scope AR with respect to such Third Party Services.

2.10 Support. Scope AR will, at no additional charge, provide You standard customer support in the use and operation of the Service as well as the upgraded support described in an SLA incorporated into the applicable Order Form, if any.

2.11 Professional Services. If You wish to request Professional Services, You shall notify Scope AR and the parties will negotiate in good faith an applicable SOW. Upon execution of an SOW by the parties and subject to the terms and conditions set forth in Schedule 1, which is attached hereto and incorporated herein by reference, Scope AR will provide Professional Services (including the development of Deliverables) as described in such SOW.

3. FEES & PAYMENT.

3.1 Fees. Your right to access and use the Service and receive the Professional Services and Deliverables (as applicable) is subject to Your timely payment of all Fees as set forth herein and in the applicable Order Form and SOW. All amounts are payable in United States dollars unless otherwise expressly stated in the applicable Order Form or SOW. Except as otherwise expressly set forth herein or in an Order Form, (i) Fees are based on Service subscriptions and Professional Services purchased and as otherwise specified in Section 2.4; (ii) payment obligations are non-cancelable and fees paid are non-refundable; and (iii) all payments will be made without setoff or counterclaim.

3.2 Invoicing & Payment. Fees for the Service will generally be invoiced on an annual basis in advance except with respect to Fees due for upgraded Service Plans (which will generally be invoiced concurrent with such upgrade) or as otherwise set forth in the applicable Order Form. From time to time during the Term, Scope AR may calculate a “true-up” of Fees due. If Scope AR determines that the aggregate Fees paid by You are either less than or more than the actual amount due, Scope AR shall invoice or credit You, as the case may be, for the amount of such variance. If You owe additional Fees, then You shall pay the amount due in accordance with the payment terms contained herein. If a credit is due You, then the excess shall promptly be credited to Your account. Fees for Professional Services will be invoiced as stated in the applicable SOW. Unless otherwise stated in an invoice, payment of all Fees is due within thirty (30) days from the invoice date. You are responsible for maintaining complete, current, and accurate billing and contact information with Scope AR.

3.3 Overdue Payments. Any payment not received from You by the due date may accrue late charges at the rate of 1.5% of the outstanding balance per month (18% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If You fail to pay any Fees when due, in addition to Scope AR’s other remedies, we may suspend access to and use of the Service, Professional Services, and any Deliverables by You and Users pending payment of such overdue amounts.

3.4 Upgrades and Downgrades. If You choose to upgrade Your Service Plan or increase the number of permitted Users authorized to access and use a Service during the Subscription Term, any incremental fees associated with such upgrade or increase (as applicable) will be charged for the remainder of the Subscription Term and in subsequent Subscription Terms, if any. You may not downgrade to a Service Plan with lower usage allocations or reduce the number of permitted Users during a Subscription Term, but may do so for subsequent Subscription Terms by providing Scope AR with written notice at least thirty (30) days prior to the end of the then-current Subscription Term. In the event of a reduction in the number of permitted Users, You must deactivate the non-permitted Users prior to the beginning of the subsequent Subscription Term.

3.5 Taxes. Unless otherwise stated, Scope AR’s fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases pursuant to this Agreement, excluding taxes based on Scope AR’s net income. If Scope AR has the legal obligation to pay or collect Taxes for which You are responsible under this section, the appropriate amount shall be invoiced to and paid by You, unless You provide Scope AR with a valid tax exemption certificate authorized by the appropriate taxing authority.

3.6 Audit Rights. Scope AR shall have the right to use the capabilities of the Service to confirm the number of Users using the Service and any other metrics regarding use, and to confirm Your compliance with this Agreement.

4. PROPRIETARY RIGHTS.

4.1 Reservation of Rights. Each party shall retain all rights, title and interest in its respective Intellectual Property Rights. Subject only to the limited rights expressly granted herein, all rights, title and interest in and to the Services, Professional Services, and Deliverables, including all related Intellectual Property Rights, will remain with and belong exclusively to Scope AR. The rights granted to You and Users to use the Services, Professional Services, and Deliverables (if any) under this Agreement do not convey any additional rights in the Services, Professional Services, or Deliverables, or any Intellectual Property Rights of Scope AR associated therewith. No rights are granted to You or Users other than as expressly set forth herein.

4.2 Restrictions. You shall not (and shall not allow any third party to): (i) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service or any portion thereof; (ii) circumvent any user limits or other timing or use restrictions that are built into the Service; (iii) remove any proprietary notices, labels, or marks from the Service; (iv) frame or mirror any content forming part of the Service, other than as necessary for the provision of the Service; or (v) access the Service in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Service.

4.3 Your Data.  You retain all rights, title and interest in and to Your Data. Your Data is deemed Your Confidential Information under this Agreement. Scope AR will not access Your User accounts, including Your Data, except to respond to service or technical problems, or at Your request, or as necessary or permitted for the operation of the Service or Scope AR’s exercise of its rights and performance of its obligations hereunder, or as required or permitted by law or governmental order. You hereby grant Scope AR and its Affiliates a royalty-free, fully paid-up, non-exclusive, non-transferable (except as provided in Section 11.7 (Assignment)) irrevocable, worldwide license for the Term (and for thirty (30) days thereafter, or as otherwise permitted by law) to host, copy, display, and otherwise use Your Data to the extent reasonably required for Scope AR to exercise its rights and perform its obligations pursuant to this Agreement. The forgoing license shall include the right for Scope AR to use and copy Your Data for the purpose of creating aggregated and anonymized statistical analytics in respect to Service use and other Service and User parameters and characteristics (“Aggregated Statistics”). Scope AR shall own all Aggregated Statistics created from Your Data.

4.4 Feedback. Scope AR shall have a royalty-free, fully paid-up, transferable, sub-licensable, irrevocable, perpetual, worldwide, unrestricted license to implement, modify, incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback (“Feedback”) provided by You or Users relating to the operation or use of the Service, Professional Services, or Deliverables, provided that such Feedback does not contain any of Your Data. Scope AR shall have no obligation to modify the Service, Professional Services, or Deliverables to implement any Feedback provided by You or Users.

5. CONFIDENTIALITY.

5.1 Definition of Confidential Information. As used in this Agreement, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”) that (i) is designated in writing as confidential or proprietary at the time of disclosure; (ii) if disclosed orally, is identified as confidential or proprietary at the time of disclosure and for which a written summary, which is marked as confidential or proprietary, is provided to the Receiving Party within thirty (30) days thereafter; or (iii) given the nature of the information and circumstances surrounding disclosure, should reasonably be considered confidential. Notwithstanding the foregoing, the App, Services, Professional Services, Deliverables, and all pricing information, documentation, technology, specifications, technical information, product plans and designs shall be deemed to be the Confidential Information of Scope AR. Confidential Information shall not include 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 hereunder by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

5.2 Confidentiality. Except as otherwise expressly permitted pursuant to this Agreement, the Receiving Party may use the Disclosing Party’s Confidential Information solely to exercise its rights and perform its obligations under this Agreement and shall disclose such Confidential Information solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information for purposes consistent with this Agreement and who are bound by confidentiality terms at least as restrictive as those contained herein.

5.3 Protection. Each party agrees to protect the Confidential Information of the other party from unauthorized use, access or disclosure in the same manner that it protects its own confidential and proprietary information of like kind (but in no event using less than reasonable care).

5.4 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 the Disclosing Party’s expense, if the Disclosing Party wishes to contest the disclosure.

5.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections contained in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive or other equitable relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.

6. WARRANTIES AND DISCLAIMERS.

6.1 General Warranties. Each party represents and warrants to the other that (i) it has the legal power to enter into this Agreement; (ii) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (iii) the execution, delivery and performance of the Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

6.2 Service Warranties. Scope AR represents and warrants that during the applicable Subscription Term, (i) the Service will perform materially in conformance with its authorized purpose; and (ii) the Service will not contain or transmit to You any known Malicious Code (except for any Malicious Code contained in materials uploaded by You or any User or otherwise originating from You or a User). Any claim for any alleged breach of this Section 6.2 must be made within sixty (60) days of the date of such alleged breach, and Scope AR’s liability shall be limited to direct damages, if any, incurred by You within the sixty (60) days following the occurrence of such breach and which are a result of such breach. The warranties set forth in this Section 6.2 do not apply to any misuse or unauthorized modification or use of the Service made by You, Users, or any third party.

6.3 Your Warranties. You represent and warrant that (i) You shall provide proper notices to, and obtain necessary consents from, Users, employees, contractors, customers, agents, and others to whom You provide access to the Service about how their personal information may be used, processed, stored by, and disclosed to, Scope AR and its service providers in connection with this Agreement; (ii) Your Data will not contain or transmit to Scope AR (a) any Malicious Code; or (b) any personal information that You do not have consent to disclose; and (iii) Your Data does not infringe or misappropriate any third party rights.

6.4 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) THE SERVICES, PROFESSIONAL SERVICES, AND DELIVERABLES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND; (II) SCOPE AR DOES NOT WARRANT THAT THE SERVICES, PROFESSIONAL SERVICES, OR DELIVERABLES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS CODE; AND (III) SCOPE AR DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. SCOPE AR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM LIMITATIONS, DELAYS AND OTHER PROBLEMS DUE TO THE USE OF THIRD PARTY SERVICES OR THAT ARE INHERENT IN THE USE OF COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET.

7. INDEMNIFICATION.

7.1 Indemnification by Scope AR. Scope AR will, at its own expense, defend You and Your officers, directors, employees, consultants and agents (collectively, the “Customer Indemnitees”) in any action, suit or proceeding brought by a third party against any of the Customer Indemnitees alleging that the Customer Indemnitees’ use of the subscribed Service as authorized hereunder (excluding Your Data and any Third Party Services) infringes or misappropriates any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party (an “IP Claim”) and will indemnify and hold the Customer Indemnitees harmless from and against any settlement amounts agreed to by Scope AR in writing and any losses, damages, expenses, or costs (including but not limited to reasonable attorneys’ fees) (collectively, “Losses”) finally awarded to such third party against any of the Customer Indemnitees by a court of competent jurisdiction in any IP Claim, provided that You: (i) furnish Scope AR with prompt written notice of any IP Claims and copies of relevant documentation regarding any IP Claims for which indemnification may be sought; (ii) provide Scope AR sole control of the defense and settlement of such IP Claims (however, Scope AR shall not settle or compromise any IP Claim that results in liability or admission of any liability by You without Your prior written consent); (iii) reasonably cooperate with Scope AR, at Scope AR’s expense, in the defense or settlement of such IP Claims; and (iv) not settle any IP Claims or admit liability in respect to any IP Claims.

7.2 Mitigation. If an IP Claim has occurred, or in Scope AR’s opinion is likely to occur, Scope AR may, at Scope AR’s option and expense (i) procure for You the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify the Service(s) to make them non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Scope AR, discontinue Your use of the applicable portion of the Service, and Scope AR may in its sole discretion terminate Your subscription to the applicable portion of the Service or terminate this Agreement upon written notice to You and pay You a pro-rata refund of Fees paid in advance, if any, in respect to the unused portion of Your Subscription Term for such Service(s), as applicable. The provisions of Sections 7.1 and 7.2 state the sole, exclusive and entire liability of Scope AR, and Your and Customer Indemnitees’ sole remedy, with respect to an IP Claim brought by reason of access to or use of a Service by You or Users.

7.3 Exclusions. Scope AR shall have no obligations or liabilities to any of the Customer Indemnitees for any IP Claim that arises from or relates to (i) any unauthorized use of the Service; (ii) Scope AR’s compliance with designs, data, instructions or specifications provided by a Customer Indemnitee or a party other than Scope AR; (iii) any combination, operation or use of the Service (a “Combination”) with any technology, service, data, software, hardware or materials provided by anyone other than Scope AR, including Your products and services, provided that such IP Claim would not have arisen but for such Combination; (iv) any period of access or use while the Service was suspended in accordance with this Agreement; or (v) any modification of the Service by anyone other than Scope AR.

7.4 Indemnification by You. You shall, at Your own expense, defend Scope AR, its Affiliates and its and their respective officers, directors, employees, consultants and agents (collectively, the “Scope AR Indemnitees”) in any action, suit or proceeding brought by a third party against any of the Scope AR Indemnitees arising from or relating to (i) Your provision of the Service, Professional Services or Deliverables to Users or any use of the Service, Professional Services or Deliverables except to the extent You are entitled to indemnity as expressly set forth in Section 7.1 above; (ii) the use of or reliance by You, Users, or any third party on any information or materials created or otherwise made available via the App, Service, Professional Services or Deliverables; (iii) any Customer Indemnitee’s use of a Service, Professional Services or Deliverables in breach of this Agreement (and not arising solely from the Service, Professional Services or Deliverables themselves); or (iv) Your Data (collectively, “Customer-related Claim”), and shall indemnify and hold the Scope AR Indemnitees harmless from and against any settlement amounts agreed to by You in writing and any Losses awarded to such third party against any of the Scope AR Indemnitees by a court of competent jurisdiction in any Customer-related Claim, provided that Scope AR: (a) furnishes You with prompt written notice of any Customer-related Claim and copies of relevant documentation regarding any Customer-related Claim for which indemnification may be sought; (b) provides You sole control of the defense and settlement of such Customer-related Claim (however, You shall not settle or compromise any Customer-related Claim that results in liability or admission of any liability by Scope AR without Scope AR’s prior written consent); (c) reasonably cooperates with You, at Your expense, in the defense or settlement of such Customer-related Claim; and (d) does not settle any Customer-related Claims or admit liability in respect to any Customer-related Claims.

8. LIMITATION OF LIABILITY.

8.1 Limitation of Liability. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, ANY BREACH BY A PARTY OF ITS CONFIDENTIALITY OR PAYMENT OBLIGATIONS HEREUNDER, OR ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING THOSE OF ITS LICENSORS AND/OR SUPPLIERS), IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF EITHER PARTY FOR ANY AND ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT PAYABLE BY YOU TO SCOPE AR UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND IN THE ABSENCE OF SUCH LIMITATIONS, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD HAVE BEEN SUBSTANTIALLY DIFFERENT. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE LIMITATIONS IN THIS SECTION 8.1 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

8.2 Disclaimer of Damages. EACH PARTY AND ITS RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS, AND LICENSORS SHALL NOT BE LIABLE TO THE OTHER PARTY OR ANY OTHER ENTITY OR PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, PROFESSIONAL SERVICES, OR DELIVERABLES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, LOST SAVINGS, LOST OPPORTUNITY COSTS, BUSINESS INTERRUPTION, LOST TIME OR GOODWILL, OR COSTS OF COVER OR REPLACEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. THE LIMITATIONS IN THIS SECTION 8.2 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9. LIMITED TRIAL.

9.1 Scope of Limited Trial. If Scope AR makes any of the Services available to You or Users as part of a limited trial, those products and services will be considered “Services” under this Agreement, including this Section 9, even if the products and services are not specified in an Order Form, notwithstanding the “Services” definition in Section 1 (Definitions). Any such limited trial will end at the earlier of (i) the expiration of the trial period; (ii) the start date of any subscriptions purchased by You for such Service(s); or (iii) termination of the limited trial by Scope AR in its sole discretion. Additional trial terms and conditions (collectively, the “Trial Terms”) may appear on the trial registration web page. Any such Trial Terms are incorporated into this Agreement by reference and apply solely with respect to the limited trial and Services provided in connection therewith. In the event of any inconsistency or conflict between the terms of this Agreement and the Trial Terms, the Trial Terms shall control but solely with respect to the limited trial and Services provided in connection therewith.

9.2 Limited Trial Data and Customizations. Any data You or Users enter into the Services and any customizations made to the Services by You, Users, or on Your or their behalf during a limited trial will be permanently lost unless You purchase a subscription to the same Services as those covered by the trial, or export such data, before the end of the trial period.

9.3 Disclaimer. In any limited trial, Scope AR provides the Services “AS IS,” without any warranty, covenant, commitment or liability whatsoever to the maximum extent permitted by law and notwithstanding anything to the contrary contained in this Agreement.

9.4 Features and Functions. You agree to review the applicable Service Documentation during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.

10. TERM AND TERMINATION.

10.1 Term of Agreement. This Agreement commences on the Effective Date and, unless earlier terminated in accordance with the terms hereof, continues until all subscriptions hereunder have expired or have been terminated (the “Term”).

10.2 Term of Subscriptions. Each Subscription Term for a particular Service shall be as specified in the applicable Order Form. Unless a subscription is earlier terminated in accordance with this Agreement or the applicable Order Form, or unless otherwise expressly set forth in the applicable Order Form, Your subscription to a Service will automatically renew for an additional period equivalent in length to the then-expiring Subscription Term or one (1) year (whichever is shorter), unless either party provides written notice of non-renewal to the other party at least thirty (30) days prior to expiration of the then-current Subscription Term. The per-unit pricing for any renewal Subscription Term may increase by up to 7% above the applicable pricing in the prior Subscription Term, unless Scope AR provides You notice of different pricing at least sixty (60) days prior to the expiration of the previous Subscription Term. Except as expressly provided in the applicable Order Form, the renewal of promotional or one-time priced subscriptions will be at Scope AR’s applicable list price then in effect at the start of the renewal Subscription Term. Notwithstanding anything to the contrary contained herein, any renewal Subscription Term in which subscription volume for any Service has decreased from the prior Subscription Term will result in re-pricing at renewal without regard to the prior Subscription Term’s per-unit pricing.

10.3 Termination for Cause. A party may terminate this Agreement for cause: (i) upon written notice to the other party of a material breach by the other party if such breach remains uncured after thirty (30) days from the date of receipt of such notice; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Scope AR may immediately terminate this Agreement for cause without notice if Scope AR’s provision of the Service violates applicable law, regulation or court order.

10.4 Outstanding Fees. Termination or expiration of this Agreement, any Order Forms or SOWs shall not relieve You of the obligation to pay all Fees accrued or payable to Scope AR prior to the effective date of such termination or expiration. Upon any termination of this Agreement by You for cause, Scope AR shall refund You any prepaid Fees covering (a) the remainder of the terminated Subscription Term(s); and (b) any Professional Services and Deliverables under any SOWs not provided by Scope AR due to such termination. Upon any termination of this Agreement, Order Form(s) and/or SOWs by Scope AR for cause, in addition to all other amounts You owe Scope AR, You must pay all unpaid Fees covering (y) the remainder of the terminated Subscription Term(s); and (z) all Professional Services and Deliverables under all terminated SOWs. For clarity, termination of this Agreement also results in the termination of all Order Forms and SOWs.

10.5 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 1, 2.9, 3, 4, 5, 6.4, 7, 8, 9.3, 10, and 11. Any provisions in any Order Forms or SOWs that pertain to the ownership of Intellectual Property Rights shall survive any expiration or termination of this Agreement, the Order Forms, and SOWs. Termination of this Agreement, an Order Form or SOW shall not limit a party’s liability for obligations accrued as of or prior to termination or for any breach thereof.

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 Publicity. You grant Scope AR the right to use Your company name and logo in marketing and promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to compliance with Your standard trademark usage guidelines as provided to Scope AR from time-to-time. Neither party may issue press releases relating to this Agreement without the other party’s prior written consent.

11.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

11.4 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing if sent for next day delivery by recognized overnight delivery service; (iii) upon receipt, if sent by certified or registered mail, return receipt requested; or (iv) the second business day after sending by confirmed email. Notices to You shall be sent to the applicable address set forth in the most recent Order Form. Notices to Scope AR shall be sent to Scope Technologies US Inc., 575 Market Street, 4th Floor, San Francisco, CA 94105 USA, attention Finance Department, or to accounting@scopear.com. Either party may update its address for notice by providing notice of such change pursuant to this section.

11.5 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.

11.6 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 effect.

11.7 Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety (including all Order Forms) with written notice to the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets. 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.

11.8 Governing Law. This Agreement shall be governed by the laws of the State of California, USA, exclusive of conflict or choice of law rules. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. Non-English translations of this Agreement are provided for convenience only. In the event of any ambiguity or conflict between translations, the English version shall control.

11.9 Venue; Waiver of Jury Trial. The state and federal courts located in San Francisco, California, USA, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

11.10 Equitable Relief. You acknowledge and agree that an actual or threatened breach of Your or any User’s obligations related to Scope AR’s Intellectual Property Rights may result in immediate, irreparable, and continuing damage for which there may be no adequate remedy at law. As such, Scope AR may apply to any court of competent jurisdiction for equitable relief (including, without limitation, specific performance or injunctive relief) without the need for posting of any bond or any other surety or security.

11.11 Force Majeure. Neither party shall be responsible for any delays or failures in performance of its obligations under this Agreement (except for payment of amounts due) to the extent due to a Force Majeure Event. A “Force Majeure Event” means an unforeseen circumstance or cause beyond a party’s reasonable control, including but not limited to act of God, war, terrorism, riot, embargo, act of civil or military authorities, act of government, pandemic, epidemic, fire, flood, earthquake, or strike or other labor problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, or denial of service attacks, provided that such party gives the other party prompt written notice of the delays or failures in performance and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.

11.12 Export. You acknowledge and agree that the Services and Deliverables may be subject to export and import controls under the regulations of the United States, Canada, and other countries, and You shall comply with all export and import control regulations of such countries. You shall not use the Services for any purpose prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. You shall be responsible for procuring all required permissions for any subsequent export, import or use of the Services and Deliverables.

11.13 Federal Government. If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, each of the Services is a “Commercial Product” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to You with only those rights as provided under the terms and conditions of this Agreement.

11.14 Entire Agreement; Modifications. This Agreement, including all schedules, exhibits and addenda hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Scope AR may modify this Agreement from time to time, in which event the new Agreement will supersede prior versions. If we make any material modifications to this Agreement, we shall inform You by posting the modified terms at https://www.scopear.com/legal-msa. It is Your responsibility to check periodically for modifications to this Agreement. The modified Agreement will be effective upon Your next subscription renewal following posting of the updated terms. Your continued access or use of the Service after such renewal confirms Your consent to be bound by this Agreement, as amended. If You do not agree to be bound by the modified terms, then You may not continue to use the Service. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any schedule, exhibit or addendum hereto or any Order Form, the terms of such schedule, exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no pre-printed terms or conditions contained in Your purchase order or in any request for proposal, request for information, or other documentation provided by You shall be incorporated into or form any part of this Agreement, and all such terms or conditions are null and void. Scope AR’s failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement. The headings used herein are for convenience only and shall not affect the interpretation of the terms of this Agreement.

Revision Date
Last revised December 22, 2023.
© Scope AR. All Rights Reserved.

SCHEDULE 1

Professional Services Terms

The following terms and conditions are incorporated into the Agreement. Capitalized terms not defined in this Schedule shall have the meaning ascribed to such terms in the Agreement.

Scope AR is willing to provide Professional Services on a time and materials or fixed price basis according to the terms and conditions set forth in this Schedule and the applicable SOW. Such Professional Services may include, without limitation, instruction and training on the use of the Service; evaluation, design and implementation of system architectures; custom development; and Service deployment consultations.

1. Statement of Work. All Professional Services to be performed and Deliverables to be developed by Scope AR at Your request shall be described in an SOW as mutually agreed upon by the parties in writing. Upon agreement by authorized representatives of each party, each SOW shall become a part of the Agreement, and shall be governed by the terms and conditions of the Agreement and this Schedule. In the event of a conflict between an SOW and this Schedule or the Agreement, this Schedule or the Agreement, as the case may be, shall prevail except to the extent that such conflict relates to the specific Professional Services or Deliverables to be provided, the cost thereof, or to any unique terms with respect thereto, in which event the SOW shall prevail solely with respect to such Professional Services and Deliverables. After authorization of an SOW, the Professional Services and Deliverables to be provided under that SOW may only be changed through a change order or amendment authorized by both parties.
2. Scope AR’s Obligations.Scope AR shall perform Professional Services and develop Deliverables as described in the applicable SOW. Scope AR shall perform such Professional Services and develop Deliverables in a reasonable and workmanlike manner consistent with industry standards and practices. Your sole and exclusive remedy for any breach by Scope AR of its obligations in this Schedule and an SOW will be, at Scope AR’s option, re-performance of the Professional Services or development of the Deliverables, as applicable, or termination of the applicable SOW and return of the portion of the Fees You paid to Scope AR for the nonconforming portion of the Professional Services or Deliverables, as applicable. Scope AR shall be entitled, in its sole discretion, to determine the method and means for performing the Professional Services and developing Deliverables. You acknowledge and agree that Scope AR may retain the services of independent consultants (“Subcontractors”) from time to time to perform or to assist Scope AR in performing Professional Services and developing Deliverables under an SOW. Scope AR personnel and Subcontractors shall remain under the direction and control of Scope AR.
3. Your Obligations.You shall provide timely performance of Your obligations under this Schedule and all SOWs as required for Scope AR to perform its obligations under this Schedule and the SOWs. In support of such obligations, You shall provide sufficiently qualified personnel who are capable of completing Your duties and tasks pursuant to this Schedule and the SOWs. You acknowledge and agree that any delay on Your part in the performance of Your obligations will have an effect on and may delay Scope AR’s performance of the Professional Services and development of the Deliverables. Scope AR will not be liable for any deficiency or delay in the performance of Professional Services or development of Deliverables to the extent such deficiency or delay results from any of Your acts or omissions, including, but not limited to, Your failure to timely perform Your obligations as required hereunder.

Scope AR may provide Professional Services or may develop Deliverables at Your facilities or at Scope AR’s facilities as set forth in the applicable SOW. If Professional Services are to be provided or Deliverables are to be developed at Your facilities, You shall provide Scope AR with access to Your facilities during normal business hours and at such other times as may be reasonably requested by Scope AR to facilitate the timely performance of the Professional Services and development of the Deliverables. You shall also provide Scope AR personnel with working space and office support (such as telephone access, network connectivity and photocopying) while such personnel are performing Professional Services or developing Deliverables at Your facilities. While at Your facilities, Scope AR shall comply with Your reasonable facility policies, procedures and rules that have been communicated to Scope AR in writing in advance.

You shall designate a project management contact for the purposes of communication with Scope AR. The project management contact shall be the primary point of contact for You with Scope AR for matters relating to the provision of Professional Services and development of Deliverables.

4. Price and Payment.You shall pay Scope AR Fees on a time and materials basis at Scope AR’s then-current price or on a fixed price per project basis, as more specifically set forth in the applicable SOW. You shall reimburse Scope AR for all reasonable out of pocket expenses (including travel, lodging and related expenses) incurred by Scope AR in the performance of any Professional Services or development of any Deliverables, provided that such expenses are approved in advance in writing by You. The Fees for Professional Services and Deliverables shall exclude all applicable Taxes.

Unless otherwise specified in the SOW, Scope AR shall invoice You the Fees for Professional Services and Deliverables pursuant to this Agreement or an SOW on a monthly basis. All such Fees are due thirty (30) days from the invoice date.

This Section 4 will survive any termination or expiration of the Agreement, this Schedule, and the SOWs.

5. Term and Termination.Each SOW shall commence upon authorization by both parties and, unless earlier terminated in accordance with the terms of the Agreement, this Schedule or the applicable SOW, shall remain in effect until all Professional Services and Deliverables have been furnished thereunder. A party may terminate an SOW for cause in accordance with the terms of the Agreement. The non-defaulting party’s right to terminate shall be in addition to any other rights that it may have in law or in equity.
6. Intellectual Property Rights.Scope AR shall own all right, title and interest and all Intellectual Property Rights in and to the Deliverables, Scope AR proprietary information, and Software, including all derivatives, enhancements and modifications to any of the foregoing, and You hereby make all assignments necessary to accomplish the foregoing ownership. Subject to Your payment of all Fees due under the applicable SOW, Scope AR grants You a non-exclusive, non-transferable (except as provided in Section 11.7 of the Agreement), non-sublicensable license during the Term to use the Deliverables solely in connection with Your permitted use of the Service as set forth in Section 2 of the Agreement. This Section 6 will survive any termination or expiration of the Agreement, this Schedule, and the SOWs.
7. Non-Solicitation. With respect to employees of Scope AR who have been involved with, directly or indirectly, any of the Services, Professional Services or development of Deliverables hereunder, You shall not, during the Term and for a period of twelve (12) months thereafter, (i) directly or indirectly solicit, encourage, or induce such Scope AR employee to terminate its relationship with Scope AR, or (ii) retain such Scope AR employee for the purpose of providing the same or similar services to You. You shall be permitted to make generalized employment searches by advertisements or by engaging firms to conduct searches which do not target the employees of Scope AR. The terms in this Section 7 apply only to the maximum extent permitted by applicable law. This Section 7 will survive any termination or expiration of the Agreement, this Schedule, and the SOWs.