EYESPY360
MASTER SERVICES AGREEMENT
This Master Services Agreement is made on the date you accept the Term and Conditions and is by and between EyeSpy360 Limited (England) (“EyeSpy360”) and YOU (the “Client”);

Each a “party” and together referred to as the “parties”.
BACKGROUND
(A) EyeSpy360 provides an online Saas based platform that allows users of the platform to create virtual tours, 3D models, floor plans and use its associated features and services through its owned and proprietary software via the internet in a secure way (the “Services”).
(B) EyeSpy360 agrees to perform for the Client the Services as requested by the Client or their customer/trade body/member/affiliate/partner or introduced contact in accordance with the terms of this Agreement pursuant to written statements of work in the form set forth in Schedule 1 attached hereto.
(C) EyeSpy360 and the Client have agreed the specifications and requirements for the Services to be performed by EyeSpy360, in exchange for which the Client shall pay or facilitate the Introduced Customers pay EyeSpy360 the compensation set forth in the SOW.
(D) The Client wishes to have EyeSpy360 perform and/or make available the Services on the terms set out herein in this Agreement and the SOW either directly or to the Introduced Customers.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL AGREEMENTS AND COVENANTS SET FORTH HEREIN, AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, IT IS HEREBY AGREED BY THE PARTIES AS FOLLOWS:

1. DEFINITIONS
1.1. The following terms shall have the following meanings, unless the context otherwise requires:
Agreement means this Master Services Agreement including any SOW;
Client Equipment means any equipment, systems or facilities provided by the Client and used directly or indirectly in connection with the Services;
Client Material(s) means any and all material and content (i) provided to EyeSpy360 by or on behalf of the Client from time to time for use with or incorporation into the Services;
Commencement Date means the date first written above of this Master Services Agreement;
Confidential Information means any confidential and/or proprietary information including where appropriate EyeSpy360 Materials and Client Materials (whether conveyed orally, in writing or in machine readable form) of either party which is not generally known to the public or which is reasonably to be regarded as of a confidential nature (whether or not expressly identified as such) and which has been or is hereafter disclosed or made available by either party, including, without limitation, information relating to the disclosing party’s business, pricing, customers or clients (including their non-public personal information), suppliers, contacts, software applications, trade secrets, accounts, know-how, processes and product developments and data, drawings, specification, object and source code of software, financial, sales and distribution, marketing, research, organizational, employee, technical information, policies or practices, portfolio holdings and securities related information and the terms of this Agreement;

Data Protection Laws means all reasonably applicable local, state, national and federal laws and where appropriate all data protection regulations such as GDPR, CCPA deemed to be applicable;
Force Majeure Event means any circumstance that is both beyond the reasonable control of either party and unforeseeable, including any one or more of the following events: acts of God, fire, explosions or floods, outbreaks of hostilities, riots, civil disturbances or acts of terrorism, or acts or omissions of any government authority or any third-party supplier. For the avoidance of any doubt, cyber-attacks are not a Force Majeure Event;
EyeSpy360 Material(s) means material owned, acquired, developed by, or licensed to EyeSpy360, excluding any Client Materials;
EyeSpy360 Working Hours means the hours of 8:00 a.m. through 6:00 p.m. EST time on a Working Day, unless otherwise indicated in the applicable SOW.
Indemnified Party means as set out in Section 12 below;
Introduced Customers means any actual or potential person, client, customer, trade body, organisation, company, firm introduced by the Client to EyeSpy360 who sign-up, pay and having completed the registration process including accepting the Terms and Conditions use the Services;
IPR (Intellectual Property Right) means copyrights, patents, trademarks, trade secrets, registered designs, database rights, know-how, rights in and to goodwill and to sue for passing off, rights in domain names, semi-conductor topography rights, moral rights and all other legal and beneficial intellectual and industrial property and similar rights of all types under the laws of any governmental authority in any jurisdiction no matter what such rights may be known as in any particular country in the world, including all renewals, applications and registrations relating to any of the foregoing;
Personal Data means non-public personally identifiable information;
Saas means the provision of the EyeSpy360 solution via Software as a Service (namely the distribution model in which a third-party provider hosts applications and makes them available to customers over the internet)
Services means the services, Software (Saas based licensed solution to the services) and associated solutions provided to the Client in Section 2 and as set out in any SOW
Software means the wholly owned Saas software, allowing uploaded 360 degrees photos to be uploaded and the creation of a virtual tour of a property, created and owned by EyeSpy360 and made available for use by the Client or the Introduced Customers as the Services in accordance with the Terms and Conditions;
Terms & Conditions means EysSpy’s standard terms and conditions required to be accepted by all entities using the Services as in effect from time to time.
SOW means the statement of work prepared by EyeSpy360 and executed by EyeSpy360 and the Client with respect to the performance of certain Services;
Working Day(s) means any day other than a Saturday, Sunday or other day on which commercial banks in London are authorized or required by law to remain closed; and

1.2. The headings in this Agreement do not affect its interpretation. Unless the context otherwise requires, reference to Sections s and schedules are to Sections and schedules of this Agreement.
1.3. Where the words “include(s),” “including” or “in particular” are used in this Agreement, they are deemed to have the words “without limitation” following them, and where the context permits, the words “other” and “otherwise” are illustrative and shall not limit the sense of the words preceding them.
1.4. Any obligation in this Agreement on a person not to take a certain action includes an obligation not to agree, permit, allow or acquiesce in such action being performed.
1.5. In the event of a conflict or inconsistency between this Agreement and an SOW, the terms of the SOW shall take priority over this Agreement.
1.6. Unless the context otherwise so requires, (i) words in the singular form shall include the plural form, and vice versa, (ii) words with respect to a particular gender shall include all other genders, (iii) words importing the whole shall be treated as including reference to any part of the whole, (iv) reference to this Agreement or to any other document is a reference to this Agreement or to that other document as modified, amended, varied, supplemented, assigned, novated or replaced from time to time, (v) references to EyeSpy360 and the Client include their permitted successors and assigns, (vi) a “writing” includes an email transmission (where the receiving party acknowledges receipt) but excludes a facsimile transmission, SMS and similar means of communication, (vii) a reference to a statutory provision is a reference to that statutory provision, as amended, and (viii) a "person" includes any individual, firm, company, association, corporation, partnership, limited liability company, body corporate, government, state or agency of state, trust or foundation (whether or not having separate legal personality and wherever incorporated or established).
2. ORDER PROCESS AND APPLICATION OF TERMS
2.1. EyeSpy360 shall provide the Services in the validly executed SOW for and on behalf of the Client and/or the Introduced Customers. Support shall be provided as indicated in the SOW and within the EyeSpy360 Working Hours via the EyeSpy360’s standard support team.
2.2. No request for Services by the Client shall be deemed to be accepted by EyeSpy360 until the parties have executed a SOW with respect thereto and EyeSpy360 has received /will receive payment for the Services in accordance with the payment schedule set forth in the applicable SOW. In the unlikely event that a payment schedule is ambiguous in the SOW, EyeSpy360’s accounts department shall deem an invoice to be due within ten (10) days following the date of each properly issued invoice to the Client or the Introduced Customer.
2.3. The parties agree that EyeSpy360 shall provide certain Services to the Client or the Introduced Customer, the specific terms of which are set out in each SOW, which, when executed by the parties, shall be deemed a part of this Agreement and subject to the terms hereof.
2.4. The Services shall be performed subject to the terms set forth in this Agreement and as further set out in the applicable SOW and the parties agree to comply with their obligations.
3. APPOINTMENT AND TERM
3.1. The Client appoints EyeSpy360 exclusively to carry out the Services on its behalf and that of the Introduced Customers and EyeSpy360 agrees to provide the Services in accordance with this Agreement, the sow and ultimately its Terms and Conditions (including subject to any limitations or exclusions set out in this Agreement and/or the applicable SOW for such Services).
3.2. The term of this Agreement shall commence on the Commencement Date and shall continue for an initial term of three years, thereafter, will automatically be extended for an additional term of one (1) year, unless or until terminated in accordance with the terms of this Agreement (the “Term”). Due to the amount of time and money invested by EyeSpy360 in the first year of this Agreement, no party shall be entitled to terminate in the first year (except for material breach).

4. SERVICES
4.1. The Client acknowledges and agrees that the Services shall be provided in accordance with the agreed Service levels set forth in the SOW and in Section 4.2 below.
4.2. EyeSpy360 shall, unless otherwise agreed, provide the Services for the duration of the Term as per the terms of the SOW. EyeSpy360 does not warrant that the Services will be uninterrupted or error free. EyeSpy360 warrants that access to the Services will be fully-available and functional at all times, subject only to down time for the performance of necessary maintenance with respect to the Services, and will have at least 99.5% availability averaged over each successive three calendar month period commencing on the first date that the Services are performed (the “Average Availability Period”). The SOW shall state the expected service level metrics agreed between the parties. The Client acknowledges that, from time to time, maintenance to the Services may be required, and that it may be necessary for the provision of some or all of the Services to be temporarily suspended; provided, that in anticipation of such maintenance, EyeSpy360 shall provide the Client with at least three (3) days’ prior written notice of any such suspension (except in the case of emergencies determined on a reasonable basis by EyeSpy360, in which case EyeSpy360 shall provide as much prior notice as is reasonably practicable). The Client shall provide EyeSpy360 with such assistance and access to Client Materials as EyeSpy360 may reasonably require, and EyeSpy360 shall use commercially reasonable efforts to carry out all maintenance so as to minimize disruption to the Client. In all cases, any suspension(s) of the Services (whether for planned maintenance or emergencies) shall be for no longer than an aggregate total of 24 hours in any calendar month (“Permitted Downtime”).
5. INFORMATION SECURITY
5.1 Security Measures. EyeSpy360 shall maintain commercially reasonable security measures that are designed to, (i) ensure the security of the Client’s Confidential Information stored by or in possession of EyeSpy360; (ii) protect against any anticipated threats or hazards to the security or integrity of the Client’s Confidential Information stored by or in possession of EyeSpy360; and (iii) protect against any unauthorized access to or use of the Client’s Confidential Information as stored by or in possession of EyeSpy360.
5.2 Notification and Prevention Obligations. Upon becoming aware of any actual security breach to its infrastructure that may result in the unauthorized access to, or disclosure of, unencrypted Client Confidential Information, EyeSpy360 shall promptly notify the Client. This notification will state in reasonable detail the Client Confidential Information at risk. EyeSpy360 agrees to take all actions reasonably necessary under the circumstances to immediately prevent the continued unauthorized access of such information. EyeSpy360 further agrees that in the event of a breach of confidentiality or security, it will work in good faith and cooperate with the Client to address the breach. EyeSpy360 shall not be responsible or liable for any security breach caused by the Client.
5.3 The parties may communicate by e-mail in connection with the Services. The parties acknowledge that e-mail communication is not secure and can be subject to possible delay, data corruption, interception, amendment or loss. The parties accept the inherent risks of communicating by e-mail including the possible unauthorised interception, redirection, copying or review of e-mails and attachments and the transmission of viruses. The use of e-mail by either party to communicate and transmit information will not in and of itself constitute a breach of the confidentiality obligations under the Agreement; provided, however, that, to the extent that transmittal of Confidential Information via e-mail communication is required, the parties shall encrypt at the application level all Confidential Information.
6. AMENDMENTS TO THIS AGREEMENT, SOWS, SERVICES AND ADDITIONAL SERVICES
6.1 Any amendments to this Agreement or any SOW, or any additional Services which the Client requests from EyeSpy360, shall be agreed upon in writing. All other terms and conditions set forth herein shall apply to the amended SOW.
7. SUBCONTRACTING
7.1 EyeSpy360 shall be entitled to subcontract any part of its obligations hereunder to such sub-contractors and upon such terms and conditions as EyeSpy360 shall determine in its sole discretion, provided that (i) as between EyeSpy360 and the Client, EyeSpy360 shall remain responsible for the performance of its duties and obligations hereunder and (ii) EyeSpy360 shall exercise commercially reasonable skill and care in its selection and appointment of sub-contractors.
5. 8. CLIENT OBLIGATIONS
8.1. The Client shall provide EyeSpy360 with such access to the Client Materials, the Client Equipment and the systems of the Client as EyeSpy360 may reasonably require for the purpose of performing the Services, in a timely manner, and shall otherwise cooperate with EyeSpy360 in providing such other information as may be necessary in connection with the performance of such Services and as may be reasonably requested by EyeSpy360. EyeSpy360 acknowledges and agrees that the Client Materials are and shall remain the exclusive property of the Client or its licensors and shall be used by EyeSpy360 to the extent necessary for its performance of the Services.
8.2. The Client shall:
8.2.1. comply with and/or perform all Client responsibilities and obligations as may be set forth in this Agreement and any SOW;
8.2.3. use reasonable efforts to ensure that all Client Material provided to EyeSpy360 is accurate in all respects and free from all malicious codes and viruses (it being acknowledged and agreed that EyeSpy360 makes no judgement as to the nature of the Client Material in any way (including as to whether it is malicious or inappropriate) and will solely capture Client Material within the agreed parameters of the SOW);
8.2.4. where applicable, use reasonable efforts to ensure that all Client Equipment, hosting services and other infrastructure supporting the websites and content repositories of the Client are in good working order and suitable for the purposes for which they are used in relation to the Services and otherwise conform to all applicable standards or requirements;
8.2.5. obtain and maintain all necessary licences and consents, and comply with all relevant legislation, in relation to delivery of the Services, the use of Client Material and the use of the Client Equipment during the Term;
8.2.6. use reasonable efforts to ensure that its third-party providers (e.g., hosting providers, MLS and property portals) cooperate with EyeSpy360 in connection with the performance of the Services;
8.2.7. use reasonable efforts to ensure that all users of Services under its direction and within its power and control comply with such access and security procedures relating to the Services as EyeSpy360 may reasonably specify to the Client from time to time;
8.2.8. keep, and use reasonable efforts to ensure that users of Services under its direction and within its power or control keep, confidential all log-on details and passwords provided to the Client by EyeSpy360 and not share any such information with any person or entity and make all arrangements (including technological arrangements) as may be necessary to access the Services; and
8.2.8. deal promptly with any queries from website owners directed to them by EyeSpy360 and notify EyeSpy360 promptly of material issues raised which may impact on the performance of the Services.
8.3. The Client covenants and agrees that it shall not:
8.3.1. misuse the Services (including by hacking or by knowingly introducing viruses, worms or any other material which is or may be malicious or technologically harmful);
8.3.2. attempt to alter the Services in any way; or
8.3.3. attempt to gain or encourage others to gain unauthorized access to the Services.
9. INTELLECTUAL PROPERTY RIGHTS AND SOFTWARE
9.1. The Client hereby grants to EyeSpy360 a non-exclusive, worldwide, sub-licensable, royalty-free licence to use the Client Material during the Term solely for the purposes of performing the Services.
9.2. EyeSpy360 acknowledges that, as between EyeSpy360 and the Client, the Client or any relevant third-party licensor is the sole legal and beneficial owner of the IPRs in the Client Material and that all use of the Client Material and any goodwill that arises from such use will accrue to the benefit of the Client or the relevant third-party licensor (as appropriate). EyeSpy360 shall, at the reasonable expense of the Client, execute such assignments of goodwill relating to the IPRs or the Client Material and do all such other acts as the Client may reasonably request in connection with this Section 9.2.
9.3. EyeSpy360 grants the Client a non-exclusive, revocable, non-sublicensable, limited right to access/use the Software as a service during the Term strictly for the purposes of receiving and using the Services.
9.4. The Client acknowledges that, as between EyeSpy360 and the Client, EyeSpy360 or any relevant third-party licensor is the sole legal and beneficial owner of the IPRs in the Services and the Software and that all use of the Services and the Software and any goodwill that arises from such use will accrue to the benefit of EyeSpy360 or the relevant third-party licensor (as appropriate). The Client shall, at the reasonable expense of EyeSpy360, execute such assignments of goodwill relating to the IPRs in the Services and/or Software and do all such other acts as EyeSpy360 may reasonably require in connection with this Section 9.4.
9.5 In the event that any IPR infringement occurs or may occur in connection with EyeSpy360’s provision of the Services and the Client’s right to use the Software and/or the Services are enjoined or impaired thereby, EyeSpy360 shall immediately:
9.5.1. procure for the Client the right to continue using the Software and/or Services or infringing part of them;
9.5.2. modify or amend the Software and/or the Services, or the infringing part thereof, so that the same becomes non-infringing and is of substantially similar capability as in effect immediately prior to such modification; or
9.5.3. replace the Software and/or the Services or the infringing part thereof with other software or services of substantially similar capability as in effect immediately prior to such replacement.
9.6. The Client shall not:
9.6.1. obtain or claim any ownership in any Software (or in any derivation thereof or improvement thereto) or in other materials provided by EyeSpy360 under this Agreement, including situations where Client has paid EyeSpy360 for improvements and modifications to the Software;
9.6.2. copy the Software except as required for the purposes of this Agreement or as agreed in writing by EyeSpy360 and in accordance with the terms of any applicable software license;
9.6.3 reverse engineer, decompile or disassemble Software;
9.6.4 sell, lease, license or sublicense the Software; or
9.6.5. create, write or develop any derivative software or any other software based on the Software, unless expressly permitted to do so in a SOW or, if applicable, relevant third-party licence agreement.
10. FEES, TAXES AND TERMS OF PAYMENT
10.1. In connection with the performance of Services set forth in a SOW, EyeSpy360 shall deliver an invoice to the Client with respect to payment therefore in accordance with the payment schedule set forth in the applicable SOW. The Client and/or the Introduced Customer shall pay by EyeSpy360 the fees agreed under the terms of such SOW, which shall be due and payable as set out in the relevant payment schedule (or, if not otherwise stated, within ten (10) days following the date of each invoice). EyeSpy360 reserves the right to withdraw or suspend the Client’s access to and use of the Services and provision of any further Services, if any remain outstanding fifteen (15) days or more beyond the due date. EyeSpy360 reserves its right to immediately suspend Client’s access to the Services in the event of the Client being in material breach of this Agreement.
10.2. At EyeSpy360’s sole discretion, any payment that is not made by the Client by the due date, EyeSpy360 shall have the option to charge interest at the rate of 1.5% per month until such full amount is paid to EyeSpy360.
10.3. All invoices shall be denominated in US Dollars or the currency expressly agreed to in the SOW and be paid in accordance with the SOW and this Agreement.
10.4. The fees due from the Client under this Agreement are exclusive of VAT, sales tax and any other applicable taxes or levies, which shall also be charged (in accordance with the law) and are required to be paid by the Client at the rates in force at the date any payment is required from the Client.
11. WARRANTIES
11.1. Except for the warranties set forth in this Agreement, EyeSpy360 disclaims all other warranties for any kind, express or implied, by operation of law or otherwise, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. EyeSpy360 represents, warrants, and covenants that:
11.1.1 it has full power and authority to enter into and perform this Agreement and that its entry into and performance of this Agreement will not infringe the rights of any third-party or cause it to be in breach of any rights of, or obligations to, a third-party;
11.1.2 all persons working on the Services are and shall be competent and suitable, whether as to qualifications, experience or otherwise, to perform the Services and that the Services will be performed with commercially reasonable skill and care;
11.1.3. to the extent that it processes any Personal Data on behalf of the Client, it shall act only on the instructions of the Client;
11.1.4. to its knowledge and belief, the use of the Software by the Client in accordance with this Agreement does not infringe any third-party IPRs.
11.2. Except for the warranties set forth in this Agreement, the Client disclaims all other warranties of any kind, express or implied, by operation of law or otherwise, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. The Client represents, warrants, and covenants that:
11.2.1. it has full power and authority to enter into and perform this Agreement and that its entry into and performance of this Agreement will not infringe the rights of any third-party or cause it to be in breach of any rights of or obligations to a third-party;
11.2.2. it owns or has licensed to it all necessary IPRs in the Client Materials such that the Client Materials do not infringe on and are not in breach of any third-party rights, including IPRs;
11.2.3. the Client Materials do not infringe any applicable laws or regulations and do not contain any material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, or blasphemous (the parties acknowledge that EyeSpy360 makes no judgement as to the nature of the Client Material (including as to its legality or appropriateness of such) and will solely capture Client Material within the agreed parameters of the SOW);
11.2.4. it will at all times comply with applicable Data Protection Laws (including in the collection and retention of Personal Data);
11.2.5. it will obtain and maintain, at its own expense, all necessary licences, and authorizations (including from third-party providers (e.g., hosting providers));
11.2.6. it will comply with all applicable laws, regulations, regulatory requirements and codes of practice in connection with its obligations under this Agreement and in all matters relating hereto; and
11.2.7. it has obtained all third-party consents necessary for EyeSpy360 to perform the Services pursuant to this Agreement and all applicable SOWS (including, without limitation, consents from third-party providers (e.g., hosting providers) to have any and all Client Material stored on their servers be captured by EyeSpy360).

12. LIMITATION OF LIABILITY
12.1. Neither party shall be liable to the other party to this Agreement (or any other third-party claiming through a party to this Agreement) for any damage, loss, claims, proceedings, demands, liabilities, costs or expenses whatsoever suffered or incurred by such other party (or any other third-party claiming through a party to this Agreement) at any time from any cause whatsoever unless arising directly as a result of a (ii) breach of this Agreement by the other party or (ii) the other party’s actual fraud, gross negligence or wilful default. No person shall be found to have committed actual fraud, gross negligence or wilful default under this Agreement unless or until a U.S. Federal court with proper jurisdiction has reached a final non-appealable determination to that effect.
12.2. Neither party shall be liable to the other party under this Agreement (or any third-party claiming through a party to this Agreement) for consequential, indirect, incidental, enhanced, punitive or special loss or damage (including any loss of goodwill or reputation) arising out of or in connection with this Agreement, in each case whether or not such Party has been advised of the possibility of such loss or damage and howsoever incurred.
12.3. For the avoidance of doubt, EyeSpy360 shall have no liability to the Client for a claim that the Software or the use of the Services infringes upon the IPRs of a third-party in the event that such claim arises directly from use of the Services by the Client other than as expressly set out in this Agreement.
13. INDEMNITY
13.1. EyeSpy360’s liability under this Agreement shall be limited to one of the following, at EyeSpy360’s election: (i) prompt performance of the Services by EyeSpy360 in accordance with the terms of this Agreement; or (ii) a refund of the fees paid in respect of the Services actually paid by the Client or the Introduced Customer to EyeSpy360 pursuant to Section 13.2.
13.2. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY AMOUNTS IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY CLIENT TO EYESPY360 IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SAID LIABILITY. THIS SECTION 13.2. WILL NOT APPLY TO ANY CLAIM FOR UNPAID FEES OR TO ANY BREACHES OF SECTION 11 (WARRANTIES); AND PROVIDED FURTHER THAT THIS LIMIT WILL BE MULTIPLIED BY A FACTOR OF THREE (3) WITH RESPECT TO CLAIMS BY A NON-BREACHING PARTY THAT THE OTHER PARTY BREACHED SECTION 5 (INFORMATION SECURITY), SECTION 14 (CONFIDENTIAL INFORMATION AND PUBLICITY), OR SECTION 9.5 (INTELLECTUAL PROPERTY RIGHTS AND SOFTWARE). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE LIMITS ON LIABILITY AND INDEMNITY SET FORTH IN SECTION 12 OF THE AGREEMENT AND IN THIS SECTION 13 OF THE AGREEMENT SHALL NOT APPLY TO DAMAGES AND LIABILITY RESULTING FROM FRAUD OR A BREACH TO SECTION 5 (INFORMATION SECURITY) OR SECTION 14 (CONFIDENTIAL INFORMATION) OF THE AGREEMENT.
13.3. Subject to Section 13.2 above, each party agrees to indemnify and hold harmless the other party (each, an “Indemnified Party”) against any liabilities, obligations, losses, penalties, actions, proceedings, claims, judgments, demands, costs, damages, expenses or disbursements of any kind whatsoever (including legal fees and expenses) that they may incur or be subject to in consequence of this Agreement or as a result of the performance of the Services except as a result of a party’s (i) breach of this Agreement or (ii) actual fraud, gross negligence or wilful default of the Indemnified Party. An Indemnifying Party’s obligations under this Section 13.3.1 is conditional on the other party: (i) notifying the Indemnifying Party immediately upon receiving a Claim or IP Claim and providing a written copy of same setting forth in reasonable detail the facts and circumstances surrounding the claim, (ii) fully cooperating with the Indemnifying Party in the defense or settlement of the Claim or IP Claim, and (iii) providing the Indemnifying Party with all necessary authority to defend or settle the Claim or IP Claim. A Defendant may participate in the defense or settlement of the Claim at its own expense. The indemnity under this Section 13.3. shall inure to the benefit of any Indemnified Party existing or future.

14. CONFIDENTIAL INFORMATION AND PUBLICITY
14.1. Each party will maintain the confidentiality of the existence of this Agreement (and all Schedules and applicable SOWs), this agreement including the terms and conditions, the transactions engaged in hereunder and thereunder and all information exchanged in connection herewith and therewith and the performance of the obligations herein and therein. The substance of this Agreement shall be disclosed by a party only to (i) such party’s employees, subcontractors, agents and/or representatives who have a legitimate need to know such information for the purpose of evaluating and performing the transactions set forth herein, or (ii) as required by governmental bodies; law enforcement authorities; or any federal or state regulator having jurisdiction over the Client or any self-regulatory organization of which the Client is a member, including, for instance, the United States Securities and Exchange Commission, the Financial Industry Regulatory Authority, the Commodities Futures Trading Commission, the National Futures Association and any State securities regulator (each, a “Regulator” and, collectively, “Regulators”). EyeSpy360 shall not publicize or make any public statements or releases regarding this Agreement without the prior written consent of the Client, such consent to prepare a suitable case-study not to be unreasonably withheld. The parties acknowledge that the transactions proposed herein except as required by governmental bodies, law enforcement authorities and/or any Regulator, in which event the party required to make the disclosure will, where permissible, request confidential treatment with respect to the terms of this Agreement. Notwithstanding the foregoing, neither party will be prevented from disclosing information to its employees, subcontractors and agents, which (i) belongs to such party or (ii) is (A) already known by the recipient party without an obligation of confidentiality and other than pursuant to this Agreement, (B) publicly known or becomes publicly known through no unauthorized act of the recipient party, (C) rightfully received from a third-party with no obligation of confidentiality, (D) independently developed without use of the other party’s confidential information, (E) disclosed without similar restrictions to a third-party by the party owning the confidential information, (F) approved by the other party for disclosure or (G) required to be disclosed pursuant to a requirement of a governmental body or by law. Each party agrees that in the event of any breach of this Section 14.1 of the Agreement by the other party or any of its employees, subcontractors, agents and/or representatives, the non-breaching party would be irreparably and immediately harmed and could not be made whole by monetary damages. Accordingly, the parties agree that the non-breaching party, in addition to any other remedy to which it may be entitled in law or equity, shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to compel specific performance of this Agreement, without the need for proof of actual damages.
14.2. The provisions of this Section 14.2 of the Agreement shall survive the Term and continue in force notwithstanding the termination or expiration of this Agreement.
15. TERMINATION AND CONSEQUENCES OF TERMINATION
15.1. Except in the first year, either party may terminate this Agreement by providing written notice to the other party at least ninety (90) days prior to the end date of the current term.
15.2. Either party may terminate this Agreement immediately upon written notice to the other party at any time in the event that:
15.2.1. the other party commits any material breach (which breach shall not be the result of force majeure) of any of the provisions of this Agreement and fails to remedy the same within thirty (30) days after receipt of a written notice from the non-breaching party giving full particulars of the breach and requiring it to be remedied;
15.2.2. the other party becomes insolvent, makes an assignment for the benefit of its creditors or a petition in bankruptcy under applicable bankruptcy law is filed by or against such party (including similar events occurring under the laws of countries other than the United States);
15.2.3. a receiver or other conservator is appointed for such other party, or for a substantial part of the property of such other party (including any similar event occurring under the laws of countries other than the United States);
15.2.4 there is instituted a proceeding for the dissolution of such other party otherwise than in connection with a merger, consolidation or similar transaction including any similar event occurring under the laws of countries other than the United States).
15.3. The termination of this Agreement, for whatever cause, shall not affect any provision of this Agreement expressly or by implication intended to survive or operate in the event of the termination of this Agreement and shall not prejudice or affect the rights of either party against the other party in respect of any breach of this Agreement or in respect of any monies payable by any party to the other party in relation to any period prior to termination.
15.4. In addition to / alongside surviving rights herein, on the expiration or termination of this Agreement:
15.4.1. EyeSpy360 shall immediately cease the provision of the Services with notification to the Client and all fees shall be payable to EyeSpy360 up to the date of such cessation of Services. Client will immediately cease to access the Services, and if applicable will uninstall any EyeSpy360 Software that was installed on its equipment in connection with the Services;
15.4.2. the rights granted by either party to the other party under this Agreement shall cease (including, without limitation, the right of the Client to use the Services and the Software), and neither party shall have any further obligations to the other party except for those obligations which accrued prior to the date of expiration or termination and those obligations which are intended to survive the expiration or termination of this Agreement;
15.4.3. EyeSpy360 shall provide only basic assistance to the Client in transferring all Client Materials, Client Confidential Information stored by EyeSpy360 to Client (“Termination Assistance”). Should the Client require Termination Assistance EyeSpy360 will prepare a further SOW using its standard hourly fees for the Client to either accept or reject. Unless otherwise agreed by the parties in writing, EyeSpy360 shall have no obligation to continue to preserve the Client Materials, Client Confidential Information after Termination Assistance has been completed as confirmed by the Client in writing, and shall, as promptly as practicable, delete all Client Materials, Client Confidential Information and all copies of the foregoing from its systems and certify in writing that it has done so;
15.4.4. the Client will immediately cease to access to the affected Services, and if applicable will uninstall any EyeSpy360 software that was installed on its equipment in connection with the Services; and
15.4.5. the Client shall promptly return all copies of EyeSpy360 Confidential Information and EyeSpy360 Material to EyeSpy360 or, at the election of EyeSpy360, destroy such information and certify in writing that it has done so.
15.5. Should the Client wish to engage EyeSpy360 to assist with additional services post termination, the parties agree to negotiate in good faith and the Client agrees that said additional post termination services shall be at such EyeSpy360 standard rates as may be in force at that time.
16. FORCE MAJEURE
16.1. Neither party shall be liable to the other party or any third-party for, and there shall not be deemed to be a breach of this Agreement or any SOW in the event of a delay in performance or inability to perform due to a Force Majeure Event. In the event that a party’s performance hereunder or under a SOW is delayed by a Force Majeure Event, any time for performance shall be reasonably extended.
17. NON-SOLICITATION
17.1. The parties agree that, during the Term and for a period of one (1) year after the expiration or termination of this Agreement, each party will not, without the prior written consent of the other party, directly or indirectly, on its own behalf or in the service of or on behalf of others, solicit, divert, or hire away, or attempt to solicit, divert, or hire away, any person, in any capacity (employment, consulting, ownership or otherwise) who is a full or part-time employee or contractor of such party and/or was a full or part-time employee or contractor of such party at any time during the Term of this Agreement. The obligations of this Section 17.1 shall survive the expiration and/or earlier termination of this Agreement.
18. NOTICES
18.1. Any notice, or other communication, which either party is required by this Agreement to serve on the other party shall be sent to the address on record and shall be (i) delivered personally, (ii) mailed by certified or registered mail, postage prepaid and return receipt requested, or (iii) sent by a nationally recognized overnight courier service
18.2. Notices sent by certified or registered mail to addresses within the United States shall be deemed to be served three (3) business days following the day of delivery. Notices sent by certified or registered mail to addresses outside of the United States shall be deemed to be served ten (10) business days following the day of posting. Notices sent by email shall be deemed to be served on receipt unless a return email acknowledging receipt of the notice is communicated to the sender. In all other cases, notices are deemed to be served on the day when they are actually received.
19. GENERAL
19.1. The failure of either party to enforce or to exercise at any time or for any period any term of or any right pursuant to this Agreement shall not be construed as a waiver of any such term or right and shall in no way affect that party’s right later to enforce or exercise such right.
19.2. If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, then such invalidity or unenforceability shall not affect the other provisions of this Agreement, which shall remain in full force and effect. The parties agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
19.3. This Agreement may not be assigned by either party without the prior written consent of the other party, which shall not be unreasonably withheld, conditioned or delayed. Subject to the foregoing, all of the terms and provisions of this Agreement shall be binding upon, inure to the benefit of and be enforceable by the respective successors and permitted assigns of the parties hereto. Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
19.4. A person who is not a party to this Agreement has no rights to enforce any term of this Agreement.
19.5. Nothing in this Agreement shall be deemed to create or imply the existence of a partnership or joint venture between the parties nor any arrangement which would impose liability on one party for the acts or omissions of the other. In particular, each party acknowledges that it does not have the authority to, and agrees that it will not, at any time as agent for the other in any way, represent the other, pledge the credit of or make any representation or give any warranty on behalf of or contract any rights and liabilities on the other’s behalf.
19.6. No amendment to this Agreement shall have effect unless expressly agreed to in writing and signed by each of EyeSpy360 and the Client.
19.7. This Agreement (together with all Schedules hereto and SOWs entered into pursuant hereto) constitutes the entire agreement between the parties and supersedes all previous agreements, arrangements, undertakings or proposals (whether written or oral).
20. GOVERNING LAW AND JURISDICTION
20.1. This Agreement shall be governed by and construed in accordance with the laws of the New York applicable to agreements made and to be performed entirely within such state, without regard to the conflicts of law principles thereof.
20.2. The parties hereto irrevocably consent to the jurisdiction of the United States federal courts and the state courts located in the State of Delaware in any suit or proceeding based on or arising under this Agreement and irrevocably agree that all claims in respect of such suit or proceeding may be determined in such courts. The parties hereto irrevocably waive the defense of an inconvenient forum to the maintenance of such suit or proceeding. The parties further agree that service of process upon the other party mailed by first class mail shall be deemed in every respect effective service of process upon such party in any such suit or proceeding. Nothing herein shall affect the right of the parties to serve process in any other manner permitted by law. The parties agree that a final non-appealable judgment in any such suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on such judgment or in any other lawful manner.

Schedule 1:

SOW #1 As agreed between the parties

This Order Form is made pursuant to the Master Services Agreement (Software as a Service Agreement) (the “Agreement”) made between EyeSpy360 and the Client effective as of the date you accept the Term and Conditions (the “Effective Date”).
The terms of the Agreement are hereby incorporated by reference and capitalized terms used but not defined herein shall have meanings ascribed to them in the Agreement. In the event of any conflict this SOW shall prevail.

Section 1 Services and Services Descriptions

1.1 EyeSpy360 Services

Description of Deliverables/Services

Deliverable

To provide Client and/or Introduced Customers with access to “EyeSpy360’s SaaS based platform. The Client and/or introduced Customers will be able to upload 360 photographs and pay (please see Section 3 below) to have 360 Virtual Tours and 3D models created as well as having access to other features and services.

1.2 Support Services: Customer Service & Technical Support

Telephone, Email and Live Chat will be available Monday - Friday (9am - 6pm EST)
Webinars and/or training sessions will be held at intervals mutually agreed between the parties.

Section 2. Service Levels and Service Credits

2.1 Service Levels
We offer you the ability, upon payment to EysSpy360 the platform to create a full virtual tour, 3D model and floor plan, up to 40 x 360 photographs will be processed and returned to the customer within 24 hours from the point at which EyeSpy360 receives the order and payment is made (subject always to the images being usable).
Orders containing between 40 and 100 x 360 photos will be processed and returned to the customer within 48 hours from the point at which EyeSpy360 receives the order and payment is made (subject always to the images being usable).
Orders containing between over 100 x 360 photos will be processed and returned to the customer within 7 days from the point at which EyeSpy360 receives the order and payment is made (subject always to the images being usable).

2.2 Service Credits

Subject to any manifest error or situation out of the parties reasonable control, delays in respect of delivering the service in clause 2.1 (above) of 24 hours will mean that the ultimate client of EyeSpy360 will be eligible to request a free “replacement” order of up to the size of the original order made.
Subject to any manifest error or situation out of the parties reasonable control, delays in respect of delivering the service in clause 2.1 (above) of 48 hours will mean that the ultimate client of EyeSpy360 will be eligible to request a free “replacement” order of up to the size of the original order made plus a 50% refund.
Subject to any manifest error or situation out of the parties reasonable control, delays in respect of delivering the service in clause 2.1 (above) of 72 hours or more will mean that the ultimate client is eligible to request a full refund of the monies actually paid for the service.

The above would be at the discretion of EyeSpy360 pending an investigation into the specific circumstances.

Section 3. Fees

3.1 Fees: Prices are available at https://www.eyespy360.com/#pricing

Additional fees will be agreed on an ad-hoc basis for any professional photography services required.

3.3 Enterprise Fee:

Advanced payment for virtual tours based on section 3.1 above which can be used at any time (no expiry):

If applicable

Total: $n/a

3.4 Integration Fee:

Fee for co-branded dashboard environment and signup form linked to special price plan:

If applicable

Total: $n/a

All payments are required to me made in USD at the point of registration (in advance)

Section 4: Reports

For Professional Services, EyeSpy360 will provide Client a written report on a monthly basis.