Field Squared Terms of Service Agreement

Updated January 15, 2017

Effective July 31, 2015

This Field Squared Terms Of Service Agreement (the “Agreement”) is between Field Squared Inc. a Delaware Corporation (“Field Squared”) and the organization or individual agreeing to these terms (the “Customer”). By (1) signing into the Field Squared API and services (“Services”) or the Field Squared mobile or desktop client applications (“Apps”) – together known as “the Software”; or (2) by entering into contracts for use of Services or Apps by filling out an order form online or on paper; or (3) by clicking “I Agree” to approve of these terms within the Apps; you agree to this Agreement as a Customer.  If you are agreeing to this Agreement for the use of the Services or Apps by an organization, you are agreeing to this Agreement on behalf of the corporation and you must have the authority to bind that organization to this Agreement.

1. Services.

(a) Services. Each Customer will be given one shared work area (“Workspace”) to use with their Field Squared account, which will contain the organization’s data and which will be used by all users of the Customer’s account (“End Users”). Customers and their End Users may access the Services in accordance with this Agreement.

(b) Data Processing. Field Squared will use, at a minimum, industry standard encryption, technical and organizational 
security measures to transfer, store and process Workspace Data, in a way manner designed to protect the integrity and privacy of Workspace Data and guard against unlawful or unauthorized access or use. “Workspace Data” means all Document Data, user accounts, contact information, location data, asset information, configuration and history data. “Document Data” means all structured data submitted by End Users through the Apps and the customized forms created by Field Squared for Customer.

(c) Modification of Services. Field Squared may update the Services and Apps from time to time. If there is a material reduction in the functionality of the Services or Apps as part of an update, Field Squared will notify the customer in advance by sending an email to the administrative email address associated with the Workspace.

(d) Grant of Use License. Customers may download and use the software and Apps created by Field Squared for accessing the Services provided by Field Squared. The Apps may update automatically from time to time and the customer acknowledges that functionality will change over time. Customer may use the Apps only to access the Services provided by Field Squared. Any open source licenses that are embedded into the Software will be made available to Customer to inspect if requested by the Customer, and any provisions of those licenses may supersede provisions of this Agreement.

2. Customer Obligations.

(a) Compliance. Customer is responsible for the use of the Services and their Workspace by its End Users. Customer 
and its End Users must use the Software in compliance with the Acceptable Use Policy. Customer will obtain from End Users any consents necessary to allow Administrators to engage in the activities described in this Agreement and to allow Field Squared to provide the Services and Apps to End Users. Customer will comply with all laws and regulations that may govern the Customer’s use of Services like Field Squared, if any.

(b) Administration by Customer. Customer may specify End Users as “Subscription Administrators” by requesting them to be setup as such with Field Squared technical support. Subscription Administrators can create, manage, restrict and delete End User accounts within a Workspace as well as manage passwords for End User accounts. They can also permanently delete records and Workspace Data from the Services and change the way the Services and Apps behave. Field Squared’s responsibilities do not extend to the internal management or administration of the Services. Customer is solely responsible for: (i) maintaining the confidentiality of passwords and Subscription Administrator accounts, (ii) managing access to Subscription Administrator accounts; and (iii) ensuring that the Subscription Administrator complies with the use of the Software as described in this Agreement.

(c) Unauthorized Use & Access. Customer will prevent unauthorized use of the Software by its End Users and will terminate any unauthorized use or of access to the Services. The Services and Apps are not intended for use by persons under the age of 15 years of age. Customer will promptly notify Field Squared of any unauthorized use of the Software (for example on the same day they become aware of such use).

(d) Restricted Uses. Customer will not (i) sell, resell, or lease the Services; (ii) use the Services or Apps for activities where use or failure of the Services could lead to physical damage, death, or personal injury; (iii) use the Apps while actively in control of a motor vehicle of any kind; or (iv) reverse engineer the Services or Apps, not attempt nor assist anyone else to do so, unless this restriction is prohibited by law.

(e) Third Party Requests.
i. “Third Party Request” means a request from a third party for records relating to an End User’s use of the Software including information in or from an End User or Customer’s Services account. Third Party Requests may include valid search warrants, court orders, or subpoenas, or any other request for which there is written consent from End Users permitting a disclosure.
ii. Customer is responsible for responding to Third Party Requests via its own access to information. 
Customer will seek to obtain information required to respond to Third Party Requests and will contact 
Field Squared only if it cannot obtain such information despite diligent efforts.
iii. Field Squared will make commercially reasonable efforts, to the extent allowed by law and by the terms of 
the Third Party Request, to: (a) promptly notify Customer of Field Squared’s receipt of a Third Party Request; (b) comply with Customer’s commercially reasonable requests regarding its efforts to oppose a Third Party Request; and (c) provide Customer with information or tools required for Customer to respond to the Third Party Request (if Customer is otherwise unable to obtain the information). If Customer fails to promptly respond to any Third Party Request, then Field Squared may, but will not be obligated to do so.

3. Third-Party Services.

(a) Third Party API Usage. If Customer uses any third-party service to connect to the Field Squared API to download or upload data into the Field Squared platform, or perform any other action within the platform using the Field Squared API and Services, then (a) Field Squared will not be responsible for any act or omission of the third party, including the third party’s mishandling of the Field Squared data or services, or any loss of any kind, including data loss or otherwise, with respect to the third party services and (b) Field Squared does not warrant or support any services provided by the third party.

(b) Third Party Integrations by Field Squared. Field Squared can connect to various other cloud based API’s, databases and services at runtime to provide integrations on behalf of customers. (a) These services and systems are maintained by third parties and Field Squared does not warrant or support any of these other systems directly – the Customer assumes all responsibility for maintaining these third party systems and for any defects that occur within these systems whether they are in-house or cloud based services. (b)(i) If Customer or a system integrator or any other party acting on behalf of Customer has configured Field Squared to connect to these third party systems and as a result of this configuration they create errors in data or lose data as a result of their work, the Field Squared will not be held responsible for these actions.  (b)(ii) If Field Squared has configured the Integration on behalf of Customer, then Field Squared will be responsible for fixing any errors created by this work performed by Field Squared, but will not be held liable for any other losses of Customer except as related to fixing the data in question. (c) Field Squared warrants that it will use industry standard encryption and data handling methods to interact with these systems, and that it will handle all data in a professional manner that a reasonable IT professional would assume would be applied to integrations of this kind, and that the data of Customer will remain confidential to Customer using the best reasonable efforts of Field Squared. (d) Field Squared will fix at Field Squared’s own cost any data that is damaged as a direct result of a defect that occurs in the Field Squared integration with this API, but will not be responsible for any data loss not caused by its API directly. (e) Field Squared reserves the right to use the API of third party services directly, or to use other intermediaries to connect to third party services where Field Squared deems it appropriate.  If Field Squared does use an intermediary, then Field Squared (i) warrants that it has extensively vetted the intermediary company and their API’s and has the appropriate contracts, client data confidentiality and non-disclosure agreements in place with the intermediary (ii) will fix any data problems caused by defects in the third party intermediary’s systems using the same provisions as section 3(d) as if the API integration was performed by Field Squared directly.

(c) Third Party Add-On Services. Where Field Squared uses third party services to provide features related to routing, driving directions, mapping or weather services, then Field Squared (a) will use any data provider or services provider of its choosing at the sole discretion of Field Squared; (b) can change service providers at any time; (c) is not responsible for the accuracy of this data.  Field Squared provide these services at a significant discount to the customer and the pricing of Field Squared does not reflect providing direct warranties for these services to End Users of Customer.

4. Suspension.

(a) Of End User Accounts by Field Squared. If an End User (i) violates this Agreement or (ii) uses the Services in a 
manner that Field Squared reasonably believes will cause it liability, then Field Squared may request that Customer suspend or terminate the applicable End User account. If Customer fails to promptly (for example, within a day or two) suspend or terminate the End User account, then Field Squared may do so.

(b) Security Emergencies. Notwithstanding anything in this Agreement, if there is a Security Emergency then Field Squared may automatically suspend use of the Services. Field Squared will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. “Security Emergency” means: (i) use of the Services that do or could disrupt the Services, other customers’ use of the Services or Apps, or the infrastructure used to provide the Services and (ii) unauthorized third-party access to the Services or to specific Workspace Data

5. Intellectual Property Rights.

(a) Reservation of Rights. Except as expressly set forth herein, this Agreement does not grant (i) Field Squared any 
Intellectual Property Rights in Customer’s Workspace Data or (ii) Customer any Intellectual Property Rights in the Services, Apps or Field Squared trademarks and brand features. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.

(b) Limited Permission. Customer grants Field Squared only the limited rights that are reasonably necessary for Field Squared to offer the Services (e.g. hosting Workspace Data and Document Data). This permission also extends to trusted third parties Field Squared works with to offer the Services (e.g. sending emails to End User’s customers via the SendGrid services).

(c) Suggestions. Field Squared may, at its discretion and for any purpose, use, modify, and incorporate into its products and services, license and sublicense, any feedback, comments, or suggestions Customer or End Users send Field Squared or post in Field Squared ‘s forums without any obligation to Customer.

(d) Customer List. Field Squared may include Customer’s name in a list of Field Squared customers on the Field Squared website or in promotional materials.

6. Fees & Payment.

(a) Fees. Customer will pay, and authorizes Field Squared to charge using Customer’s selected payment method, for all 
applicable fees. Fees are non-refundable except as required by law. Customer is responsible for providing complete and accurate billing and contact information to Field Squared. Field Squared may suspend or terminate the Services if fees are past due. Fees are due periodically (quarterly, semi-annually or annually) and Customer must nominate the “Payment Period” under which they will be billed. Customer may negotiate a contract for the services for a length of time that is greater than 1 year in return for discounts, and then setup a payment plan on a case by case basis to pay in payment installments that are shorter than the contract period but no less than 3 months.

(b) Auto Renewals and Trials. CUSTOMER’S ACCOUNT WILL BE SET TO AUTO RENEWAL and Customer authorizes Field Squared to automatically process a payment for the next Payment Period when fees are due UNLESS (1) CUSTOMER NOTIFIES FIELD SQUARED IN WRITING OR EMAIL PRIOR TO THE END OF THE PAYMENT PERIOD THAT CUSTOMER WANTS TO CANCEL THE SERVICE; or (2) DOWNGRADES SERVICES TO A LOWER NUMBER OF AUTHORIZED USERS IN WRITING OR EMAIL (whereupon Field Squared will disable user accounts of Customer to bring customer total active account numbers in line with the number of accounts actually paid for).

(c) Terms. Field Squared may revise service rates by providing Customer at least 30 days notice prior to the next charge. Field Squared may vary these terms of service at any time by posting new terms of service online. Changes to privacy and data collection terms and policies must be communicated to Customer in writing with at least 30 days written notice.  Customer may elect to negotiation a Master Services Agreement with Field Squared in order to lock in set terms for the life of the contact, and such executed master services agreements will supercede the terms of this agreement.

(d) Taxes. Customer is responsible for all taxes. Field Squared will charge tax when required to do so. If Customer is required by law to withhold any taxes, Customer must provide Field Squared with an official tax receipt or other appropriate documentation.

(e) Refunds. Field Squared may provide refunds and account credits where it deems in its sole discretion it is appropriate. Customer is not entitled to refunds for fees paid within a Payment Period unless Field Squared is in material breach of this agreement, then only the unused portion of the fees will be refundable to the Customer.

(f) Purchase Orders. If Customer requires the use of a purchase order or purchase order number, Customer (i) must provide the purchase order number at the time of purchase and (ii) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void.

7. Term & Termination

(a) Term. This Agreement will remain in effect until Customer’s subscription to the Services expires or terminates, or 
until the Agreement is terminated. Customer may terminate this agreement without cause at the end of each 
Payment Period.

(b) Termination for Breach. Either Field Squared or Customer may terminate this Agreement if: (i) the other party is in 
material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.

(c) Effects of Termination. If this Agreement terminates: (i) the rights granted by Field Squared to Customer will cease immediately (except as set forth in this section); (ii) Field Squared may provide Customer access to its account at then-current fees so that Customer may export its Workspace Data; and (iii) after a commercially reasonable period of time, Field Squared may delete any Stored Data relating to Customer’s account.

(d) Survivability: The following sections will survive expiration or termination of this Agreement: 2.e (Third Party Requests), 5 (Intellectual Property Rights), 6 (Fees & Payment), a (Effects of Termination), 8 (Indemnification), 9 (Disclaimers), 10 (Limitation of Liability), 11 (Disputes), and 12 (Miscellaneous).

8. Indemnification

(a) By Customer. Customer will indemnify, defend, and hold harmless Field Squared from and against all liabilities, 
damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Field Squared and its affiliates regarding: (i) Workspace Data; (ii) Customer’s use of the Services or Apps in violation of this Agreement; or (iii) End Users’ use of the Services or Apps in violation of this Agreement.

(b) By Field Squared. Field Squared will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Customer to the extent based on an allegation that Field Squared’s technology used to provide the Services and Apps to the Customer infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will Field Squared have any obligations or liability under this section arising from: (i) use of any Services or Apps in a modified form or in combination with materials not furnished by Field Squared and (ii) any content, information, or data provided by Customer, End Users, or other third parties.

(c) Possible Infringement. If Field Squared believes the Services infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then Field Squared may: (i) obtain the right for Customer, at Field Squared’s expense, to continue using the Services and Apps; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe. If Field Squared does not believe the options described in this section are commercially reasonable then Field Squared may suspend or terminate Customer’s use of the affected Services (with a pro-rata refund of prepaid fees for the Services).

(d) General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed and (ii) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE FIELD SQUARED AND CUSTOMER’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

9. Disclaimers. THE SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER CUSTOMER NOR FIELD SQUARED AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT. CUSTOMER IS RESPONSIBLE FOR MAINTAINING AND BACKING UP ANY WORKSPACE DATA.

10. Limitation of Liability

(a) Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR FIELD SQUARED OR 
CUSTOMER’S INDEMNIFICATION OBLIGATIONS, NEITHER CUSTOMER NOR FIELD SQUARED AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

(b) Limitation on Amount of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, FIELD SQUARED’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF $100,000 OR THE AMOUNT ACTUALLY PAID
BY CUSTOMER TO FIELD SQUARED HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE
TO LIABILITY.

11. Disputes

(a) Informal Resolution. Field Squared wants to address your concerns without resorting to a formal legal case. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through the notice procedures in section 12(e). If a dispute is not resolved within 30 days of notice, Customer or Field Squared may bring a formal proceeding.

(b) Agreement to Arbitrate. Customer and Field Squared agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in Denver (CO), or any other location both parties agree to in writing. Each party pays their own arbitration fees.

(c) Exception to Agreement to Arbitrate. Either party may bring a lawsuit in the federal or state courts of Denver County, Colorado solely for injunctive relief to stop unauthorized use or abuse of the Services or infringement of Intellectual Property Rights without first engaging in the informal dispute notice process described above. Both Customer and Field Squared consent to venue and personal jurisdiction there.

(d) NO CLASS ACTIONS. Customer may only resolve disputes with Field Squared on an individual basis and will not bring a claim in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.

12. Miscellaneous

(a) Terms Modification. Field Squared may revise this Agreement from time to time and the most current version will 
always be posted on the Field Squared website. If a revision, in Field Squared’s sole discretion, is material, Field Squared will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to Field Squared’s blog or terms page, and Customer is responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Services within 30 days of receiving notice of the change.

(b) Entire Agreement. This Agreement, including Customer’s invoice and order form, constitutes the entire agreement between Customer and Field Squared with respect to the subject matter of this Agreement and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the invoice, the order form, the Agreement.

(c) Governing Law. THE AGREEMENT WILL BE GOVERNED BY COLORADO LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES.

(d) Severability. Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.

(e) Notice. Notices must be sent via first class, airmail, or overnight courier and are deemed given when received. 
Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. 
Notices to Field Squared must be sent to Field Squared Inc., 1514 Blake St, Suite 200, Denver CO 80202.

(f) Waiver. A waiver of any default is not a waiver of any subsequent default.

(g) Assignment. Customer may not assign or transfer this Agreement or any rights or obligations under this 
Agreement without the written consent of Field Squared. Field Squared may not assign this Agreement without providing notice to Customer, except Field Squared may assign this Agreement or any rights or obligations under this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, initial public offering or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.

(h) No Agency. Field Squared and Customer are not legal partners or agents, but are independent contractors.

(i) Force Majeure. Except for payment obligations, neither Field Squared nor Customer will be liable for inadequate 
performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, 
natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).

(j) No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Without limiting this section, a Customer’s End Users are not third-party beneficiaries to Customer’s rights under this Agreement.

(k) Export Restrictions. The export and re-export of Customer Data via the Services may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The Services may not be used in Cuba; Iran; North Korea; Sudan; or Syria or any country that is subject to an embargo by the United States and Customer must not use the Services in violation of any export restriction or embargo by the United States or any other applicable jurisdiction. In addition, Customer must ensure that the Services are not provided to persons on the United States Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.