CMS SERVICES MASTER AGREEMENT

The CMS MASTER PRODUCT AND SERVICES AGREEMENT(“Agreement”) is an agreement between you as the Customer and COMMUNICATIONS MANAGEMENT SERVICES, LLC, a Delaware Limited Liability Company with its principal place of business located at 900 Straits Tpke, Middlefield, Connecticut 06492 (“CMS”), that governs your use of CMS security Products and Services. You accept the terms of the Agreement by signing a Product Schedule (or “Order Form”), through your use of the Products and Services, or by continuing to use the Products and Services after being notified of a change to this Agreement.

1. DEFINITIONS

The following terms when used in this Agreement shall have the following meanings:

“CMS EULA” means the license agreement set forth in Exhibit B issued by CMS.

“CMS Hardware” means the CMS PANIC BUTTON, Access point(s), WIFI Cameras, and other CMS Hardware/Firmware as needed/appropriate and identified and described in the Product Schedule hereto.

“CMS Products” means CMS Hardware or CMS Software.

“CMS Software” means CMS proprietary software, including any third-party software (excluding the Third Party Product)and the associated content and documentation accompanying the software, that is designed to access and to work with the CMS Hardware and to create a link between the CMS Products and the Third Party Product.

“End User” means an employee of the  Customer or other person authorized  by Customer to use CMS Products or Third Party Products.

“End User Data” means the information, data, images, videos, and other content, in any form or medium, submitted by or collected from Customer or End Users through the use of CMS Products or the Third Party Products.

“End User License Agreement” or “EULA” means the CMS EULA  or the Third Party EULA.

“Product Schedule” means a schedule substantially in the form of Exhibit A hereto completed and executed with and specifying the license and maintenance fees, and other matters with respect to such Product. A Product Schedule can be amended pursuant to Section 10.5; and additional Products may be added to this Agreement by executing an additional Product Schedule referencing this Agreement. All such Product Schedules are incorporated in this Agreement by this reference.

“Product” means either the CMS Products or the Third Party Products.

“Support and Service Level Policy” or “SLP” means the CMS Panic Button  Service Level Policy set forth in Exhibit C hereto.

“Term” means the Initial Term and any Renewal Term.

“Third Party EULA” means the end user license agreement  provided in connection with certain of the Third Party Products.

“Third Party Product” means software, hardware and other products and services offered by third parties as identified and more fully described in the Product Schedule.

“Third Party Support” means support for the Third Party Products as set forth in Exhibit C hereto.

2. CMS HARDWARE PERMISSSIONS AND LICENSES TO PRODUCTS

        2.1. HARDWARE.

        2.1.1 This section applies to any Products designated as “Hardware” on a Product Schedule. By Customer’s acceptance of the terms of the Product Schedule, Customer thereby agrees to rent the Hardware and pay CMS the monthly amounts set forth on the Product Schedule which includes the rental of the Hardware, plus applicable taxes (the “Monthly  Rental Charges”) for the Initial Term designated on the Product Schedule for the applicable Hardware. Customer acknowledges and agrees and agrees that Customer is unconditionally obligated to pay all Monthly Rental Charges for the Initial Term, and is not entitled to reduce or set-off against any amounts owed relating to the rental of the Hardware for any reason. Customer will be responsible for any damage to or loss of the Hardware, and acknowledges and agrees that no such loss or damage to the Hardware will relieve Customer from its obligation to make all Monthly Rental Charges for the entire Initial Term. Customer agrees to pay when due, either directly or by reimbursing CMS, for all taxes and fees relating to the Hardware (including, but not limited to, sales or use tax due upfront which will be payable over the Initial Term with a finance charge). Customer’s obligations with respect to the Hardware (including, but not limited to, Customer’s obligation to pay Monthly  Rental Charges) shall continue during the Initial Term, or any subsequent Additional Term, unless Customer provides CMS at least thirty (30) days prior written notice that Customer has determined to return the Hardware at the end of the applicable Initial Term or Additional Term and Customer timely returns the Hardware  to the location designated by CMS, at Customer’s expense. Customer acknowledges and agrees that CMS may assign the Hardware and Customer’s payment obligations relating to the Hardware to a third-party for financing purposes and that, if assigned, the assignee will have all of CMS’s rights with respect to the Hardware and Customer’s payment obligations relating to the Hardware, but will not be subject to any claim, defense, or set-off assertable against CMS or anyone else. If the Product Schedule does not identify a specific charge for the Hardware, CMS may impose a fee for any losses or damages resulting from Customer’s use or misuse of the Hardware.

        2.1.2 Customer shall have the right to inspect the Hardware upon arrival at Customer’s facility.  Within five (5) business days after delivery, Customer must provide notice to CMS of any claim with respect to the condition, quality or grade of the Hardware or non-conformance to this Agreement, specifically the basis of the claim in detail.  CMS may, at its option, inspect the Hardware at Customer’s facilities to confirm that the Hardware does not conform.  Failure of Customer to comply with these conditions within the time set forth herein shall constitute irrevocable acceptance of the Hardware by Customer.  In the event that Hardware does not conform to this Agreement, Customer’s sole remedy and CMS’s sole obligation shall be at CMS’s option to replace the Hardware at CMS’s expense or credit Customer the amount of the purchase price for the non-conforming goods.  Return shipping will be the responsibility of CMS.

        2.1.3. In addition to the terms of this Agreement, Customer’s use of any hardware associated with the Third Party Product shall also be governed by and subject to the terms and conditions set forth in the Product Schedule.

        2.1.4 Customer agrees that it will be responsible for and shall ensure that its End Users comply with this Agreement and any EULA as described herein.

        2.1.5 To the extent that CMS sells any Hardware to the Customer, the terms of such sale and any warranties (if any) associated therewith shall be as set forth in the Product Schedule.

2.2  SOFTWARE LICENSE GRANT.

        2.2.1 CMS hereby grants to Customer for use by Customer and its End Users a non-exclusive, non- transferable, non-sublicensable, revocable license to use such CMS Software and Third Party Products in object code form only and solely by Customer for Customer’s internal business purposes in connection with the CMS Hardware and the Third Party Product during the Term. Customer and its End Users shall not engage in, attempt to engage in, or permit or assist others in engaging in, any of the following prohibited activities: (i) use any software, script, code, device, crawler, robot, or other means not provided by Company to access the CMS Software and Third Party Products; (ii) circumvent, disable, or otherwise interfere with security-related features on the CMS Software and Third Party Products; (iii) modify, adapt, translate, reverse engineer, decipher, decompile, or otherwise disassemble any portion of the CMS Products and Third Party Products; (iv) access or use the CMS Products and Third Party Products in any manner that may damage, disable, unduly burden, or impair any part of the CMS Software and Third Party Products, or any servers or networks connected to the CMS Products and Third Party Products; (v) fail to take reasonable actions to limit an excessive number of alarm events generated through the CMS Products and Third Party Products; (vi) post information or interact with the CMS Products and Third Party Products in in a manner which is fraudulent, libelous, abusive, obscene, profane, harassing, or illegal; (vii) use the CMS Products and Third Party Products for any illegal purpose or in violation of any law, statute, rule, permit, ordinance or regulation; (viii) gain or attempt to gain unauthorized access to the CMS Products and Third Party Products; (ix) interfere or attempt to interfere with the CMS Products and Third Party Products provided to any user or network, including, without limitation, via means of submitting a virus to the CMS Products and Third Party Products, spamming, crashing, or otherwise; (x) engage in commercial use or distribution of the CMS Products and Third Party Products, or copy or create any derivative work of the CMS Products and Third Party Products; (xi) use the CMS Products and Third Party Products in any way that infringes or misappropriates any third-party’s rights, including intellectual property rights, copyright, patent, trademark, trade secret, or other proprietary rights, or rights of publicity or privacy; or (xii) use the CMS Products and Third Party Products for the benefit of any third-party. Except for limited rights to use CMS Products and Third Party Products, no license under patents, copyrights, trademarks, service marks, trade names or other indicia of origins or other right is granted to Customer in the CMS Products and Third Party Products or in  trademark, copyright, patent, trade secret or other proprietary rights of CMS, its Licensors or Suppliers nor shall any such rights be implied or arise by estoppel with respect to any transactions contemplated under this Agreement. Use of the CMS Products and Third Party Products by Customer’s End Users also shall be subject to  the CMS EULA.

        2.2.2 In addition to the terms of this Agreement, Customer’s use of software associated with the Third Party Product shall also be governed by any applicable  Third Party EULA.

        2.2.3 Customer agrees that it will be responsible for and shall ensure that its End Users comply with this Agreement and any EULA as described herein.

2.3    LIMITATIONS. The licenses granted in this Section 2 are further limited as follows:

        2.3.1   NO STANDALONE PRODUCT OR SERVICES. Customer may not in any way sell, lease, rent, license, sublicense or otherwise distribute the Product or any part thereof to any person or entity. Unless a specific grant of rights is included in the applicable Product Schedule,  Customer will not allow any of its customers or other third parties to  use the Products to operate a service bureau or other revenue-generating service business.

        2.3.2 PROHIBITED ACTIVITIES. Customer shall not modify, translate, reverse engineer, decompile or disassemble any Product  or any part thereof and shall prohibit any of its End Users  from doing the same.

2.4  TITLE. CUSTOMER acknowledges and agrees that CMS and Its Licensors  own all right, title or ownership interest in and to the CMS Products, including but not limited to any future development of the CMS Products and, except for the limited licenses expressly granted in Sections 2.1 and 2.2 and as further limited by Section 2.3, CMS does not by this Agreement grant to CUSTOMER any right, title or ownership interest in and to the CMS Products.

3. FEES

3.1 FEES. Customer  shall pay CMS the hardware, software and services fees (“Fees”) specified in the  Product Schedule. Unless provided otherwise in the Product Schedule, payment for undisputed charges shall be due thirty  (30) days from Customer’s receipt of invoice. A late payment penalty on any Fees not paid when due shall be assessed charge a late charge equal to the greater of one and one-half percent (1½%) or the highest rate permitted by law, per month, on any amount that is not the subject of a reasonable, good faith dispute that is unpaid on the due date. In addition, CMS may suspend service, in whole or in part, if amounts owed hereunder are past due. Customer acknowledges and agrees that CMS may assign the Hardware and Customer’s payment obligations relating to the Hardware to a third-party for financing purposes and that, if assigned, the assignee will have all of CMS’s rights with respect to the Hardware and Customer’s payment obligations relating to the Hardware, but will not be subject to any claim, defense, or set-off assertable against CMS or anyone else.

3.2 TAXES.  Appropriate state and local sales, use and other similar taxes, and any customs duties, excise tax, value added tax, processing tax or any similar levy or imposition which CMS  now or hereafter will be required to pay to any authoritative governmental body as a result of this Agreement, either on its own behalf or on behalf of Customer, will be added to all applicable invoices and Customer shall be responsible for reimbursement to Customer of any such invoices. If upon audit CMS  is assessed additional taxes in connection with this Agreement, CMS reserves the right to invoice Customer retroactively for such additional assessment, including taxes, interest and penalties. Customer  may provide CMS with an exemption certificate, prepared as per applicable law, or any other evidence reasonably acceptable to CMS that any such taxes do not apply to products, goods and services provided to Customer by CMS.  If any job or portion thereof believed to be exempt from taxes is determined subsequently to be taxable, a Party shall hold the other Party  harmless from the tax liability assessed and pay the tax due, including any interests and penalty.

4. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS. Each Party represents and warrants that: (i) it has the right and power to enter into this Agreement and applicable Product Schedule; and (ii) an authorized representative has read and accepted this this Agreement and applicable Product Schedule. Customer represents and warrants that it has all necessary rights, consents, and permissions to collect, disclose, transfer, license, use, and otherwise exploit End User Data as contemplated in this Agreement. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, NEITHER CMS NOR ITS LICENSORS OR SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. IN PARTICULAR, CMS, ITS LICENSORS OR SUPPLIERS HEREBY SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTY OF MERCHANTABILITY, MERCHANTABLE QUALITY, OR FITNESS FOR ANY PURPOSE, PARTICULAR, SPECIFIC, OR OTHERWISE.

WITHOUT LIMITING THE FOREGOING AND IN ADDITION THERETO WITH RESPECT TO THE USE OF THE PRODUCTS FOR TRADE, BUSINESS AND GOVERNMENTAL, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES, AS A CONDITION TO CUSTOMER’S  PERMITTED USE, THAT USE OF THE PRODUCTS IS AT CUSTOMER’S  SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS ARE PROVIDED “AS IS, WHERE IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND.

CMS, ITS LICENSORS OR SUPPLIERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE PRODUCTS ARE  OR WILL BE ALWAYS COMPATIBLE WITH VARIOUS OTHER APPLICATIONS OPERATING ON OR CHANGES MADE TO THE OPERATING SYSTEM OF CUSTOMER’S COMPUTING DEVICE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PRODUCTS ARE  ONLY DESIGNED AND INTENDED TO OPERATE ON THE VERSION OF THE OPERATING SYSTEM AND DEVICES SPECIFIED, AND INSTALLATION AND USE ON OTHER DEVICES OR VERSIONS OF OPERATING SYSTEMS MAY NOT FUNCTION AS INTENDED OR AT ALL. CUSTOMER FURTHER ACCEPTS THE INHERENT RISKS OF USE OF THE PRODUCTS WITH ALL POSSIBLE FAULTS AND CONDITIONS WHICH MAY IMPAIR ITS OPERATION THAT MAY ARISE, INCLUDING FAILURE OR INTERRUPTION OF COMMUNICATIONS TRANSMISSIONS, ERRONEOUS, INACCURATE, INTERRUPTED OR LOSS OF OR OF ACCESS TO GEO-POSITIONING DATA AND LOCATION INFORMATION, DELAYS IN LACK OF WIRELESS DATA OR COMMUNICATIONS COVERAGE, THIRD PARTY DENIAL OF SERVICE ATTACKS AND OTHER CYBER ATTACKS, THIRD PARTY ORIGINATED MALICIOUS EXECUTABLES, VIRUSES AND TROJAN SOFTWARE, INTERRUPTIONS FROM UNINTENTIONAL OR INTENTIONAL ELECTRONIC INTERFERENCE OR JAMMING OF COMMUNICATIONS, THIRD PARTY CARRIER THROTTLING OF COMMUNICATIONS OR DATA CAPACITY OR DENIAL OF ACCESS DUE TO OVER USE, CONGESTION OR OTHER CONDITIONS, THIRD PARTY SURREPTITIOUS MONITORING OR EAVESDROPPING, UNLAWFUL OR UNAUTHORIZED COPING OR REPRODUCTION OF INFORMATION SENT BY OR THROUGH PRODUCTS BY RECIPIENTS, MESSAGE OR COMMUNICATION DEGRADATION THROUGH PACKET LOSS, TRANSMISSION DELAYS, MISROUTING OR REROUTING OF COMMUNICATIONS, FAILURE OR DAMAGE OR DESTRUCTION TO HARDWARE DEVICES OR EQUIPMENT NECESSARY FOR THE ROUTING, DELIVERY, ACCESSING, AUTHENTICATING OR PROCESSING OF COMMUNICATIONS OR COMMUNICATIONS USERS, SUCH AS, BUT NOT LIMITED TO SERVERS, ROUTERS AND STORAGE DEVICES USED IN CONNECTION WITH THE DELIVERY OF NETWORK, SECURITY, APPLICATION RELATED SERVICES. WITHOUT LIMITING THE FOREGOING, ALL PUBLIC SAFETY, EMERGENCY, HEALTH AND SAFETY, AND CRITICAL SERVICE PERSONNEL KNOWINGLY ACCEPT ALL RISKS INHERENT WITH WIRELESS COMMUNICATIONS AND RELATED APPLICATION SOFTWARE AND UNDERSTAND THAT THE POTENTIAL RISK OF INJURY OR DEATH MAY OCCUR DUE TO A LOSS OF COMMUNICATIONS, AND NO USER SHOULD RELY ON A SINGLE METHOD, SERVICE AND/OR DEVICE FOR COMMUNICATIONS.

5. ADDITIONAL OBLIGATIONS OF THE PARTIES

5.1 CMS CUSTOMER SUPPORT. CMS shall support the CMS Products in accordance with the SLP set forth in Exhibit C.

5.2 THIRD PARTY PRODUCT SUPPORT. With respect to the Third Party Product, Customer acknowledges and agrees that CMS will obtain support  for the Third Party Product based on the Third Party Support. Further, Customer acknowledges and agrees that Third Party Support for hardware may not be covered by a warranty and that Customer may have to pay or reimburse Company for all costs of investigating and responding to a request for hardware support at CMS’ then prevailing time and materials rates.

5.3 EXPORT COMPLIANCE AND FOREIGN RESHIPMENT LIABILITY. Neither Party will, directly or indirectly, export or re- export, or knowingly permit the export or re-export of any Product to any country for which any export license or approval is required under the laws of the United States or any other country unless the appropriate export license or approval has first been obtained.

6. CONFIDENTIALITY

6.1  During the term of this Agreement and for a period of three (3) years after its termination or expiration, Customer  (the “Receiving Party”) will receive or have access to Confidential Information (as defined below) of CMS (the “Disclosing Party”) and the Receiving Party shall not use, other than in connection with the provision or receipt of the Products , or disclose to anyone, other than officers, employees or representatives of the Receiving Party with a need to know for purposes of this Agreement and who are subject to confidentiality obligations consistent with the terms of this Agreement (“Representatives”), any Confidential Information disclosed or made available to the Receiving Party by or on behalf of the Disclosing Party. The Receiving Party shall be deemed to have met its obligations hereunder if it treats the other Party’s Confidential Information with the same degree of care as it treats its own Confidential Information of like kind, but in no event less than reasonable care. At the written request of the Disclosing Party, the Receiving Party shall promptly return to the Disclosing Party or destroy the Disclosing Party’s Confidential Information in its possession or under its control.

6.2 For purposes of this Agreement, the term “Confidential Information” means all information, material and data provided by the Disclosing Party to the Receiving Party including without limitation, research, proprietary information, ideas, techniques, works of authorship, models, inventions, know-how, processes, algorithms, software programs and source documents, development, equipment, sales information, products, pricing information, trade secrets, business plans, financial information, technical information, marketing methods and plans, customers, operations and systems which is labeled or designated in writing as confidential or proprietary, or the Receiving Party is advised is proprietary or confidential. For the avoidance of doubt, Confidential Information includes the Product owned by such Disclosing Party.

6.3 Confidential Information shall not include information which the Receiving Party can demonstrate by competent evidence (i) was publicly known at the time it was communicated to the Receiving Party by the Disclosing Party, (ii) becomes publicly known without any fault of or participation by the Receiving Party or its Representatives, (iii) was in Receiving Party’s possession prior to the time it was received from Disclosing Party or came into Receiving Party’s possession thereafter, in each case lawfully obtained from a source other than Disclosing Party or its Representatives and which source is not known to the Receiving Party to be subject to any obligation of confidentiality or restriction on use, or (iv) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information that is required to be disclosed by judicial, arbitral or governmental order or process or operation of law, in which event the Receiving Party shall: (i) to the extent legally permitted, notify the Disclosing Party of any such disclosure requirement or request as soon as practical; (ii) cooperate with and reasonably assist the Disclosing Party (at the Disclosing Party’s cost) if the Disclosing Party seeks a protective order or other remedy in respect of any such disclosure; and (iii) furnish only that portion of the Confidential Information which, in the opinion of the Receiving Party’s legal counsel, is responsive to such requirement or request and seek confidential treatment for such information.

6.4 DTSA NOTICE: This Agreement does not affect any immunity provided under 18 USC Sections 1833(b) (1) or (2), which read as follows: (1) An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. (2) An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order. However, except as expressly set forth above, nothing in this provision shall be construed to authorize, or limit liability for, an act that is otherwise prohibited by law, such as the unlawful access of material by unauthorized means.

6.5 Any use or disclosure of the Disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the Disclosing Party irreparable damage for which remedies other than injunctive relief may be inadequate, and both Parties agree that the Disclosing Party may request injunctive or other equitable relief seeking to restrain such use or disclosure without the necessity of proving actual damages or posting a bond or other surety.

7. LIMITATION OF LIABILITY. CMS MAY USE ONE OR MORE SUBCONTRACTORS, SUPPLIERS, VENDORS OR LICENSORS (COLLECTIVELY, “SUPPLIERS”) TO PROVIDE MONITORING, COMMUNICATIONS, SIGNAL TRANSMISSION SERVICES OR OTHER SERVICES. TO THE EXTENT PERMITTED BY LAW, THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY TO THE WORK, PRODUCTS OR SERVICES THAT OUR SUPPLIERS PROVIDE, AND SHALL APPLY TO THEM AND PROTECT SUCH SUPPLIERS IN THE SAME MANNER AS IT APPLIES TO AND PROTECTS CMS. IN NO EVENT WILL CMS, ITS LICENSORS OR SUPPLIERS BE LIABLE TO CUSTOMER  FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE. EXCEPT FOR CMS’S OBLIGATIONS ARISING UNDER SECTION 8, UNDER NO CIRCUMSTANCES SHALL  TOTAL LIABILITY OF CMS, ITS LICENSORS OR SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED AN AGGREGATE SUM EQUAL TO THE FEES THAT CUSTOMER HAS PAID TO CMS DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR TEN THOUSAND DOLLARS ($10,000), WHICHEVER IS GREATER, AS THE AGREED UPON DAMAGES AND NOT AS A PENALTY. THE TOTAL AMOUNT PAYABLE BY CUSTOMER HEREUNDER. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL CMS, ITS LICENSORS OR SUPPLIERS BE LIABLE TO CUSTOMER FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR INJURIES, DAMAGES TO PROPERTY OR OTHER PERSONS, LOSS OF EMPLOYMENT OR WAGES, LOSS OF REPUTATION, SLANDER, LIBEL, EMBARRASSMENT, MENTAL OR EMOTIONAL DISTRESS, UNINTENDED OR ACCIDENTAL COPYRIGHT INFRINGEMENT BY CUSTOMER’S USE OF THE PRODUCTS, OR ANY OTHER MATTER, ARISING OUT OF OR RELATED TO CUSTOMER’S USE OR INABILITY TO USE THE PRODUCTS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF CMS, ITS LICENSORS OR SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. INTELLECTUAL PROPERTY INDEMNITY

        8.1.1 CMS agrees that it shall, at its own expense, defend, or at its option settle, any action instituted against Customer, and pay any award or damages assessed or settled upon against CUSTOMER resulting from such action, insofar as the same is based upon a claim that the CMS Product infringes any United States patent, copyright, trademark or trade secret or a claim that Customer has no right to license the CMS Product hereunder, provided that Customer gives CMS: (i) prompt notice in writing of such action, (ii) the right to control and direct the investigation, preparation, defense and settlement of the action; and (iii) reasonable assistance and information. Notwithstanding the foregoing, CMS shall have no liability under this Section 8 if the alleged infringement arises from (i) the use of the CMS Product in a manner not specified in the relevant user manual, (ii) use of other than the current unaltered release of the CMS Product, (iii) modification of the CMS Product by someone other than CMS or a third party authorized by CMS or (iv) the combination of the CMS Product with other equipment or software not provided by CMS, if such action would have been avoided but for such use or combination.

        8.1.2 The Party that intends to claim indemnification under this Section 8 hereof (the “Indemnitee”) shall (i) promptly notify the Party from whom it seeks indemnification (the “Indemnitor”) in writing of any claim, lawsuit, or other action in respect of which the Indemnitee intends to claim such indemnification; provided, however, that delay by an Indemnitee in giving Indemnitor prompt notice shall not relieve Indemnitor of its obligations hereunder except and only to the extent that such delay has prejudiced Indemnitor; (ii) reasonably cooperate in the defense or settlement of any such claim, demand or action; and (iii) give Indemnitor control of the defense, investigation, and/or settlement of the claim, demand or action for which indemnification is sought.   The Indemnitee shall permit the Indemnitor, at its reasonable discretion, to settle any such claim, lawsuit or other action and agrees to the complete control of such defense or settlement by the Indemnitor; provided, however, that such settlement does not adversely affect the Indemnitee’s rights hereunder or impose any obligations on the Indemnitee in addition to those set forth herein in order for it to exercise such rights.  In no event, however, will Indemnitor admit liability on behalf of Indemnitee without the prior written consent of Indemnitee.  Subject to the foregoing, however, Indemnitee, at its own expense, may participate, through its attorneys or otherwise, in the investigation and defense of any such claim, demand or action, and any appeal therefrom.

        8.1.3 OPTIONS. If, as a result of any binding settlement among the parties or a final determination by a court of competent jurisdiction, any of the Products, as the case maybe, is held to infringe and it use is enjoined, or the owner of such Product reasonably determines in its sole discretion that the Product may become subject to an injunction, the owner of the Product shall have the option to: (i) obtain the right to continue use of the Product; or (ii) replace or modify the Product so that it is no longer infringing.

8.2. EXCLUSIVE REMEDY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE FOREGOING STATES THE PARTIES’ ENTIRE LIABILITY AND EXCLUSIVE REMEDY FOR PROPRIETARY RIGHTS INFRINGEMENT.

9. TERM AND TERMINATION

9.1  TERM. The license rights granted hereunder shall be effective with respect to each Product Schedule as of the date thereof and shall continue in full force and effect for each Product for the period set forth on the applicable Product Schedule unless sooner terminated pursuant to the terms of this Agreement. The initial term of this Agreement shall be for 36 months (the “Initial Term”) from the Effective Date of this Agreement. Unless a Party provides written notice of its intent not to renew at the end of the Initial Term per Section 6, this Agreement will renew for a one (1) year term (each a “Renewal Term”) effective as of the first day of the new annual term.

9.2   TERMINATION. Either Party shall be entitled to terminate this Agreement at any time on written notice to the other in the event of a material default by the other party and a failure to cure such default within a period of thirty (30) days following receipt of written notice specifying that a default has occurred.

9.3  INSOLVENCY. Upon (i) the institution of any proceedings by or against either party seeking relief, reorganization or arrangement under any laws relating to insolvency, which proceeding are not dismissed within sixty (60) days; (ii) the assignment for the benefit of creditors, or the appointment of a receiver, liquidator or trustee, of any of either party’s property or assets; or (iii) the liquidation, dissolution or winding up of either party’s business; then and in any such events this Agreement may immediately be terminated by the other party upon written notice.

 9.4 TERMINATION FOR CONVENIENCE. CMS may terminate this Agreement or any Product Schedule , with or without cause, upon providing sixty (60) days advance written  notice to Customer. In the event that an individual Product Schedule is terminated, such termination shall only apply to  such Product Schedule without terminating any other Product Schedules in place or this Agreement.  In the event that this Agreement is terminated, all Product Schedules applying to this Agreement shall be automatically terminated.

9.5   EFFECT OF TERMINATION. Upon the expiration or termination of this Agreement or  a particular Product Schedule, all licenses granted herein are immediately revoked and Customer shall cease using the Products. Any expiration or termination shall not discharge any obligation to pay Fees which have accrued or are owing as of the effective date of such expiration or termination.

10. MISCELLANEOUS PROVISIONS

10.1 ASSIGNMENTS. Neither Party may assign its rights or delegate its obligations under this Agreement without the other Party’s prior written consent, and, absent such consent, any purported assignment or delegation shall be null, void and of no effect; provided, however, that CMS, upon written notification to Customer, may assign this Agreement in connection with any merger, consolidation, corporate restructuring, sale of any substantial portion of its assets, or any transaction in which fifty percent (50%) of its voting securities are transferred. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of CMS and Customer and their respective permitted successors and assigns.

10.2 FORCE MAJEURE. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to CMS hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the control of the impacted Party (“Impacted Party”), including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; (i) pandemics or epidemics; and (j) other events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within thirty (30) days of the Force Majeure Event to the other Party,  stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.

10.3 ENTIRE AGREEMENT. This Agreement, together with any schedules, appendices, and other attachments thereto, contains the entire understanding of the parties and supersedes previous verbal and written agreements between the parties concerning the subject matter herein.

10.4 ORDER OF PRECEDENCE. In the event of any conflict or ambiguity between a provision in this Agreement and in an Exhibit that cannot reasonably be reconciled, the provision in this Agreement will govern unless such provision expressly provides otherwise or the Exhibit clearly intends to override the related provision in this Agreement, in which case such provision in the Exhibit shall apply but only with respect to that Exhibit.

10.5 AMENDMENTS AND MODIFICATIONS AND SEVERABILITY. CMS may amend the Third Party Product section of Schedule A at any time in its sole discretion. If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect.

10.6 GENERAL.  The headings and captions of this Agreement are inserted for reference convenience and do not define, limit, or describe the scope or intent of this Agreement or any particular section, paragraph or provision. Pronouns and nouns shall refer to the masculine, feminine, neuter, singular or plural as the context shall require.

10.7 CONTRACTUAL LIMITATION OF ACTIONS. All claims, actions or proceedings, legal or equitable, against CMS must be limited to breach of this Agreement and commenced in court within one (1) year after the cause of action has accrued or the act, omission or event occurred from which the claim, action or proceeding arises, whichever is earlier, without judicial extension of time, or said claim, action or proceeding is barred, time being of the essence.

10.8 GOVERNING LAW. This Agreement shall be governed by the laws of the State of Connecticut without regard to any rules of conflict or choice of laws that require the application of laws of another jurisdiction, and venue shall be Hartford, Connecticut, United States.

10.9 NOTICE. Notices shall be in writing and shall be deemed delivered when delivered by commercial next business day delivery service, Certified or Registered Mail – Return Receipt Requested or by hand to CMS or to Customer at the addresses set forth in the Product Schedule or at such other address designated in a subsequent notice or in the beginning of this Agreement. Notices shall be deemed given on the date of receipt – as evidenced in the case of Certified or Registered Mail by Return Receipt.

10.10 WAIVER. Waiver of breach of this Agreement shall not constitute waiver of another breach. Failing to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the Party waiving such provision.

10.11 RELATIONSHIP OF THE PARTIES. Nothing herein shall be construed as creating a partnership, an employment relationship, or an agency relationship between the Parties, or as authorizing either Party to function as agent for the other. Each Party shall maintain its separate identity.

10.12 ARBITRATION. The Parties agree that for disputes between the Parties, the aggrieved Party will provide a written dispute notice to the other party explaining the nature of the dispute and the specific Sections hereof that apply. The Parties will first attempt to resolve the dispute by formal negotiations between executives of each Party who have the authority to resolve the dispute. If negotiations do not to resolve the dispute after 30 days from receipt of the written dispute notice, the Parties agree to resolve the dispute using binding Arbitration. Such Arbitration shall be conducted in Hartford, Connecticut by a single qualified Arbitrator promptly chosen by the Parties after mediation is complete, who shall render a decision within 30 days from the start of the Arbitration based on the relevant facts and the terms of this Agreement and applicable law and judicial precedent and render a written opinion on same. Such decision shall be final and binding as between the Parties and judgement  on any award rendered by the Arbitrator may be entered in any court having jurisdiction thereof. The Arbitration shall be administered by an agency mutually agreeable to both Parties. Each Party shall have the right of discovery as set forth in the Federal Rules of Civil Procedure.

10.13 Notwithstanding Section 10.12, violation of Section 8 by Customer shall entitle CMS Party, at its option, to obtain from a court of law either injunctive relief or specific performance of the obligations described in such Section without a showing of irreparable harm or injury and without bond.

10.15  Survival: No termination of this Agreement shall affect the rights or obligations of either party with respect to payment or with respect to other provisions of this Agreement that, by their sense and context, are intended to survive termination of this Agreement, including without limitation, Sections 4, 6, 7, 8, 9.5, 10.7, 10.8, 10.12, and 10. 13.