Terms and Conditions of Statement of Work and License Agreement

 

These Terms and Conditions of Statement of Work and License Agreement are entered into as of the date of the last party to sign the accompanying Statement of Work (“Effective Date”) between Smiota, Inc. (“Smiota”) and the customer identified on the accompanying Statement of Work(s) (“Customer”) and are hereby incorporated into and made a part of the accompanying Statement of
Work(s). Capitalized terms defined in the Statement of Work(s) will have the meanings ascribed therein. The Statement(s), Terms and Conditions of Statement of Work and License Agreement, and any accompanying exhibits or addenda are collectively referred to as the “Agreement” and govern
Smiota’s sale of the Equipment identified on such Statement of Work(s) to Customer and Customer and its Authorized Tenants access to and use of the System. Capitalized terms not defined herein shall have the meaning given to them in the Statement of Work.

1. Equipment Delivery,

Installation, and

Acceptance.

a. Delivery & Installation.

The Parties will select a mutually agreeable date (“Delivery Date”) and
time for delivery of the Equipment. The method of delivery will be at Smiota’s discretion provided such method is commercially reasonable, unless otherwise agreed. Smiota will ensure that the Equipment is delivered on the Delivery Date at the mutually agreed on time. Smiota and Customer will select a mutually agreeable specific date for the installation of the System (“Installation Date”), which Smiota will confirm and document via email with Customer. The installation fee covers one mutually agreed on installation day or days (if the installation requires more than one day of work). If the installation team must come back to the site later due to the fact the site wasn’t ready for the
installation and did not meet the pre-installation site requirements shared by Smiota (i.e. no power, no Internet connectivity etc.), the additional charges of $250 per visit will apply and have to be covered by Customer. Once the locker delivery or installation is scheduled, Smiota requires 48h notice if any changes to the timeline must be made. If the delivery or installation is canceled or
postponed less than 48h prior to the scheduled installation start, additional charges may apply. Similarly, if the installation cannot be completed due to the installation site not being ready (for
example no power or internet available) and it is required for the installers to come back to the site to complete the installation at a later date, additional charge will apply to cover cancelation fee.

b. Configuration Changes.

Smiota reserves the right to (i) reschedule shipment in cases of
configuration changes requested by Customer within eight (8) to ten (10) weeks of scheduled shipment and (ii) change the locker configuration should the Customer approved floor plan does
not reflect the actual locker room dimensions. Customer is advised that any additional locker(s) added after the initial order may not match original locker order due to powder coat paint
variations. The Parties will mutually agree as to a floor plan layout detailing (i) the position of the Equipment on Customer’s premises (the “Locker Area”), (ii) the location of all necessary power and wired internet connections to be provided by customer, and (iii) all other utilities or infrastructure to be provided by Customer necessary for the operation of the System ((ii) and (iii) are collectively, “Customer Provided Utilities”). For the avoidance of doubt, Smiota will ensure that the floor plan reflects all electricity, Internet, and other utility or like connections necessary for the System to
function. Without limiting the foregoing, Smiota shall be responsible for ensuring the floor plan layout and the Equipment (including the Equipment as installed) complies with all relevant local,
state and federal laws, including without limitation those related to disability rights.

c. Inspection and Acceptance.

Smiota will install the System on the Installation Date. Smiota will
give Customer written notice when installation of the Equipment is complete. Customer shall have
ten(10) business days from receipt of such notice to inspect and test the Equipment. Smiota will, at
its sole cost and expense, cooperate with Customer to facilitate Customer’s testing of the Equipment. If Customer accepts the Equipment as delivered and installed, Customer will, return an executed Smiota’s Acceptance of Installation. Notwithstanding the foregoing, the Equipment will be deemed accepted if Customer does not provide written notice of rejection within ten (10) business days of installation (in either case, the “Acceptance Date”).

2. System.

Smiota will make the System available for use by Customer and its Authorized Tenants within one business day of the Installation Date until the end of the Term. “System” means the means the package management solution comprised of the Software and Equipment facilitating the secure delivery and retrieval of packages described at https://www.smiota.com/smiota
pod.html. Smiota will use reasonable commercial efforts to ensure System Availability (defined below) of at least 99.9% (“System Availability Commitment”).

3. Service Credits.

a. System Outage Credit.

i. Certain Definitions.

1. “Available” means that Customer and its Authorized Tenants can access and use the features and functionalities of the System described on Smiota’s website, https://www.smiota.com/smiota
pod.html, as of the Effective Date.

2. “System Availability” means, as to a calendar month, the percentage of total time during which
the System is Available, excluding time where the System is not Available because of Scheduled Maintenance,        a force majeure event, a failure of Customer Provided Utilities unless caused by Smiota, or a Material Alteration made without Smiota’s prior written consent.

3. “Scheduled Maintenance” means any planned period during which the System will not be Available for which Customer has received at least 3 days advance notification of such occurrence.
Smiota will be limited to one instance of Scheduled Maintenance per month not to exceed 6 hours in duration and one additional instance per year not to exceed 8 hours in duration, unless more
frequent or longer outages are requested or approved by Customer in writing (email is acceptable). Any additional downtime in excess of the limit set forth in the preceding sentence shall be counted
as time that the System is not Available.

ii. As to each calendar month of the Term, if the System does not meet the System Availability
Commitment, as set forth in Section 2, for such month, Smiota will provide Customer a refund in
accordance with the table below:

b. Equipment Out of Service Credit.

If more than ten percent (10%) of the Equipment is out of
service for an aggregate (i.e., not continuous) period of thirty (30) days during the Initial Support
Term or a Renewal Term, as applicable, due to issues not excluded from the Maintenance Services as set forth in Section 4(d) of the Purchase Order, then Smiota will promptly refund will refund the entire 1 Year Support and Maintenance Fee or Renewal Fee paid in connection with the Initial Support Term or such Renewal Term, whichever is applicable. For example, if seven (7) lockers are not in good working condition due to issues covered by Maintenance Services for fifteen (15) days in the first month of a Renewal Term, and (7) lockers are not in good working condition due to issues covered by Maintenance Services for fifteen (15) days in the seventh month of such Renewal Term, Smiota will refund the Renewal Fee paid for such Renewal Term. Equipment will be deemed to be out of service from the date Smiota becomes aware that a. such Equipment is not in good working
condition (e.g., when Customer requests maintenance services as to such Equipment, or when Smiota’s otherwise learns that that Equipment is not in good working order) until the date that such
Equipment is restored to good working condition.

4. License to Enter Customer’s Properties.

Customer grants to Smiota and Smiota Contractor/Agents a license during the Term to enter onto the property identified in the Purchase Order (“Property”) at times mutually agreed by the parties so that Smiota can fulfill its rights and obligations hereunder and for no other purpose.

5. Exclusive Nature.

Smiota will be the exclusive provider of Maintenance Services to the Equipment for the Term.

6. Locker Area Improvements;

Utilities; Maintenance.

(a) Improvements.

Smiota will complete the initial Equipment set-up and installation in accordance with the timescales set forth in Section 1(a), and will provide administrative access and training on use of the System at  no cost to Customer and at times mutually agreed by the parties. Smiota will provide a barrel key for manual access to the lockers for the management staff. Should the barrel key be lost, a $50 fee will be charged to replace the key. Customer will be responsible for any construction related expenses to prepare Locker Area, and shall ensure that the Locker Area complies with all applicable federal,
state, municipal laws and other laws, ordinances and regulations.

a. Locker Area; Utilities.

Customer will be responsible for providing: 1 – 110V Separate Circuit
Electrical Outlet (i.e., 1 total for all the Equipment) and wired internet access Smiota will provide Ethernet cables in advance as needed. If the dedicated space is not ready and or the electrical
outlet and internet access are not functioning on the Installation Date the Customer will be responsible for the cost of any additional labor and expenses incurred as a result, provided that
Smiota will use reasonable commercial efforts to minimize such additional labor and/or expenses.

b. Maintenance of Locker Area.

Customer shall be responsible for the cost of electricity and utility
services necessary for the proper operation and maintenance of the Equipment. Customer shall
perform all necessary janitorial and maintenance services for the Locker Area to keep it in good condition and repair. Customer shall at its own expense, provide and maintain the required
electrical outlet and internet access to properly operate the Equipment. Customer will be responsible for the cost of all labor and expenses to any related repair service calls in the event that
the required electrical outlet and hard-wired internet access are not properly functioning at any time during the Term except to the extent that such issue is caused by Smiota.

7. Customer Responsibilities.

Smiota’s provision of Maintenance Services to Customer shall be
expressly conditioned upon Customer’s fulfillment of the following Customer responsibilities:

a. Customer will provide access to the Equipment at times mutually agreed by the Parties to enable Smiota to perform the Maintenance Services.

b. Customer will use commercially reasonable efforts to provide Smiota’s personnel or representatives are provided a safe and secure work environment while they are on Customer’s premises at the times mutually agreed.

c. Customer will cooperate in good faith with Smiota in connection with Smiota’s provision of the Maintenance Services.

d. During the Term, the Customer shall not carry out or attempt to carry out modifications to, repair of, experiments on, or maintenance of the Equipment, and Customer use reasonable
commercial efforts to prevent any other person except Smiota’s personnel or representatives to
carry out such work unless prior written approval has first been obtained from Smiota.

8. Term and Termination.

a. Term.

The “Term” of this Agreement shall mean the Initial Term and Renewal Term(s) collectively
(each as defined in the Purchase Order).

b. Termination for Breach.

Either Party may terminate this Agreement in the event of a material
breach by the other Party, which remains uncured within thirty (30) days after written notice thereof from the non- breaching Party.

c. Bankruptcy.

Smiota will provide Customer with at least five (5) business days’ notice prior to filing a petition seeking to take advantage of any law relating to the bankruptcy or insolvency of Smiota
and will immediately provide notice to Customer if Smiota is adjudicated to be bankrupt, is the subject of a petition seeking the liquidation, reorganization, winding-up, dissolution or adjustment
of indebtedness of Smiota, if Smiota becomes insolvent or makes a general assignment for the benefit of creditors or if a receiver is appointed for Smiota.

d. Non-Payments.

Should Smiota fail to receive Customer’s remaining fifty percent (50%) payment
of the Fees due within forty-five (45) days of the Delivery Date, Smiota reserves the right to terminate the Agreement and to repossess the lockers with a shipping and uninstallation fee of
$1800 per bank and 25% of the total solution cost as restocking fee (collectively, the “Repossession
& Restocking Fees”). In such case, Smiota will refund to Customer the amounts paid for the lockers  less such Repossession & Restocking Fees.

9. Effect of Termination.

Upon termination of this Agreement:

a. Smiota shall cease to provide Customer access to the Software, and if the termination is not due to Smiota’s breach, bankruptcy or dissolution per Sections 8(b) and 8(c) above, Customer will pay
to Smiota all unpaid undisputed Fees as of the effective date of such expiration or termination.

b. Expiration or Termination of this Agreement for any reason will not release either Party from any
liabilities or obligations set forth herein which (i) the Parties have expressly agreed in writing will survive such expiration or termination or (ii) remain to be performed or by their nature would be
intended to be applicable following any such expiration or termination.

10. Payment.

a. Fees.

The Fees are firm and not subject to change (including any increase as to any Renewal Term) by either party without the other party’s prior written approval. Fees related to additional services provided by Smiota shall be specified in the Addenda and the Purchase Order, as applicable

b. Disputed Charges.

Customer shall notify Smiota of any disputed charges in writing no later than
twenty (20) days after the date of the applicable invoice. Smiota and Customer shall attempt in good faith to resolve any disputed amounts. Customer shall have no obligation to pay any disputed
amount until such dispute is resolved. 

11. Indemnification.

Each Party (for purposes of this Section “Indemnitor”) shall defend, indemnify
and hold harmless the other Party and each of its officers, directors, employees and authorized agents (for purposes of this Section, “Indemnified Party”) against and from all losses, liabilities,
damages, expenses and costs (including reasonable attorneys’ fees and court costs, and also including any governmental fines) (“Damages”) incurred by the Indemnified Party in connection
with any and all third party claims, actions, demands, suits, or proceedings, (“Claim”) arising out of or related to Indemnitor’s gross negligence, willful misconduct, or unauthorized use of a third party’s trade secrets or other intellectual property. In addition, Smiota will defend, indemnify and hold harmless Customer and each of its officers, directors, employees and authorized agents from and against all Damages incurred by such individuals or entities in connection with any third-party
Claims under, arising out of, or related to (i) an allegation that the System (or any individual part thereof), Software, or Maintenance Services infringe on, misappropriate, or otherwise violate any
rights of any third-party and (ii) Smiota’s violation of applicable law (including, for the avoidance of doubt, laws applicable to Smiota’s provision of the System) or breach of this Agreement. Customer
shall additionally defend, indemnify and hold harmless Smiota Indemnified Parties against and from any Claims of injury to Smiota’s personnel performing obligations hereunder on Customer
premises to the extent such injury was caused by Customer’s gross negligence or willful misconduct.

In the event of a Claim under this Section 11, the Indemnified Party shall (a) promptly give the other party written notice of the claim, provided that the failure to do so will (i) be not be
deemed a breach of this Agreement and (ii) will not relieve the Indemnitor of its obligations under this section expect to the extent that such delay prejudices the Indemnitors defense of such Claim;
(b) give the Indemnitor sole control of the defense and settlement of the Claim, provided that the Indemnitor will not, without the Indemnified Party’s prior written approval, enter into any settlement agreement that admits fault on the part of the Indemnified Party or requires the Indemnified Party to
make any payment); and (c) provide to Indemnitor all assistance, reasonably requested by the Indemnitor, at the Indemnitor’s sole cost and expense. In addition, at the Indemnified Party’s
option, cost, and expense, the Indemnified Party shall have the right to participate in the defense of any Claim with counsel selected by the Indemnified Party. 

12. Warranties; Disclaimer.

a. Smiota warrants:

(i) each unit of Equipment to be new and to be free from defects in material and
workmanship under normal use and operating conditions for one-hundred and eighty (180) days after the applicable Installation Date (“Equipment Warranty”);

(ii) the installation of the Equipment,
the Maintenance Services, and the Support Services will be performed in a professional and workmanlike manner (“Services Warranty”);

(iii) the System will at all times throughout the Term conform with the documentation (“System Warranty”). Smiota shall, as a remedy for a breach:(x)
of the Equipment Warranty, at its discretion, promptly repair such Equipment so that it conforms
with such warranty or replace such Equipment with Equipment that conforms with such warranty;
(y) of the Services Warranty, will promptly, but in no event in more than five (5) days from the date Smiota became aware of such breach, re-perform the applicable service until it conforms with
such warranty; and (z) of the System Warranty, will promptly modify or repair the System so that it conforms with such warranty. Without limiting the foregoing: if Smiota fails to remedy:

i. a breach of the Equipment Warranty within fifteen (15) days of the date Smiota became aware of such breach (e.g., the date that Smiota was notified of such breach by Customer), Customer will have the right to terminate this Agreement, and Smiota will promptly refund to Customer all amounts paid under this Agreement.

ii. a breach of the Services Warranty within ten (10) days of the date Smiota became aware of such breach Customer will have the right to have Smiota again re-perform the applicable services. If, after such re-performance, such Services still fail to comply with the Services
Warranty, Smiota will promptly refund to Customer ten percent (10%) of the 1 Year Support and Maintenance Fee or Renewal Fee for such Initial Services Term or Renewal Term, as applicable.

iii. a breach of the System Warranty:

1. occurring during the Initial Services Term within thirty (30) days of the date that Smiota became aware of such breach, Customer will have the right to terminate this Agreement, and Smiota will promptly refund to Customer all amounts paid under this Agreement.

2. occurring during any Renewal Term within thirty (30) days of the date that Smiota became aware of such breach, Customer will have the right to terminate this Agreement, and Smiota will promptly refund to Customer the Renewal Fee for such Renewal Term.

 b. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE PURCHASE ORDER OR IN THE
BODY OF THESE TERMS, SMIOTA DOES NOT REPRESENT THAT CUSTOMER’S OR ITS TENANTS’ USE
OF THE SYSTEM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE
SYSTEM WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SYSTEM,
SOFTWARE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM
THAT MAKES THE SYSTEM AVAILABLE (INCLUDING IF APPLICABLE, BUT NOT LIMITED TO, THE
INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND
EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES
SET FORTH ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY SMIOTA. THERE ARE
NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR
PURPOSE OR NON- INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS EXPRESSLY SET FORTH
ABOVE, THE SYSTEM IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS AND
IS FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING
WHETHER THE SYSTEM OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR
SUFFICIENT FOR CUSTOMER’S PURPOSES.

 

c.Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM
OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT
LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, AND INCLUDING FOR CLARITY ANY DAMAGES NOT CAUSED BY SMIOTA TO CUSTOMER
AND ITS TENANTS, INCLUSIVE OF, BUT NOT LIMITED TO, PROPERTY, PACKAGES AND THE
CONTENTS THEREOF. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER,
ARISING OUT OF, OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF (X) $100,000 AND
(Y) THE FEES PAID OR PAYABLE BY CUSTOMER HEREUNDER. THE FOREGOING EXCLUSION OF
CONSEQUENTIAL DAMAGES AND LIMITATION OF LIABILITY SHALL, HOWEVER, NOT BE
APPLICABLE TO SMIOTA’S INDEMNIFICATION OBLIGATIONS UNDER THISE AGREEMENT TO THE
EXTENT SUCH DAMAGES ARE AWARDED TO THIRD-PARTIES (E.G., IF A THIRD-PARTY RECOVERS
CONSEQUENTIAL DAMAGES IN AN ACTION AGAINST CUSTOMER FOR WHICH PROVIDER IS TO
PROVIDE INDEMNIFICATION, PROVIDER WILL BE REQUIRED TO PAY THAT ENTIRE JUDGMENT
INCLUDING THE CONSEQUENTIAL DAMAGES AWARD).

 

13. Confidentiality.

 

a. Confidential Information.

All business and financial matters, technical information and any other
proprietary information relating to a Party and their respective operations, businesses, technical
know-how and financial affairs, that is obtained by the other Party as a result of the working
relationship between the Parties, whether obtained prior to or after the date hereof (“Confidential
Information”) shall remain strictly confidential and shall not be used or discussed by the other in
any manner, except as required to complete delivery, installation and maintenance of the System,
or for use of the System. Confidential Information shall not include any information that:

(a) was previously known to the Parties free of any obligation to keep it confidential;

(b) is or has become publicly known, through no wrongful act of neither Party;

(c) was rightfully received from a third party who is under no obligation of confidence to the                                                                receiving Party;

(d) was independently developed by the Parties without use of Confidential Information that has been                                                disclosed pursuant to this Agreement; or

(e) was required to be disclosed in order to comply with applicable law or
regulation (including, without limitation, for securities law purposes) or any requirement imposed
by any governmental or court order, but only to the extent so required.

 

b. Equitable Relief.

Each Party agrees that its breach of any provision of this Section may result in
irreparable harm to the other Party which monetary damages may not provide a sufficient remedy.
Therefore, the non-breaching Party may seek both monetary damages and equitable relief with
respect to any such breach.

 

14. Use of Software and Service

and Restrictions.

 

Subject to the terms and conditions of the Agreement and during the Term,          Smiota shall make its proprietary software, including all software
and firmware necessary to operate the Equipment as part of the System, Smiota’s mobile application associated with the System, and (the “Software”) available to Customer and its
Authorized Tenants solely for Customer’s internal business use and for Authorized Tenants personal use in connection with the Smiota’s provision of the System. The original and any copies
of the Software, made by Smiota including translations, compilations, modifications, and updates,
are the property of Smiota. Customer’s use of the Software shall not include service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing
of the Software. Customer shall not, and shall not knowing permit Customer’s employees, contractors, or agents (which, for the avoidance of doubt, do not include Authorized Tenants) to:

a. Copy (except to the extent necessary to use the Software as part of the System), translate, create a derivative work of, reverse engineer reverse assemble, disassemble, or decompile the
Software or any part thereof or otherwise attempt to discover any source code or modify the Software in any manner or form unless expressly allowed in the documentation provided by Smiota;

b. Knowingly use unauthorized modified versions of the Software, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining
unauthorized access to the Software;

c. Knowingly use the Software in a manner that is contrary to applicable law or in violation of any third-party rights of privacy or intellectual property rights, provided that Customer will not be
deemed to be in breach of such obligation to the extent that Customer’s use in a manner that is
contrary to applicable law or in violation of any third-party rights of privacy or intellectual property rights is caused by Smiota’s actions or omissions;

d. Knowingly publish, post, upload or otherwise transmit to the Software Customer or tenant data
that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another. Any Customer requested enhancements to the Software are subject to additional charges as mutually agreed by the Parties.

15. Privacy and Security Measures.

a. Data Privacy.

With respect to each tenant Customer authorizes to use the System (“Authorized
Tenant”), Customer will provide Smiota with such tenant’s name, apartment unit number                                                                (“Enrollment Data”). Smiota will comply with all applicable law, including all laws related to privacy,
in connection with providing the System, including with respect to Enrollment Data and any other
information Smiota collects in connection with providing the System.

b. Data Security.

Smiota will (i) use commercially reasonable security tools and technologies in
connection with the System; (ii) use commercially reasonable software application protection
security technologies in the System; and (iii) promptly update and upgrade the tools and
technologies referred to in (i) and (ii) as updates and upgrades to such tools and technologies
become available, within no later than a commercially reasonable period of time from when the
applicable updates and upgrades become available. Without limiting the foregoing obligations of
Smiota, at a minimum, Smiota will use at least the same security tools and technologies in
connection with the System as it uses for its other customers. Smiota will also comply with all
applicable industry standards now in effect or subsequently adopted relating to security tools and
technologies for the types of equipment, services and software provided under this Agreement.
Without limiting the foregoing, Smiota will use commercially reasonable tools and services to
identify and protect against spam, harmful code, viruses, malware, phishing and other attacks
(including using use up-to-date anti-virus and anti-malware protections within its organization).

 

16. General Provisions

 

a. Assignment.

Neither Party may assign or transfer, in whole or in part, any of its rights or
obligations under this Agreement, without the prior written consent of the other Party. Any
purposed assignment in violation of this provision will be void.

b. Governing Law.

This Agreement shall be governed by the laws of the State of California.

c. Attorneys’ Fees and Collection Costs.

Force Majeure. Except for the obligation to pay monies due
and owing, neither Party shall be liable for any delay or failure in performance due to events outside
the defaulting Party’s reasonable control, including, without limitation, acts of God, earthquakes,
labor disputes, industry-wide shortages of supplies, actions of governmental entities, riots, war,
terrorism or threats of terrorism, fire, epidemics, or delays of common carriers or other
circumstances beyond its reasonable control. The obligations and rights of the defaulting Party
shall be extended for a period equal to the period during which such event prevented such Party’s
performance.

d. No Waiver.

Failure or delay by Customer to exercise any right, power or remedy provided
hereunder will not operate as a waiver or modification of any such right, power or remedy.

e. Notices.

All notices, consents, submissions for approvals, approvals, requests, demands and
other communications provided for in this Agreement shall be in writing and shall be deemed to
have been duly given and received if and when personally served or forty-eight (48) hours after
being deposited in the United States mail, registered, return receipt requested, postage prepaid,
addressed to the intended party at it address set forth in the Purchase Order to this Agreement.

f. References. 

Acceptance confers rights for Smiota to use client ‘s logo in media or other
materials. Smiota may request a reference, referral or approval of a case study from client.

g. Time of the Essence.

Time is of the essence with respect to performance by the Parties under
this Agreement.

h. Entire Agreement.

This Agreement and the attached annexes, addenda and exhibits shall
constitute the entire agreement between Customer and Smiota, and there are no prior or
contemporaneous oral or written understandings or agreements binding on Smiota affecting the
subject matter of this Agreement other than those expressly contained herein. This Agreement
expressly limits acceptance to the terms contained herein. This Agreement can be amended only
by a Change Order issued, or by a written instrument signed by both Parties. The terms set forth in
this Agreement shall prevail in the event of any inconsistencies with any proposal document,
purchase order or other document relating to the subject matter of this Agreement.

i. Counterparts and Digital Signatures.

If this Agreement is executed in counterparts, each is
hereby declared to be an original; all, however, shall constitute but one and the same Agreement.
The Parties agree to accept a digital image (including but not limited to an image in the form of a
PDF, JPEG, or GIF file) of this Agreement reflecting the execution of one or both Parties, as a true
and correct original.

j. “Smiota Contractor/Agents” means any independent contractors, subcontractors, or other non
employees that perform any of Smiota’s obligations hereunder or act on behalf of Smiota in
connection with this Agreement. Smiota shall have the right to use Smiota Contractor/Agents. All
actions of Smiota Contractor/Agents are attributable to Smiota for all purposes under this
Agreement.