TERMS AND CONDITIONS

By using the Services of Smart Pro Technologies, LLC (“Smart Pro”), you agree to the terms and conditions set forth herein (the “Terms”) which are incorporated into and made a part of the Agreement. Capitalized terms used but not defined herein shall have the respective meanings given to them in Customer’s Master Services Agreement with Smart Pro.

1. Confidentiality.

1.1       Confidential Information. For all intents and purposes of the Agreement, “Confidential Information” shall mean and include any data or information that is deemed proprietary to the Disclosing Party and that which is not generally known to the public, whether in tangible or intangible form, whenever and however disclosed, including, but not limited to, (i) any form of marketing plan, strategies financial information or projections, operations, sales quotes or estimates, business plans, performance results which may be related to the past, present and/or future business activities of said Party, its subsidiaries and affiliated companies; (ii) plans for products or services, and customer or supplier lists; (iii) any scientific, technical or data information, invention, design process, procedure, formula, improvement, technology or method; (iv) any concepts, reports, data, knowledge, works-in-progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets, trademarks and copyrights; and (v) any other information that should reasonably be recognized as confidential information of the Disclosing Party. Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret to be designated Confidential Information. The Receiving Party acknowledges that the Confidential Information is proprietary to the Disclosing Party, has been developed and obtained through significant efforts by the Disclosing Party and, as such, the Disclosing Party regards all its Confidential Information as trade secrets. For purposes of this Section and the Agreement, the Party disclosing information shall be the “Disclosing Party.” The Party receiving information shall be the “Receiving Party.”

Notwithstanding anything in the foregoing statement to the contrary, Confidential Information shall not include any such information which: (i) was known by the Receiving Party prior to receiving the Confidential Information from the Disclosing Party; (ii) becomes rightfully known to the Receiving Party from a third party source not known, after diligent inquiry, by the Receiving Party to be under an obligation to the Disclosing Party to maintain confidentiality; (iii) is or shall become publicly available through no fault or failure to act by the Receiving Party in breach of the Agreement; (iv) is required to be disclosed in a judicial or administrative proceeding, or is otherwise requested or required to be disclosed by law or regulation, although the requirements of Section 1.4 shall apply prior to any disclosure being made; (v) is or has been independently developed by employees, consultants or agents of the Receiving Party without violation of the herein contained terms and conditions of this Agreement or reference or access to any Confidential Information; and (vi) information the Disclosing Party shares with others in a non-confidential setting.

1.2       Confidential Information Disclosure. The Disclosing Party may deem it necessary, from time to time, to disclose or make available to the Receiving Party Confidential Information. It shall then become the responsibility of the Receiving Party to: (i) limit the disclosure of any Confidential Information belonging to the Disclosing Party to the Receiving Party’s directors, officers, employees, agents or representatives (collectively herein referred to as “Representatives“) who have a need to know such Confidential Information in relation to the Agreement, and only for that purpose; (ii) advise its Representatives of the proprietary nature of the Confidential Information and of the obligations set forth herein and require such Representatives to keep the Confidential Information confidential; (iii) keep all Confidential Information strictly confidential by way of exercising a reasonable degree of care, but not less than the degree of care that the Receiving Party would exercise in safeguarding its own Confidential Information; and (iv) not disclose any Confidential Information received to any third parties, unless otherwise provided for herein. Each Party shall be responsible for any breach of this Section 1 and the Agreement by any of its Representatives.

1.3       Confidential Information Usage. The Receiving Party agrees to make use of the Confidential Information solely for the purpose and in connection with the rights and obligations in the Agreement, unless otherwise authorized by prior written consent by an authorized representative of the Disclosing Party. There shall be no other right or license, whether expressed or implied, in the Confidential Information granted to the Receiving Party hereunder. Ownership and title to the Confidential Information shall remain solely with the Disclosing Party, all use of the Confidential Information by the Receiving Party shall be solely for the benefit of the Disclosing Party, and any type or manner of improvements or modifications thereof by the Receiving Party shall remain the sole property of the Disclosing Party.

1.4       Compelled Disclosure of Confidential Information. Notwithstanding anything in the foregoing clauses to the contrary, the Receiving Party may be compelled to disclose Confidential Information pursuant to any governmental, judicial, or administrative order, subpoena, discovery request, regulatory request or similar method. In the event of such compelled disclosure, the Receiving Party shall promptly notify, to the extent not legally prohibited, the Disclosing Party in writing of any such demand for disclosure so that the Disclosing Party, at its sole expense, may seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information; provided in the case of a broad regulatory request with respect to the Receiving Party’s business (not targeted at Disclosing Party), the Receiving Party may promptly comply with such request provided the Receiving Party provides (if permitted by such regulator) the Disclosing Party prompt notice of such disclosure. The Receiving Party agrees that it shall not oppose and shall cooperate with efforts by, to the extent feasible, the Disclosing Party with any such request for a protective order or other relief. Notwithstanding the foregoing, if the Disclosing Party is unable to obtain or does not seek a protective order and the Receiving Party is legally required to disclose such Confidential Information, disclosure of such Confidential Information may be made without liability.

1.5       Independent Development. Receiving Party may currently or in the future be developing information internally, or receiving information internally, or receiving information from other parties that may be like the Disclosing Party’s Confidential Information. Accordingly, nothing in the Agreement will be construed as a representation or inference that Receiving Party will not develop or have developed products or services, that, without violation of the Agreement, might compete with the products or systems contemplated by the Disclosing Party’s Confidential Information.

1.6       No Warranty. All Confidential Information is provided by Disclosing Party “AS IS” and without any warranty, express, implied, or otherwise, regarding the Confidential Information’s completeness, accuracy, or performance.

1.7       Remedies. The Parties acknowledge and agree that the Confidential Information is of a unique and valuable nature, and that the unauthorized distribution or broadcasting of the Confidential Information could have the potential to destroy and, at the very least, diminish the value of such information. The damages that the Disclosing Party could sustain as a direct result of the unauthorized dissemination of the Confidential Information would be impossible to calculate. Therefore, the Parties hereby agree that the Disclosing Party shall be entitled to claim injunctive relief that would prevent the dissemination of any Confidential Information that would be in violation of this Section 1. Any such injunctive relief provided shall be in addition to any other available remedies in the Agreement, whether at law or in equity. The Disclosing Party shall be entitled to recover any costs and/or fees, including attorneys’ fees and litigation expenses, incurred to enforce this Section 1.

1.8       Return of Confidential Information. Upon completion/expiration or termination of the Agreement, the Receiving Party shall immediately return and deliver to the Disclosing Party all tangible material and/or information representing or exemplifying the Confidential Information provided hereunder and all notes, summaries, memoranda, drawings, manuals, records, excerpts or derivative information deriving therefrom and all other documents, materials, or copies which may have been converted to any computerized media in the form of any image, data or word processing files either manually or by image capture or any other form of work product that may be based on or include any Confidential Information, in whatever form of storage or retrieval, upon the earlier of (i) the completion or termination of the Agreement or applicable Statement of Work or (ii) at such time as the Disclosing Party may so request; provided however that the Receiving Party may retain such of its documents as is necessary to enable it to comply with its document retention policies. Alternatively, with the prior written consent of the Disclosing Party, the Receiving Party may immediately destroy the Confidential Information (or the non-recoverable data erasure of computerized data) and, upon request, certify in writing such destruction by an authorized officer of the Receiving Party supervising the destruction of the Confidential Information.

1.9       Notice of Breach. The Receiving Party shall immediately notify the Disclosing Party upon discovering any unauthorized use or disclosure of Confidential Information by the Receiving Party or its Representatives and will cooperate with any efforts by the Disclosing Party to assist the Disclosing Party to regain the possession of its Confidential Information to prevent its further unauthorized use or disclosure.

1.10     Survival. The rights and obligations of the Parties set forth in this Section 1 shall survive termination or expiration of the Agreement and shall continue in effect for two (2) years thereafter, provided that with respect to Confidential Information that constitutes a trade secret, the rights and obligations contained herein shall survive such expiration or termination until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of the Receiving Party or its Representatives.

2. Limitation of Liability.

2.1       IN NO EVENT SHALL SMART PRO BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SMART PRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

2.2       IN NO EVENT SHALL SMART PRO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SMART PRO PURSUANT TO THE APPLICABLE STATEMENT OF WORK IN THE TWO (2) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

3. Indemnity.

3.1       CUSTOMER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS SMART PRO, AND ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, AND SUBCONTRACTORS (COLLECTIVELY, THE “SMART PRO INDEMNIFIED PARTIES”), FROM AND AGAINST ANY THIRD-PARTY CLAIM, LAWSUIT, INVESTIGATION, LOSS, PENALTY, DAMAGE, EXPENSE, CAUSE OF ACTION, SUIT, JUDGMENT, OR LIABILITY, INCLUDING ALL REASONABLE COSTS AND EXPENSES OF LITIGATION INCLUDING, WITHOUT LIMITATION, COURT COSTS AND ATTORNEYS’ FEES (THE “CLAIMS”), TO THE EXTENT DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATED IN ANY WAY TO THE AGREEMENT, OR CUSTOMER’S USE OF THE SERVICES OR DELIVERABLES, OR OTHERWISE ARISING OUT OF THE USE OF EQUIPMENT PROVIDED BY SMART PRO; PROVIDED, HOWEVER, THAT CUSTOMER SHALL NOT BE OBLIGATED TO INDEMNIFY SMART PRO FOR ANY CLAIMS TO THE EXTENT RESULTING FROM THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF SMART PRO.

3.2       SMART PRO SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS CUSTOMER, AND ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, AND SUBCONTRACTORS (COLLECTIVELY, THE “CUSTOMER INDEMNIFIED PARTIES”) FROM AND AGAINST ANY THIRD-PARTY CLAIMS, TO THE EXTENT SUCH CLAIMS DIRECTLY OR INDIRECTLY ARISE OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SMART PRO IN THE PROVISION OF THE SERVICES.

3.3       If any third-party claim is commenced against an indemnified party, Notice thereof shall be given to the indemnifying party as promptly as practicable. If, after such Notice, the indemnifying party so elects in a Notice promptly delivered to the indemnified party, but in no event less than fifteen (15) days after the Notice is received, the indemnifying party shall immediately take control of the defense and investigation of such claim and employ and engage attorneys reasonably acceptable to the indemnified party to handle and defend the same, all at the indemnifying party’s sole cost and expense. The indemnified party shall cooperate in all respects with the indemnifying party and its attorneys in the investigation, trial, and defense of such Claim and any appeal arising therefrom; provided however, that the indemnified party may, at its own cost and expense, participate through its attorneys or otherwise in such investigation, trial, and defense of such Claim and any appeal arising therefrom. No settlement of a Claim that (i) involves an admission of fault by the indemnified party, (ii) imposes on the indemnified party any obligations to take any affirmative actions, (iii) restricts the indemnified party’s actions, or (iv) includes a remedy applicable to the indemnified party shall be entered into without the written consent of the indemnified party. If the indemnifying party does not assume full control over the defense of a Claim as provided in this Section 3, the indemnified party shall have the right to defend the Claim in such manner as it may deem appropriate, at the sole cost and expense of the indemnifying party.

4. Entire Agreement. The Agreement, including and together with these Terms and any related Statements of Work, exhibits, schedules, supplements, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. The Parties acknowledge and agree that if there is any conflict between these Terms and the Agreement or any Statement of Work, these Terms shall supersede and control.
5. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under the Agreement (each, a “Notice“) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided herein, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 5.

Notice to Customer:	Customer address as stated in the Master Services Agreement, which may be modified upon prior notice to Smart Pro in accordance with this Section.
	Attention: Customer Contract Manager
Notice to Smart Pro:	9660 Legler Rd, Lenexa, KS 66219
	Attention: Smart Pro Contract Manager

6. Severability. If any term or provision of the Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement, or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify the Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
7. Amendments. No amendment to or modification of or rescission, termination, or discharge of the Agreement is effective unless it is in writing and signed by an authorized representative of Smart Pro and the Customer Contract Manager. Smart Pro reserves the right to update these Terms at any time by making the same available to Customer with a new Terms and Conditions Effective Date shown.
8. Waiver. No waiver by any Party of any of the provisions of the Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from the Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
9. Assignment. Customer shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Smart Pro. Any purported assignment or delegation in violation of this Section 9 shall be null and void. No assignment or delegation shall relieve Customer of any of its obligations under the Agreement. Smart Pro may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Smart Pro’s assets without Customer’s consent.
10. Successors and Assigns. The Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and assigns.
11. Relationship of the Parties. The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by Smart Pro shall be under its own control, Customer being interested only in the results thereof. The Smart Pro shall be solely responsible for supervising, controlling, and directing the details and manner of the completion of the Services. Nothing in the Agreement shall give Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. The Services must meet Customer’s final approval and shall be subject to Customer’s general right of inspection throughout the performance of the Services and to secure satisfactory final completion. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
12. No Third-Party Beneficiaries. Subject to the next paragraph, the Agreement benefits solely the Parties and their respective permitted successors and assigns and nothing in the Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.

The Parties hereby designate the Smart Pro Indemnified Parties and the Customer Indemnified Parties as third-party beneficiaries of Section 3 of these Terms, having the right to enforce Section 3.

13. Choice of Law. The Agreement and all related documents, and all matters arising out of or relating to the Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of Kansas, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Kansas.
14. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to the Agreement, including all exhibits, schedules, attachments, and appendices attached to the Agreement, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the United States District Court for the District of Kansas in Kansas City, Kansas or, if such court does not have jurisdiction, the courts of the State of Kansas, and any appellate court from any thereof. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
15. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THE AGREEMENT, INCLUDING STATEMENTS OF WORK, EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THE AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT, INCLUDING ANY STATEMENTS OF WORK, EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THE AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED THEREBY.
16. Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement (except for any obligations of the Customer to make payments to Smart Pro), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party“) reasonable control, 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 the 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; and (i) other similar events beyond the reasonable control of the Impacted Party.

The Impacted Party shall give notice within two (2) 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. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it, the other Party may thereafter terminate impacted Statements of Work upon thirty (30) days’ written notice.

Terms and Conditions Effective Date: August 21, 2024