Effective Date: February 1, 2024

    Partner shall pay to BTP Automation the Fees as set forth in the applicable SOW. Except as otherwise provided in such SOW, all Fees shall be non-cancelable and nonrefundable. The Customer shall not be relieved of its obligation to pay Fees owed to BTP Automation by the nonpayment of fees owed by any Client to the Customer.

2.1 Except as otherwise set forth herein, all fees shall be due within 10 days from invoice date. In the event that Customer disputes all or any portion of an amount invoiced by BTP AUTOMATION, Customer shall notify BTP AUTOMATION within 30 days of receipt of any such invoice and may withhold payment of such disputed amount upon notification to BTP AUTOMATION; provided, however, that Customer will timely make payment of all undisputed amounts. The parties agree to use good faith efforts to resolve all disputed amounts expeditiously. In the event Customer fails to make payment to BTP AUTOMATION of any undisputed amounts due to BTP AUTOMATION within 30 days from the date of Customer's receipt of the applicable invoice or the date such amount became undisputed (whichever is longer), BTP AUTOMATION shall have the right (i) to apply a finance charge of 1.75% per month or the highest lawful rate, whichever is less, to all outstanding balances on undisputed amounts, with such charge to be included on the next monthly invoice; (ii) to suspend performance of the Services until such time as payment is received by BTP AUTOMATION, it being understood that such suspension of Services shall not be deemed a breach by BTP AUTOMATION of this Agreement; (iii) demand and receive from Customer additional funds to ensure Customer's payment for future, unperformed Services; and/or (iv) to immediately terminate this Agreement, and demand and receive payment from Customer for all amounts due and owing up to the date of termination. The fees and charges listed in the applicable SOW do not include taxes, duties or other assessments. Customer will be responsible for and will reimburse BTP AUTOMATION for all taxes or similar charges that are related to the Services that BTP AUTOMATION is providing to Customer under this Agreement or to payments made by Customer to BTP AUTOMATION for such services under this Agreement, other than taxes imposed on the net income of BTP AUTOMATION.

The Term of these Terms and Conditions shall be coterminous with the applicable SOW agreement between the parties.

5.1 Termination for Default. Should either BTP AUTOMATION or Customer default in the performance of its obligations under this Agreement, the non-defaulting party shall give written notice to the other party, specifying in detail the nature of the default and, if such default is not remedied within 60 days from receipt of such notice, then the non-defaulting party shall have the right, at its option, either to suspend the performance of its obligations under this Agreement until such default is remedied or to terminate this Agreement upon written notice.

5.2 Termination for Insolvency. Should either BTP AUTOMATION or Customer (i) become unable to, or admit in writing its inability to, pay its debts generally as they become due; (ii) make a general assignment for the benefit of creditors; (iii) institute proceedings to be adjudicated a voluntary bankrupt entity; (iv) consent to the filing of a petition of bankruptcy against it; (v) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (vi) seek reorganization under any bankruptcy act; (vii) consent to the filing of a petition seeking such reorganization; or (viii) have a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all of such party's property or providing for the liquidation of such party's property or business affairs; then, in any such event, the other party, at its option, may terminate this Agreement effective immediately.

5.3 Effect of Termination
Upon the expiration or earlier termination of this Agreement, Customer shall (i) pay to BTP AUTOMATION all undisputed amounts earned by BTP AUTOMATION through the effective date of termination of this Agreement and (ii) discontinue any further use of the BTP AUTOMATION Product and destroy or return to BTP AUTOMATION any copies of any BTP AUTOMATION Property provided to Customer. Upon the expiration or earlier termination of this Agreement, BTP AUTOMATION agrees to disconnect any data feeds received from Customer or its third-party providers and promptly delete any and all information and data of Customer provided by Customer to, or otherwise possessed by, BTP AUTOMATION as a result of Customer's access to and use of the BTP AUTOMATION Product pursuant to this Agreement, in accordance with NIST 800-88 (Guidelines for Media Sanitation).
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BTP Automation represents and warrants the following:

6.1 All BTP AUTOMATION Property belongs to BTP AUTOMATION (or is licensed to BTP AUTOMATION). BTP AUTOMATION has the power and authority to provide such BTP AUTOMATION Property to Customer pursuant to this Agreement.

6.2 The BTP AUTOMATION Property shall not infringe the intellectual property rights of any third party; provided, however, that this warranty shall not apply to the extent that any such infringement arises from or relates to Customer's misuse of the BTP AUTOMATION Property.

6.3 BTP AUTOMATION will ensure that the Customer Materials will be accessed and used only by BTP AUTOMATION for providing to Customer the Services contemplated by this Agreement and for no other purpose.

6.3 BTP AUTOMATION will ensure that the Customer Materials will be accessed and used only by BTP AUTOMATION for providing to Customer the Services contemplated by this Agreement and for no other purpose.

6.5 Customer Representations and Warranties. Customer hereby represents and warrants the following:

a. All Customer Materials belong to the Customer (or are licensed to Customer) and Customer has the power and authority to provide BTP AUTOMATION access to such Customer Materials pursuant to this Agreement.
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b. The Customer Materials shall not infringe the intellectual property rights of any third party; provided, however, that this warranty shall not apply to the extent that any such infringement arises from or relates to BTP AUTOMATION's misuse of the Customer Materials.

c. Customer will ensure that the BTP AUTOMATION Property will be accessed and used only by Customer and no other third party and only in a proper and lawful manner for Customer's business purposes and for no purposes other than those for which the BTP AUTOMATION Property was designed and which are authorized hereunder;

d. Customer shall not directly or indirectly do any of the following: (A) access, use, sell, distribute, sublicense or commercially exploit any BTP AUTOMATION Property or any rights under this Agreement; (B) copy, modify or create derivative works or improvements of the BTP AUTOMATION Property; (C) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of any BTP AUTOMATION Property; (D) remove, obscure or alter any intellectual property right or confidentiality notices or legends appearing in or on any aspect of any BTP AUTOMATION Property; (E) access or use the BTP AUTOMATION Property in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law; or (F) access or use the BTP AUTOMATION Property for purposes of competitive analysis of the BTP AUTOMATION Property, the development, provision or use of a competing software service or product or any other purpose that is to BTP AUTOMATION's detriment or commercial disadvantage; and

e. Customer shall comply with all applicable federal, state, local, international, or other laws and regulations applicable to Customer’s performance of its obligations under this Agreement.

6.6 EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, IN RELATION TO THIS AGREEMENT OR, IN THE CASE OF BTP AUTOMATION, THE SERVICES OR BTP AUTOMATION PROPERTY PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.  WITHOUT LIMITING THE FOREGOING, BTP AUTOMATION MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR BTP AUTOMATION PROPERTY OR ANY PRODUCTS, INCLUDING BUT NOT LIMITED TO, THE BTP AUTOMATION PRODUCT, OR RESULTS OF THE USE THEREOF, WILL MEET THE CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE ACCURATE, COMPLETE, OR ERROR-FREE.  THE CUSTOMER ACKNOWLEDGES AND AGREES THAT BTP AUTOMATION IS NOT RESPONSIBLE FOR ANY CONNECTIVITY ERRORS OR ISSUES WITH ANY THIRD PARTY.

6.6 Warranty disclaimer

EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THE AGREEMENT, CUSTOMER ACKNOWLEDGES THAT BTP AUTOMATION SERVICES ARE PROVIDED 'AS IS' WITHOUT WARRANTY OF ANY KIND, AND BTP AUTOMATION EXPRESSLY DISCLAIMS TO THE EXTENT PERMITTED BY LAW ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY BY ANY TERRITORY OR JURISDICTION, WITH RESPECT TO BTP AUTOMATION SERVICES OR SOFTWARE ASSOCIATED THEREWITH, OR THE DATA DERIVED FROM ANY SERVICES, AND ANY COMPONENTS THEREOF, AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON INFRINGEMENT.

6.7 Limitation of Liability

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES RESULTING FROM LOST REVENUES, LOSS OF PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR RELATING TO THE OBLIGATIONS HEREUNDER, WHETHER IN AN ACTION BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTY HAS BEEN ABTP AUTOMATIONSED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE THAT THE TOTAL DAMAGES THAT CAN BE AWARDED IN ANY CLAIM, LAWSUIT, ARBITRATION OR LITIGATION ARISING OUT OF ANY AND ALL CAUSES OF ACTION WHICH MAY BE ALLEGED BY ONE PARTY RELATING TO THE OTHER’S OBLIGATIONS HEREUNDER (OTHER THAN ANY CLAIM FOR UNPAID FEES AND EXPENSES) SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO BTP AUTOMATION IN THE PRECEDING 12 MONTHS PURSUANT TO THE TERMS OF THIS AGREEMENT.

7.1 Each of BTP AUTOMATION and Customer shall regard and preserve as confidential the terms of this Agreement. In addition, each party (such party, the "Recipient") agrees that during the term of this Agreement and at all times thereafter it shall not commercialize or disclose Confidential Information (as defined below) of the other party (such party, the "Discloser") to any person or entity, except to its own employees, contractors, officers, directors, affiliates, agents and representatives (collectively, the "Representatives") having a need to know. Each party agrees to its respective Representatives of their obligations of confidentiality hereunder and requires the same to keep such information confidential. Recipient shall use at least the same degree of care in safeguarding Discloser's Confidential Information as it uses in safeguarding its own Confidential Information, but in no event shall Recipient use less than reasonable care. For purposes of this Agreement, "Confidential Information" shall mean all information and documents that Discloser discloses to Recipient and either notify the Recipient should be considered as confidential or which a reasonable person would consider confidential based on the circumstances of the disclosure, industry practice, or the fundamental nature of the information or document. With respect to Customer, Confidential Information shall include, but not be limited to, all Customer Materials. With respect to BTP AUTOMATION, Confidential Information shall include, but not be limited to, all BTP AUTOMATION Property.

7.2 Confidential Information does not include information that (i) becomes generally available to the public other than as a result of disclosure by the Recipient or anyone to whom the Recipient transmits the information; (ii) was known by the Recipient on a non-confidential basis prior to its disclosure to the Recipient by the Discloser; or (iii) becomes available to the Recipient on a non-confidential basis from a source other than the Discloser which source is not bound by a confidentiality agreement with the Discloser.

7.3 Notwithstanding anything in this Agreement to the contrary, the Recipient may disclose Confidential Information of the Discloser pursuant to the requirement or request of a governmental agency or a subpoena, order or other legal process or requirement of law, or in defense of any claims asserted against it, so long as it shall (i) first notify the Discloser of such request, requirement or proposal for use in defense so that the Discloser may seek an appropriate protective order or other assurance of confidential treatment for the Confidential Information being sought to be disclosed; (ii) furnish only such portion of the Confidential Information as the Recipient has been advised by the opinion of legal counsel that it is legally required to disclose; and (iii) cooperate with the Discloser in any efforts to obtain a protective order or other reliable assurance that confidential treatment shall be accorded to the portion of the Confidential Information that is required to be disclosed. Each party agrees that in addition to any legal relief to which it may be entitled in the event of the other party's violation of this Section, it shall also be entitled to seek equitable relief, including such injunctive relief as may be necessary to protect its interest.
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8.1 General Indemnification.
BTP AUTOMATION and Customer (each, an “Indemnifying Party”) will each defend, indemnify, and hold the other and the other’s officers, directors, agents, and employees (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) harmless from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, or judgments (collectively “Claims”), including reasonable attorneys’ fees, which may be suffered by, accrued against, charged to, or recoverable from any Indemnified Party, by reason of any Claim brought against an Indemnified Party by a third party arising out of or relating to: (i) the gross negligence or willful misconduct of the Indemnifying Party or (ii) breaches of any warranty, representation or covenant made under this Agreement; provided, however, neither party shall be indemnified hereunder for any Claims resulting from its sole negligence or willful misconduct.

8.2 Indemnification Procedures.
In order to be indemnified under this Agreement, the Indemnified Party must promptly provide the Indemnified Party with written notice of any claim that the Indemnified Party believes falls within the scope of indemnification. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that in all cases the Indemnifying Party shall control such defense and all negotiations relative to the settlement of any such claim and, further, that any settlement intended to bind the Indemnified Party shall not be final without the Indemnified Party’s written consent, which consent shall not be unreasonably withheld.
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Nothing contained herein shall be construed to create any partnership or joint venture between BTP AUTOMATION and Customer.

9.1 Employee Non-solicitation.
Customer agrees that during the term of this Agreement and for a period of 1 year thereafter (the "Non-Solicitation Period"), Customer will not, directly or indirectly, unless otherwise agreed to by BTP AUTOMATION in writing, solicit, recruit, engage, employ or otherwise retain any employee of BTP AUTOMATION (in any capacity on behalf of itself or another entity) that Customer came in personal contact with as a result of the parties' relationship contemplated by this Agreement, or cause, encourage, assist or facilitate the employment, recruitment or solicitation of any such BTP AUTOMATION employee by any third party, including, without limitation, by furnishing the name and/or contact information of such BTP AUTOMATION employee to such third party. During the Non-Solicitation Period, if the Customer violates the provisions of this Section, then the Customer will pay to BTP AUTOMATION, as liquidated damages, an amount equivalent to 50% of such BTP AUTOMATION employee's starting annual salary with his or her new employer. Such liquidated damages shall be paid by the Customer to BTP AUTOMATION within 30 days following the date upon which the BTP AUTOMATION employee begins his or her new employment relationship with his or her new employer. This Section shall not restrict the right of Customer to solicit employment or recruit generally in the media and shall not prohibit Customer from hiring an employee of BTP AUTOMATION who answers any advertisement or who otherwise voluntarily applies for hire by Customer without having been initially personally solicited or recruited by Customer. The restriction contained in this Section shall survive the expiration or termination of this Agreement.

9.2 All notices required to be given under this Agreement must be in writing and delivered to the address of the applicable party set forth below (unless and until written notice is given by the applicable party to the other party of another address). Such notices may be delivered personally, by nationally recognized overnight courier service (e.g., United Parcel Service, FedEx, etc., or the Express Mail Service maintained by the United States Postal Service) or by U.S. certified or registered mail and shall be considered as having been validly given by one party to the other: (i) on the date of delivery, if delivered personally; (ii) on the next day after delivery to the nationally recognized overnight courier service, if delivered by a nationally recognized courier service; or (c) on the date of the party’s receipt, if delivered by U.S. certified or registered mail, postage prepaid with return receipt requested:

BTP Automation
Attention: Bruce Yoxsimer/CEO
80470 Torreon Way, La Quinta CA 92253

9.3 Force Majeure
Neither BTP AUTOMATION nor Customer nor any of their affiliated companies, nor any representatives or employees of any of their affiliated companies, shall be liable to the other for any delay in performing or failure to perform any of its obligations hereunder if and to the extent that such delay or failure to perform is due to any cause beyond its control which could not have been reasonably foreseen and avoided by the exercise of due care and diligence consistent with the exercise of reasonable business judgment, including acts of God, fire, flood, explosion, wars, terrorism, riots, civil disturbances, and strikes, or other work stoppages. If the said party is so delayed or unable to fulfill its obligations as a result thereof, in whole or in part, such party shall promptly notify the other party thereof in writing, explaining the reason for such delay or inability to perform. The suspension of performance shall be of no greater scope and no longer duration than is reasonably required, and the non-performing party shall use reasonable efforts to remedy its inability to perform.