MASTER PRODUCT, SOFTWARE AND SERVICES AGREEMENT

This Master Product, Software and Services Agreement is entered into as of _______________, (the “Master Agreement Effective Date”), by and between Radiant RFID, LLC (“Radiant”) with offices at 1023 Springdale Rd, Bldg 4, Suite B, Austin, TX 78721 and ____________________ (“Customer”) with offices at ______________________. This Master Product, Software and Services Agreement includes any schedules or statements of work separately executed by the parties, and any attachments or exhibits or documents linked to this document, each of which is incorporated herein by reference (collectively the “Agreement”). The Agreement sets forth the terms and conditions under which Customer may (i) purchase Radiant’s products (“Products”) identified on a schedule (the “Schedule(s)”) by Quantity, Product Number, Description, Location, Unit Price and Total Price; (ii) use Radiant’s proprietary software (the “Application(s)”) that is specifically licensed to Customer pursuant to a Schedule; and (iii) use the user documentation that Radiant makes generally available in hard copy or electronic form to its general customer base in conjunction with the licensing of Applications and use of Products (the “Documentation”). The Agreement also sets forth terms and conditions under which Customer may (i) purchase professional services (“Work”) from Radiant pursuant to separate, mutually executed orders (the “Statement(s) of Work”) as may from time to time be issued hereunder; and (ii) use any items developed and/or delivered solely by Radiant and paid for by Customer pursuant to a Statement of Work (the “Deliverables”). The term “Software” shall mean the Applications listed in any Schedule issued hereunder and the Documentation.

SOFTWARE LICENSE GRANT AND RIGHT OF USE

1.1. License Grant. Customer’s right to access and use the Software is subject to the following terms and conditions:

1.1.1 Radiant grants Customer a subscription based, nonexclusive, non-sublicensable and nontransferable right to access and use the Software as hosted by Radiant in conjunction with the Radiant Products (“Use”). Unless otherwise approved by Radant, in writing, Use of the Software shall be limited to Authorized Users. “Authorized Users” shall only consist of employees of Customer.

1.1.2. Customer’s Use of the Software is limited to use with the Products used in conjunction with shipping containers or other assets owned by Customer, including those shipping containers or other assets leased to third parties by Customer. In no event shall Customer permit the use of the Software, in conjunction with the Products or otherwise, by any third party on shipping containers or other assets not owned by Customer. All use of the Software by parties who are not Authorized Users (as defined herein) shall be limited to Authorized Third Party Users. “Authorized Third Party Users” shall mean those third parties that are leasing Customer-owned shipping containers, and that have agreed to the terms and conditions of Radiant’s end user license agreement located at https://app.radiantrfid.com/VATPortal/UserLicenseAgreement.aspx (“EULA”).

1.1.3 The right of access and use granted here in shall be a Sensor License. A “Sensor License” shall mean that the Software may be Used by individual sensors (“Sensors”). Customer shall be charged for the Use of the Software as set forth on Customer’s license schedule. In no event shall a Sensor License be construed to mean a concurrent user license.

1.1.4 All individuals who access the Software, directly or indirectly, whether via a Radiant provided interface or otherwise, and/or cause the Software to perform any function must be Authorized Users. Customer shall not permit use of the Software for service bureau or commercial time-sharing use. Except as otherwise expressly permitted herein or otherwise in writing by Radiant, Customer shall not permit any subsidiaries, affiliated entities, or third parties to access the Software.

1.1.5 In no event shall Customer disassemble, decompile, or reverse engineer the Software or Confidential Information (as defined in Section below) or permit others to do so. Disassembling, decompiling, and reverse engineering include, without limitation: (i) converting the Software from a machine-readable form into a human-readable form; (ii) disassembling or decompiling the Software by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls the Software’s operation and creating the original source code or any approximation thereof by, for example, studying the Software’s behavior in response to a variety of inputs; or (iv) performing any other activity related to the Software that could be construed to be reverse engineering, disassembling, or decompiling. To the extent any such activity may be permitted pursuant to written agreement, the results thereof shall be deemed Confidential Information subject to the requirements of this Agreement.

1.1.6 Notwithstanding this Section, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer or Authorized Users regarding the Software or other Radiant materials provided to Customer shall be owned by Radiant, and Customer hereby agrees to assign any such rights to Radiant. Nothing in this Agreement shall preclude Radiant from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Radiant in the performance of services hereunder.

1.1.7 In connection with Customer’s use of the Software, Radiant requires explicit rights to use data provided by Customer and Authorized Users and Customer represents and warrants that Customer has such rights. As such, Customer grants Radiant the nonexclusive, perpetual, irrevocable right and license to use information provided by Customer and Authorized Users in connection with the Software. Customer further represents and warrants that, in the event that Radiant receives notice of a request to modify personally identifiable data, Customer will make such modification as requested.

PAYMENT

Fees. Unless otherwise provided in the Schedule or Statement of Work, as applicable, Radiant may invoice Customer for all fees and all other charges due thereunder as set forth in an applicable Statement of Work immediately following the Schedule Effective Date. The Software, Work and Deliverables provided by Radiant shall be at the pricing set forth in the applicable Statement of Work. Work fees and applicable expenses shall be billed to Customer monthly.
Payment Due Date. All invoices shall be payable by Customer in United States dollars and payment shall be due thirty (30) days after the invoice date.

Purchase Orders. Unless otherwise described on a Schedule or Statement of Work, Customer agrees to provide Radiant with a valid purchase order, immediately upon execution of a Schedule or a Statement of Work. Notwithstanding anything to the contrary herein, purchase orders are to be used solely for Customer’s accounting purposes and any terms and conditions contained therein shall be deemed null and void with respect to the parties’ relationship and this Agreement. Customer’s failure to issue a purchase order or provide such purchase order to Radiant shall in no way relieve Customer of any obligation entered into pursuant to this Agreement including, but not limited to, its obligation to pay Radiant in a timely fashion.
Late Payment. Any late payment, over 30 days past due, shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.

Taxes. All amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse Radiant and hold Radiant harmless for all sales, use, VAT, excise, property or other taxes or levies which Radiant is required to collect or remit to applicable tax authorities. This provision does not apply to Radiant’s income or franchise taxes, or any taxes for which Customer is exempt, provided Customer has furnished Radiant with a valid tax exemption certificate.

DELIVERY

Product Delivery. The terms of shipment for the Product shall be FOB shipping point and title, risk of loss, and right of possession of the Products will pass from Radiant to Customer at shipping point.

Marking. Customer shall include all copyright notices, proprietary legends, any trademark and service mark attributions, any patent markings, and other indicia of ownership and confidential markings on all copies of the Products, Software and any other Radiant materials provided to Customer, in the content and format contained on the Master Copy and such Radiant materials. Customer shall pay all duplication and distribution costs incurred by Customer in making copies of the Software and shall also pay all custom duties and fees if applicable. Subject only to the license granted herein, all copies of the Software and any other Radiant materials provided to Customer are the property of Radiant or its third-party licensors from whom Radiant has obtained marketing rights (the “Third Party Licensors”).

PROFESSIONAL SERVICES

Statement of Work. Each Statement of Work shall define the Work to be provided to Customer, the applicable pricing, Deliverables to be created thereunder, Customer deliverables and obligations, and all other appropriate terms and conditions. Radiant will not begin any Work unless a Statement of Work governing such Work has been executed by both parties. Radiant may immediately cease performing Work, without liability, if a Statement of Work expires and is not immediately extended or replaced with a valid Statement of Work.

Rights to Deliverables. Subject to Customer’s full payment for Deliverables created under a Statement of Work, Radiant hereby grants to Customer, at no additional charge, an internal, worldwide, nonexclusive, nontransferable license to the object code and source code versions of the Deliverables to (i) modify and otherwise create derivative works based on the Deliverables; and (ii) reproduce, distribute, perform, display (publicly or otherwise), and otherwise use and exploit the Deliverables and derivative works thereof solely in connection with the Software and Products. Unless otherwise specifically stated in an applicable Statement of Work, in no event shall Customer sublicense the Deliverables to any third party.
Third Parties. Radiant shall have the right to use third parties, including employees of Radiant’s affiliates and subsidiaries (the “Subcontractors”) in performance of its obligations and services hereunder.

OWNERSHIP

Reservation of Rights. By signing this Agreement, Customer irrevocably acknowledges that, subject to the licenses granted herein, Customer has no ownership interest in the Software, Deliverables, or Radiant materials provided to Customer. Radiant shall own all right, title, and interest in such Software, Deliverables, or Radiant materials, subject to any limitations associated with intellectual property rights of third parties. Radiant reserves all rights not specifically granted herein.

Data and Log Files. All data and log files produced by the Products or Software are the property of Radiant.

CONFIDENTIALITY

Definition. “Confidential Information” includes all information marked pursuant to Section 6.2 and disclosed by either party, before or after the Master Agreement Effective Date, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information.

Confidentiality of Software. All Confidential Information in tangible form shall be marked as “Confidential” or the like or, if intangible (e.g., visually or orally disclosed), shall be designated as being confidential at the time of disclosure and shall be confirmed as such in writing within thirty (30) days of the initial disclosure. Notwithstanding the foregoing, the following is deemed Radiant Confidential Information with or without such marking or written confirmation: (i) the Software and other related materials furnished by Radiant; (ii) the oral and visual information relating to the Software and Products; (iii) Specifications; (iv) Tag Technology (as defined below); and (v) Radiant’s implementation of social distancing applications and services, method of managing, monitoring and reporting social distancing practices, Radiant’s infrastructure free solution in conjunction with wearables, applications programming interfaces, data modeling and management techniques, data structures, and other information of or relating to Radiant’s software products or derived from testing or other use thereof.

Confidentiality of Readers. Radiant considers the Radiant readers and tags (collectively “Tag Technology”) to be proprietary and subject to legal protections in the United States and other jurisdictions. Any use of, or access to, the Tag Technology by a third party is strictly prohibited including, but not limited to reverse engineering or viewing the operations of Radiant Technology by a third party.

Exceptions. Without granting any right or license, the obligations of the parties hereunder shall not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving party; (ii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality to the receiving party; or (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party. In addition, neither party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to the party whose Confidential Information is to be disclosed so that such party may seek a protective order and engage in other efforts to minimize the required disclosure. The parties shall cooperate fully in seeking such protective order and in engaging in such other efforts.

Ownership of Confidential Information. Nothing in this Agreement shall be construed to convey any title or ownership rights to the Software or other Radiant Confidential Information to Customer or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest in the Radiant Confidential Information. Nothing in this Agreement shall be construed to convey any title or ownership rights to Customer’s Confidential Information to Radiant or to any patent copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest in the Customer Confidential Information. Neither party shall, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in this Agreement. Each party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Confidential Information.

Aggregate/Anonymized Data. Notwithstanding anything contained herein to the contrary, Radiant shall have the right to generate Aggregate/Anonymized Data (as defined below) and Radiant may use and share with third parties such Aggregate/Anonymous Data and associated normalized data for analysis during or after the term of the Agreement. “Aggregate/Anonymous Data” means data that: (i) does not contain any Customer Data or personal data; (ii) is generated by combining Customer Data with other data so that the resulting data cannot be used to directly or indirectly identify Customer, its personnel, partners, consumers or users; and (iii) it is anonymized, including anonymous learnings, logs and data regarding use of the Products or Software.

Non-Disclosure. Each party agrees at all times to keep strictly confidential all Confidential Information belonging to the other party. Each party agrees to restrict access to the other party’s Confidential Information only to those employees, Permitted Contractors, or Subcontractors who (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.

Injunctive Relief. Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party shall be entitled to seek, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the ev ent the other party does not fulfill its obligations under this Section.

WARRANTY

Product Warranty. Radiant warrants that for a period of ninety (90) days from the applicable Schedule Effective Date (the “Warranty Period”), the Products will materially conform to the functional specifications set forth in the Documentation (the “Specifications”). Should the Products fail to materially conform to such Specifications during the Warranty Period, Customer shall promptly notify Radiant in writing on or before the last day of the Warranty Period and identify with specificity the nonconformance. To the extent that the nonconformance exists in a current, unaltered release of the Product, Radiant shall, at its own cost and expense, use commercially reasonable efforts to correct the nonconformance or, if necessary, replace the nonconforming Product.

Authorized Representative. Customer and Radiant warrant that each has the right to enter into this Agreement and that the Agreement and all Schedules and Statements of Work executed hereunder shall be executed by an authorized representative of each entity.

Disclaimer of Warranties. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, RADIANT MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

No Modifications. Notwithstanding anything to the contrary in this Section, any and all warranties under this Agreement are VOID if Customer has made changes to the Products or has permitted any changes to be made other than by or with the express, written approval of Radiant.

Customer Warranty. In connection with Customer’s use of the Products Radiant requires explicit rights to use data provided by Customer and its employees and Customer represents and warrants that Customer has such rights. As such, Customer grants Radiant the nonexclusive, perpetual, irrevocable right and license to use information provided by Customer in connection with the Products. Customer further represents and warrants that in the event that Radiant receives notice of a request to modify personally identifiable data, Customer will make such modification as requested.

LIMITATION OF LIABILITY

Liability Cap. IN NO EVENT SHALL RADIANT, RADIANT’S THIRD PARTY LICENSORS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER IN THE SIX (6) MONTHS PRIOR TO THE CLAIM FOR THE SOFTWARE, PRODUCTS, SERVICES, OR WORK WHICH GAVE RISE TO SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

Disclaimer of Damages. IN NO EVENT SHALL RADIANT, RADIANT’S THIRD PARTY LICENSORS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL ARISING HEREUNDER EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

TERM AND TERMINATION

Termination by Radiant. This Agreement and any license, Schedule, or Statement of Work created hereunder may be terminated by Radiant: (i) if Customer fails to make any payments due hereunder within fifteen (15) days after Radiant delivers notice of default to Customer; (ii) on thirty (30) days written notice to Customer if Customer fails to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period; or (iii) if Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.

Termination by Customer. This Agreement may be terminated by Customer on thirty (30) days written notice to Radiant if Radiant fails to perform any material obligation required of it hereunder, and such failure is not cured within thirty (30) days from Radiant’s receipt of Customer’s notice.

Termination of Agreement. Upon termination of this Agreement or any license hereunder, Customer’s rights to the affected Software, Deliverables, Radiant Confidential Information, and other Radiant materials (collectively “Materials”) shall cease. Customer shall immediately stop using such Materials and shall return such Materials to Radiant, or destroy all copies thereof. In addition, Customer shall provide Radiant with written certification signed by an officer of Customer, that all copies of the Materials have been returned or destroyed and that no copies have been retained by Customer for any purpose whatsoever. Following termination, any use of the Materials by Customer shall be an infringement and/or misappropriation of Radiant’s proprietary rights in the Materials. Upon termination of this Agreement by Customer, Radiant shall have no further obligation or liability hereunder and all fees due under the Agreement shall become due and payable to Radiant immediately upon such termination.

Other Remedies. Termination of this Agreement or any license created hereunder shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under this Agreement including, but not limited to, any Schedule,
Statement of Work, or exhibit.
Customer Obligations
Reserved.
Ancillary Agreements. Customer agrees that no employees of Radiant shall be required to individually sign any agreement in order to perform any services hereunder including, but not limited to, access agreements, security agreements, facilities agreements or individual confidentiality agreements.

Unauthorized Access. In no event shall Radiant be responsible to the extent anyone gains access to Customer’s facilities by means of misuse or misapplication of the Software or Products. By way of example, but not limitation, if more than one individual enters an access point at a time, an access point is propped open, or there is a failure of a third party system, such as described in the Force Majeure provision below, Radiant shall not be liable and Customer will defend, indemnify and hold Radiant and its affiliates and their employees, owners, and officers from and against any claims arising from use of the Software or Products including, but not limited to, claims for injury, sickness or death.

MISCELLANEOUS

Compliance With Laws. Customer agrees to comply with all applicable laws, regulations, and ordinances relating to its performance under this Agreement. The parties agree that the Agreement shall not be governed by the United Nations Convention on the International Sale of Goods or by UCITA, the application of which is expressly excluded.

Assignment. Customer may not assign this Agreement or otherwise transfer any license created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of Radiant. Such consent shall not be unreasonably withheld. Any assignment or transfer in violation of this Section shall be null and void.

Survival. The provisions set forth in sections 2, 3, 5, 6, 7.3, 7.5, 8, 9.3, 9.4, 10.3, and 11 of this Agreement shall survive termination or expiration of this Agreement and any applicable license hereunder.

Notices. Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the face page hereof or to such other address as the parties may designate in writing. Unless otherwise specified, all notices to Radiant shall be sent to the attention of the Contracts Manager. Any notice of material breach shall clearly define the breach including the specific contractual obligation that has been breached.

Force Majeure. Radiant shall not be liable to Customer for any delay or failure of Radiant to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Radiant. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by Customer in providing required resources or support or performing any other requirements hereunder.

Conflict. In the event of a conflict between the terms and conditions of this Agreement, a Schedule, an exhibit, or a Statement of Work, the terms and conditions of the Schedule, Statement of Work, or exhibit shall prevail, in that order.

Entire Agreement. This Agreement, including any separately executed Schedules, Statements of Work, any exhibits and any documents linked to this Agreement, shall constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto. Any signed copy of this Agreement made by reliable means (e.g., photocopy or facsimile) shall be considered an original. Customer acknowledges and agrees that it is not relying on any statement or warranty not expressly provided herein with respect to the Products, Software, Deliverables, Work, or other services provided hereunder.

Modifications. The parties agree that this Agreement cannot be altered, amended or modified, except by a writing signed by an authorized representative of each party.
Nonsolicitation. During the term of this Agreement and for a period of two (2) years thereafter, Customer agrees not to hire, solicit, nor attempt to solicit, the services of any employee or Subcontractor of Radiant without the prior written consent of Radiant. Customer further agrees not to hire, solicit, nor attempt to solicit, the services of any former employee or Subcontractor of Radiant for a period of one (1) year from such former employee’s or Subcontractor’s last date of service with Radiant. Violation of this provision shall entitle Radiant to liquidated damages against Customer equal to two hundred percent (200%) of the solicited person’s gross annual compensation.

Headings. Headings are for reference purposes only, have no substantive effect, and shall not enter into the interpretation hereof.

No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.

Severability and Reformation. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
Independent Contractor. Radiant is an independent contractor and nothing in this Agreement shall be deemed to make Radiant an agent, employee, partner or joint venturer of Customer. Radiant shall have no authority to bind, commit, or otherwise obligate Customer in any manner whatsoever.

Choice of Law. This Agreement shall be governed and interpreted by the laws of the state of Texas without regard to the conflicts of law provisions of any state or jurisdiction. Any action arising out of or related to this Agreement shall be brought in the state or federal courts located in Austin, Texas and each party hereby submits to the exclusive jurisdiction of such courts

By signing below, each party acknowledges that it has read, understands, and agrees to the terms of this Agreement.

Agreed to By:

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DATE