TERMS AND CONDITIONS

This agreement for Services to be performed (“Agreement”) is by and between:

Service Provider: Commenco, LLC, with a mailing address of 4901 Bristol Ave, Kansas City, MO (“Commenco”), and

Customer: [Customer Company Name] (“Customer”).

In consideration of the mutual promises and agreements contained herein, the Customer agrees to hire Commenco to perform and carry out the work summarized in the attached Statement of Work, subject to the Terms and Conditions available at https://commenco.com/terms-and-conditions/ (the “Terms and Conditions”), which are hereby incorporated by reference into this Agreement. The Customer is of the opinion that Commenco has the necessary qualifications, experience, and abilities to provide services, and Commenco is agreeable to providing such services.

Section 1. APPLICABILITY

1.1 These terms and conditions (“Terms and Conditions”) apply to service contracts whereby Commenco will provide to Customer either (1) support or other services under a Commenco service agreement (“Service Agreement”), or (2) installation services under a Commenco installation agreement (“Installation Agreement”), or (3) maintenance services under a Commenco maintenance agreement (“Maintenance Agreement”).

Section 2. DEFINITIONS AND INTERPRETATION

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

“Agreement” means these Terms and Conditions; the Service Agreement, Installation Agreement and/or Maintenance Agreement, as applicable; the Statement(s) of Work and/or any other attachments hereto describing the work to be performed; and the Third-Party Terms (as defined in Section 22), as applicable.
“Equipment” means the equipment that is specified in the attachments or is subsequently added to this Agreement.
“Technician” is a Commenco employee, representative or agent dispatched in response to a Service Call who is not a Tower Person.
“Tower Person” is a Commenco employee, representative or agent dispatched in response to a Service Call who specializes in Services required to a tower. A Tower Person is only available during daylight hours and weather permitting, and notwithstanding anything else in this Agreement, will be responsive as soon as reasonably available but without any guarantees. A Tower Person is only required to climb up to five hundred (500) feet “Project Manager” is a Commenco employee, representative or agent responsible for planning, organizing, and overseeing the Services described in this Agreement or in a more detailed statement of work or other document attached as Exhibit A to this Agreement.
“Force Majeure Event” means facts or circumstances beyond a party’s control, such as fire, severe weather, flood, accident, labor trouble, material shortages, equipment failure, civil disturbance, epidemic or pandemic, act of government, or acts of God.
“Services” means those installation, maintenance, support, training, and other services described in this Agreement.
“Statement of Work” means the agreed upon services outlined in Exhibit. “Change Order” means a mutually agreed upon amendment to the Agreement or Statement of Work.
“Service Call” means a request from the Customer to perform Services either in-person or virtually as outlined in the existing Statement of Work in Exhibit A of this Agreement.

Section 3. ACCEPTANCE

Customer accepts these Terms and Conditions and agrees to pay the prices set forth in the Agreement. This Agreement becomes binding only when accepted in writing by Commenco. The term of this Agreement begins on the “Start Date” indicated in this Agreement.

Section 4. SCOPE OF SERVICES

4.1 Commenco will provide the Services described in this Agreement or in a more detailed statement of work or other document attached as Exhibit A to this Agreement. At Customer’s request, Commenco may also provide additional services at Commenco’s then applicable rates for the services.

4.2 If Commenco is providing Services for Equipment, (a) Commenco parts or parts of equal quality will be used; (b) the Equipment will be serviced at levels set forth in the manufacturer’s product manuals; and (c) routine service procedures that are prescribed by Commenco will be followed.

4.3 If Customer purchases from Commenco additional equipment that becomes part of the same system as the initial Equipment, the additional equipment may be added to this Agreement and will be billed at the applicable rates after the warranty for that additional equipment expires.

4.4 All Equipment must be in good working order on the Start Date or when additional equipment is added to the Agreement. Upon reasonable request by Commenco, Customer will provide a complete serial and model number list of the Equipment. Customer must promptly notify Commenco in writing when any Equipment is lost, damaged, stolen or taken out of service. Customer’s obligation to pay Service fees for this Equipment will terminate at the end of the month in which Commenco receives the written notice

4.5 Customer must specifically identify any Equipment that is labeled intrinsically safe for use in hazardous environments.

4.6 If Equipment cannot, in Commenco’s reasonable opinion, be properly or economically serviced for any reason, Commenco may (a) modify the scope of Services related to that Equipment, (b) remove that Equipment from the Agreement, or (c) increase the price to Service that Equipment.

4.7 Customer must promptly notify Commenco of any Equipment failure. Commenco will respond to Customer’s notification in a manner consistent with the level of Service purchased as indicated in this Agreement.

Section 5. EXCLUDED SERVICES

5.1 Service excludes the repair or replacement of Equipment that has become defective or damaged from (a) use in other than the normal, customary, intended, and authorized manner, (b) use not in compliance with applicable industry standards, (c) excessive wear and tear, or (d) accident, damage from liquids, power surges, neglect, acts of God or other force majeure events.

5.2 Unless specifically included in this Agreement, Service excludes (a) items that are consumed in the normal operation of the Equipment, such as batteries or magnetic tapes, (b) upgrading or reprogramming Equipment, (c) accessories, such as belt clips, battery chargers, custom or special products, modified units, or software, and (d) repair or maintenance of any transmission line, antenna, microwave equipment, tower or tower lighting, duplexer, combiner, or multicoupler. Commenco has no obligations for any transmission medium, such as telephone lines, computer networks, the internet or other data platforms, or for Equipment malfunction caused by the transmission medium.

Section 6. TIME AND PLACE OF SERVICE

6.1 General. Service will be provided at the location specified in this Agreement. When Commenco performs service at Customer’s location, Customer will provide Commenco, at no charge, a non-hazardous work environment with adequate shelter, conditioned space, light, and power and with full and free access to the Equipment. Waivers of liability from Commenco or its subcontractors will not be imposed as a site access requirement. Customer will provide all information pertaining to the hardware and software elements of any system with which the Equipment is interfacing so that Commenco may perform its Services. Unless otherwise stated in this Agreement, the hours of Service will be 8:30 a.m. to 4:30 p.m., local time, excluding weekends and holidays. Unless otherwise stated in this Agreement, the price for the Services exclude any charges or expenses associated with unusual access requirements; if these charges or expenses are reasonably incurred by Commenco in rendering the Services, Customer agrees to reimburse Commenco for those charges and expenses.

6.2 Delays. Once a Technician arrives at a site, delays due to restricted access to the site, assets and/or equipment which require the Technician to remain at the site longer than expected based on the Services to be performed will result in the Technician escalating the matter to the Commenco Project Manager, who in turn will inform the Customer point of contact. In the event immediate resolution to the delay cannot be reached with Customer, the delay will result in a charge of $163 per Technician per hour (billed in ½ hour increments) for any downtime. Such delays will be documented by the Technician within the data collection process.

6.3 Cancellations. Unless otherwise agreed in the Statement of Work, Commenco will charge Customer for cancellations as follows:

a) if a Statement of Work is canceled greater than three (3) calendar days prior to the Start Date, no cancellation charge applies;

b) if a Statement of Work is canceled fewer than 72 hours prior to the Start Date, a $1,300.00 charge will apply for each Technician assigned to begin the Project on the Start Date; or

c) if a Statement of Work is canceled after the Start Date, charges will apply for all Technicians assigned for the expected Services to be performed on the two (2) days following the cancellation date.

Cancellation of services also assumes Commenco may require a charge for all materials procured which are unable to be returned. Further, if Commenco is able to return any materials after cancellation of Services, a 15% restocking fee may apply for administrative services.

6.4 Revisits. If Commenco must return to a site previously visited to complete additional work which was unable to be performed during the initial visit, the return visit will be priced based as a new Service Call. The return visit may be secured as a new Statement of Work or a Change Order depending on the circumstances.

6.5 Access & Scheduling. Pricing assumes Commenco is granted reasonable geographic and scheduling control for all Projects, allowing it to develop efficient Project completion schedules with minimized unproductive time.

6.6 Customer Contact. Customer will provide Commenco with designated points of contact (list of names, phone numbers, and/or email addresses) that will be available twenty-four (24) hours per day, seven (7) days per week, and an escalation procedure to enable Customer’s Contact or other personnel as designated by Customer to maintain communication, as needed, with Commenco.

Section 7. REPRESENTATIONS AND WARRANTIES

7.1 General Representations and Warranties. Each party hereby represents and warrants to the other party that:

(i) it is duly organized, validly existing and in good standing under the laws of the state of its formation;

(ii) it has all necessary power and authority to execute, deliver and perform its obligations under this Agreement;

(iii) its execution, delivery and performance of this Agreement have been duly authorized by all necessary action on its part;

(iv) this Agreement has been duly and validly executed and delivered by it and constitutes its legal, valid and binding obligation enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or moratorium or other similar laws relating to the enforcement of creditors’ rights generally and by general equitable principles;

(v) it is not in violation of any applicable law, or any judgment entered by any federal, state, local or other Governmental Authority, which violations, individually or in the aggregate, would adversely affect its performance of any obligations under this Agreement;

(vi) there are no legal or arbitration proceedings or any proceeding by or before any court or other governmental authority, now pending or (to its best knowledge) threatened against it which, if adversely determined, could have a material adverse effect upon its financial condition, operations, prospects, or business, as a whole, or its ability to perform under this Agreement;

(vii) no authorization, approval, exemption, or consent of or by any person, entity, or governmental entity is required by it in connection with the execution, delivery, and performance of this Agreement; and

(viii) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms and provisions hereof by it will not conflict with or result in a material breach of, or require any consent under, any of its constitutive documents, or any applicable law, or any agreement or instrument to which it is a party or by which it is bound or to which it is subject, or constitute a material default under any such agreement or instrument.

7.2 Additional Representations and Warranties of Commenco. Commenco hereby represents and warrants to Customer that:

(i) Commenco has (either directly or through its subcontractors) all the required authority, ability, skill, experience and capacity necessary to perform the Services and diligently do so in a timely and professional manner, utilizing sound engineering principles, project management procedures, and supervisory procedures, all in accordance with applicable laws;

(ii) Commenco has (either directly or through its subcontractors) the experience and skills necessary to determine, and Commenco has reasonably determined, that Commenco can perform the Services for the prices and fees set forth in this Agreement; and

(iii) the governmental approvals required to be obtained by Commenco either have been obtained by Commenco and are in full force and effect on the date hereof or will be obtained by Commenco and will be in full force and effect on or prior to the date on which they are required, under applicable law, to be in full force and effect, so as to permit Commenco to commence and prosecute the Services in accordance with this Agreement.

7.3 Commenco Warranties. Commenco hereby warrants that all Services provided under this Agreement will comply with all applicable laws and performed in a professional and workmanlike manner, in accordance with industry standards. The warranty provided hereunder shall be voided upon any alteration, or attempted alteration, to the Products after their installation. The sole remedy available for breach of foregoing warranty is the re-performance of the work necessary to reinstall a product that is improperly installed or altered. Except as expressly provided herein, Commenco makes no warranties of any kind, express or implied, with respect to the products or the Services and specifically disclaims the implied warranties of merchantability and of fitness for a particular purpose. Commenco expressly disclaims any obligation or liability for the loss of time, inconveniences, lost profits, commercial loss or any other indirect, consequential, special or incidental damages regardless of whether it knew or should have known of the possibility of such damage. Commenco shall not be liable for any warranty claim arising from the failure to adequately maintain the products in accordance with written specifications after installation or for any misuse, or abuse, or alteration.

Section 8. INVOICING AND PAYMENT

8.1 General. Customer affirms that a purchase order or notice to proceed is not required for the duration of this Agreement and that it will appropriate funds each year through the contract end date. Unless alternative payment terms are stated in this Agreement, Commenco will invoice Customer in advance for each payment period. All other charges will be billed according to the terms of this Agreement. The Customer will pay all invoices as received from Commenco. At the time of execution of this Agreement, the Customer will provide all necessary reference information to include on invoices for payment in accordance with this Agreement.

8.2 Customer will reimburse Commenco for all property taxes, sales and use taxes, excise taxes, and other taxes or assessments that are levied as a result of Services rendered under this Agreement (except income, profit, and franchise taxes of Commenco) by any governmental entity. The Customer will pay all invoices as received from Commenco. At the time of execution of this Agreement, the Customer will provide all necessary reference information to include on invoices for payment in accordance with this Agreement.

8.3 Pricing. Pricing provided in the Statement of Work includes all services and/or materials to be provided by Commenco. Any additional materials or services required, outside the original specification in the Statement of Work, may result in additional charges and will be quoted as a Change Order or a new Statement of Work. Sales taxes, shipping charges, additional or excessive travel are not included and will be added as applicable.

8.4 Change Order Process. In the event of a material change to an existing Statement of Work which necessitates a pricing and/or Services adjustment, Commenco will submit a written change order for signed approval (a “Change Order”). Commenco shall not invoice for extra charges (beyond those included in the Statement of Work) until authorized by a mutually agreed upon Change Order. Customer shall authorize Change Orders in a timely manner to ensure Statement of Work schedules are not materially altered.

8.5 Payment Terms. Unless otherwise agreed in a Statement of Work or as otherwise provided for in this Agreement, invoices are due payable in full within 30 days of the date of invoice.

8.6 Taxes. Customer will reimburse Commenco for all property taxes, sales and use taxes, excise taxes, and other taxes or assessments that are levied as a result of the Services rendered under this Agreement (except income, profit, and franchise taxes of Commenco) by any governmental entity.

8.7 Interest on Late Payments. Interest payable on any overdue amounts under this Agreement is charged at a rate of 18.00% per annum or at the maximum rate enforceable under applicable legislation, whichever is lower.

8.8 Currency. Except as otherwise provided in this Agreement, all monetary amounts referred to in this agreement are in U.S. dollars.

8.9 Renewal and Pricing Adjustments. AGREEMENTS WILL RENEW, FOR AN ADDITIONAL ONE (1) YEAR TERM, ON EVERY ANNIVERSARY OF THE START DATE UNLESS SPECIFICALLY STATED OTHERWISE IN THE AGREEMENT OR ONE PARTY NOTIFIES THE OTHER IN WRITING OF ITS INTENTION TO DISCONTINUE THE AGREEMENT NOT LESS THAN THIRTY (30) DAYS PRIOR TO THE ANNIVERSARY DATE.

At the anniversary date, Commenco may adjust the price of the Services to reflect its current rates. At the end of the first year of the Agreement and each year thereafter, a CPI percentage change calculation shall be performed. Commenco shall have the right use the resultant percentage metric as a price escalatory for the Agreement. The Consumer Price Index-Midwest Region-All Urban Consumers (CPI-Midwest Region).

Section 9. DEFAULT/TERMINATION

9.1 Events of Default. Any of the following occurrences or events, by or against Commenco and by or against Customer, shall constitute a default under this Agreement:

(i) a material breach of any of the terms, conditions, representations, warranties, or guarantees expressed in this Agreement; or

(ii) the filing of a voluntary petition in bankruptcy, confession of insolvency, or any assignment for the benefit of creditors.

9.2 Termination for Default. If either party defaults under this Agreement, the other party may give to the defaulting party a written and detailed notice of the default. The defaulting party will have thirty (30) days thereafter to provide a written plan to cure the default that is acceptable to the other party and begin implementing the cure plan immediately after plan approval. If the defaulting party fails to provide or implement the cure plan, then the other party, in addition to any other rights available to it under law, may immediately terminate this Agreement effective upon giving a written notice of termination to the defaulting party.

9.3 Obligation. Any termination of this Agreement will not relieve either party of obligations previously incurred pursuant to this Agreement, including payments which may be due and owing at, or for Services provided prior to, the time of termination. All sums owed by Customer to Commenco will become due and payable immediately upon termination of this Agreement. Upon the effective date of termination, Commenco will have no further obligation to provide Services.

9.4 Termination for Convenience. Either party may terminate this Agreement upon ninety (90) calendar days written notice. Notwithstanding anything to the contrary, this Agreement may not be terminated pursuant to this Section 9.4 during the initial six (6) months of this Agreement.

If the Customer terminates this Agreement before the end of the Term, for any reason other than Commenco default, then the Customer will pay to Commenco an early termination fee equal to the discount applied to service payments for the original term.

Section 10. PROPRIETARY INFORMATION; CONFIDENTIALITY; INTELLECTUAL PROPERTY RIGHTS

10.1 Confidentiality. From the Start Date through the third anniversary of the termination hereof, each party agrees, and shall cause its respective directors, officers, employees, consultants, advisors and affiliates, to treat and hold as confidential (and not disclose or provide access to any person) all business, technical, financial or other information of the other disclosing party (“Confidential Information”) including, without limitation, information relating to trade secrets, patent applications, product development, Customer lists, pricing and marketing plans, policies and strategies, training and training materials, details of Customer and consultant contracts, business acquisition plans and new personnel acquisition plans. Each party further agrees to use (and not reverse engineer) the Confidential Information of the disclosing party solely for the purpose of advancing the business relationship contemplated under this Agreement as expressly permitted or directed by the disclosing party.

10.2 Exceptions. Notwithstanding the foregoing, Confidential Information shall not include:

a) information that is published or otherwise becomes available to the general public as part of the public domain without breach of this Agreement;

b) information received from a third party that does not involve a breach of the third party’s obligations to the disclosing party;

c) information that was properly in the receiving party’s possession without restrictions prior to the date of disclosure to the receiving party;

d) information that the receiving party is required by law or regulation to disclose; and

e) information that the receiving party establishes through written records was developed independently of Confidential Information furnished to it.

10.3 Intellectual Property. This Agreement does not grant directly or by implication, estoppel, or otherwise any right or license to or under any Commenco patent, copyright, trade secret, or other intellectual property, including any intellectual property created as a result of or related to the Equipment sold or Services performed under this Agreement.

Section 11. MATERIALS, TOOLS AND EQUIPMENT

All tools, equipment, dies, gauges, models, drawings or other materials paid for or furnished by Commenco for the purpose of this Agreement will be and remain the sole property of Commenco. Customer will (a) safeguard all such property while it is in Customer’s custody or control, (b) be liable for any loss or damage to such property, and (c) return it to Commenco upon request. Such property will be held by Customer for Commenco’s use without charge and may be removed from Customer’s premises by Commenco at any time without restriction.

Section 12. COVENANT NOT TO EMPLOY

During the term of this Agreement and continuing for a period of two (2) years thereafter, Customer will not hire, engage on contract, solicit the employment of, or recommend to any third party the employment of any employee of Commenco or its subcontractors without the prior written authorization of Commenco. This provision applies only to those employees of Commenco or its subcontractors who are responsible for rendering the Services under this Agreement. If this provision is found to be overly broad under applicable law, it will be modified as necessary to conform to applicable law.

Section 13. EXCLUSIVE TERMS AND CONDITIONS

Customer agrees to reference this Agreement on any purchase order issued in furtherance of this Agreement, however, an omission of the reference to this Agreement will not affect its applicability. In no event will either party be bound by any terms contained in a Customer purchase order, acknowledgement, or other writings unless the purchase order, acknowledgement, or other writing (a) specifically refers to this Agreement, (b) clearly indicates the intention of both parties to override and modify this Agreement, and (c) is signed by authorized representatives of both parties.

Section 14. LIMITATION OF LIABILITY

In no event will either Customer or Commenco be liable to the other for any indirect, consequential, incidental, special, or exemplary or punitive damages arising out of or in connection with this Agreement. This limitation shall not be applicable in the event of actual fraud or a breach of Article 10 of this Agreement. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT COMMENCO WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES, PROFITS OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT OR THE PERFORMANCE OF SERVICES BY COMMENCO PURSUANT TO THIS AGREEMENT. No action for contract breach or otherwise relating to the transactions contemplated by this Agreement may be brought more than one (1) year after the accrual of the cause of action, except for money due upon an open account. This limitation of liability will survive the expiration or termination of this Agreement and applies notwithstanding any contrary provision.

Section 15. NOTICE

All notices, requests, demands or other communications required or permitted by the terms of this Agreement will be given in writing and delivered to the parties at the addresses set forth in [ the cover page ] this Agreement, or to such other address as either party may from time to time notify the other, and will be deemed to be properly delivered (a) immediately upon being served personally, or (b) the following business day after being deposited with an overnight courier (fees prepaid and sent for next business day delivery).

Section 16. MUTUAL INDEMNIFICATION

16.1 By Commenco. Commenco shall defend, indemnify, and hold harmless Customer, its employees, agents, officers, directors, and shareholders (collectively, “Customer Indemnified Persons”) from and against any losses, liabilities, claims, proceedings, damages, fines, obligations, judgments, demands, costs and expenses, including, but not limited to, reasonable attorney’s’ fees incurred at all levels of proceedings, incurred by Customer Indemnified Persons and arising from third-party claims in respect of:

(i) any breach by Commenco of its obligations hereunder;

(ii) any negligent act or omission of Commenco, its directors, officers, employees, agents or contractors; or

(iii) any intentional misconduct of Commenco, its directors, officers, employees, agents, or contractors.

The provisions of this Section 16.1 shall survive the expiration or termination of this Agreement.

16.2 By the Customer. Customer shall defend, indemnify, and hold harmless Commenco, its employees, agents, officers, directors, and shareholders (collectively, “Commenco’s Indemnified Persons”) from and against any losses, liabilities, claims, proceedings, damages, fines, obligations, judgments, demands, costs and expenses, including, but not limited to, reasonable attorney’s fees incurred at all levels of proceedings, incurred by Commenco’s Indemnified Persons and arising from third party claims in respect of:

(i) any breach by Customer in its obligations hereunder;

(ii) any negligent act or omission of Customer, its directors, officers, employees, agents or contractors (other than Commenco); or

(iii) any intentional misconduct of Customer, its directors, officers, employees agents or contractors.

The provisions of this Section 16.2 shall survive the expiration or termination of this Agreement.

Section 17. INSURANCE

17.1 Commenco Insurance. During the term of this Agreement Commenco shall maintain its Employer’s Liability, Workman’s Compensation, Auto Coverage and General Liability insurance each with a minimum coverage of $1,000,000 each occurrence and an excess/umbrella coverage limit of $5,000,000 and, shall provide a certificate of insurance to Customer, naming Customer as additional insured on all applicable policies as evidenced by a certificate of insurance. Upon the request of Customer to support a specific Statement of Work, Commenco will secure additional insurance coverage via an insurance policy rider. Any costs associated with such a request will be invoiced by Commenco to Customer.

17.2 Subcontractor’s Insurance. Commenco shall cause any subcontractors to maintain workers’ compensation and other insurance consistent with this Agreement.

Section 18. FCC LICENSES AND OTHER AUTHORIZATIONS

If applicable, Customer is solely responsible for obtaining licenses or other authorizations required by the Federal Communications Commission or any other federal, state, or local government agency and for complying with all rules and regulations required by governmental agencies. Neither Commenco nor any of its employees is an agent or representative of Customer in any governmental matters.

Section 19. LOSS OR DAMAGE; FORCE MAJEURE

19.1 Risk of Loss. Equipment shipped by Commenco, Customer, or Third Party to Customer sites/facilities, the parties understand and agree that once the Equipment has been delivered to a Customer site and is under Customer’s physical control, Customer shall have the full responsibility for the care, custody and control of material and Equipment with respect to the Agreement (including all Equipment and materials used in connection therewith) and shall bear the risk of loss thereof.

19.2 Force Majeure. Each party shall be excused from performance and shall not be considered to be in default with respect to any obligation hereunder, except the obligation to pay money in a timely manner for Services actually performed or other liabilities actually incurred, if and to the extent that its failure of, or delay in, performance is due to a Force Majeure Event; provided, that:

(i) such party gives the other party written notice describing the particulars of the Force Majeure Event as soon as is reasonably practical;

(ii) the suspension of performance is of no greater scope and of no longer duration than is reasonably required by the Force Majeure event;

(iii) no obligations of the party that arose before the occurrence causing the suspension of performance shall be excused as a result of the occurrence; and

(iv) the party uses its best reasonable efforts to overcome or mitigate the effects of such occurrence; and when the party is able to resume performance of its obligations under this Agreement, such party shall give the other party written notice to that effect and shall promptly resume performance hereunder.

19.3 Segregation of Inventory. While the Equipment Products are in Commenco’s possession or control, Commenco shall:

(i) keep the Equipment Products separate and capable of identification as the property of Customer and make entries in its books and records showing the types and quantities of Equipment Products received and that the Products are held for the account of Customer;

(ii) not lien, mortgage, pledge or in any other manner permit the Equipment Products to be encumbered (and Commenco agrees to indemnify Customer and hold Customer harmless from any such encumbrances or taxes or claims against the inventory of Products);

(iii) keep the Equipment Products in a suitable place for storage; and

(iv) keep the Equipment Products insured in reasonable amounts at its own expense against fire, theft and such other normal business risks.

Section 20. DISPUTE RESOLUTION

20.1 General. THE PARTIES DESIRE TO AVOID AND SETTLE WITHOUT LITIGATION ANY DISPUTE, CONTROVERSY, OR CLAIM THAT MAY ARISE BETWEEN THEM OUT OF OR RELATING TO THIS AGREEMENT. IF ANY DISPUTE, CONTROVERSY, OR CLAIM BETWEEN THE PARTIES ARISES OUT OF THE INTERPRETATION OF OR PERFORMANCE UNDER THIS AGREEMENT, THE PARTIES AGREE TO REFRAIN FROM INITIATING ANY LEGAL OR OTHER PROCEEDINGS UNTIL ALL OF THE PROCEDURES SET FORTH IN THIS SECTION 20 HAVE BEEN EXHAUSTED.

20.2 Informal Resolution. Each party, through employees who have senior management responsibility over the subject matter management of this Agreement, shall first attempt to resolve amicably and informally any Dispute. A party shall initiate informal negotiations to resolve the Dispute by giving the other party written notice of such intent (“Request for Informal Dispute Resolution”). The Request for Informal Dispute Resolution shall (a) describe the Dispute and (b) propose the procedure for its amicable resolution, including, if appropriate, the hiring of consultants. Within fifteen (15) calendar days of the date of such Request for Informal Dispute Resolution, the parties shall attempt to resolve the Dispute amicably, and no party shall resort to any other means of dispute resolution for at least fifteen (15) calendar days after such Request for Informal Dispute Resolution has been delivered.

20.3 Resolution by Executives. If any Dispute is not resolved pursuant to Section 20.2, each party shall designate one or more executives (the “Executives”) to act on behalf of such party to negotiate to resolve the matter. At the earliest practical time, and in any event, no later than fifteen (15) calendar days after the conclusion of the process set forth in Section 20.2, the Executives of both parties shall meet in a mutually agreeable location or a virtual meeting. The Executives shall negotiate in good faith to resolve the Dispute, and any resolution shall be set forth in writing and signed by both parties. If no resolution is agreed upon within thirty (30) days following the Request for Informal Dispute Resolution, either party may proceed with any available legal remedies.

20.4 Injunctive Relief. Nothing in this Section 20 will preclude either party from seeking equitable relief or interim or provisional relief from a court of competent jurisdiction concerning a dispute if necessary to protect the interests of such party.

Section 21. GENERAL TERMS

21.1 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be conformed to prevailing law rather than voided, if possible, in order to achieve the intent of the parties and, in any event, the remaining provisions of this Agreement shall remain in full force and effect and shall be binding upon the parties hereto.

21.2 Waivers. Any waiver of the provisions of this Agreement must be in writing and shall not be implied by any usage of trade, course of dealing or course of performance. No exercise of any right or remedy by Customer or Commenco constitutes a waiver of any other right or remedy contained or provided by law. Any delay or failure of a party to exercise, or any partial exercise of, its rights and remedies under this Agreement shall not operate to limit or otherwise affect such rights or remedies. Any waiver of performance hereunder shall be limited to the specific performance waived and shall not, unless otherwise expressly stated in writing, constitute a continuous waiver or a waiver of future performance.

21.4 Subcontracting. Commenco may subcontract any of the Services, but subcontracting will not relieve Commenco of its duties under this Agreement.

21.5 Independent Services. Commenco and its subcontractors shall be independent contractors to Customer with respect to the Services, irrespective of whether such subcontractors are approved by Customer, and neither Commenco nor its subcontractors, nor the employees or agents of either, shall be deemed to be the employees, representatives or agents of Customer in connection with any matter relating to this Agreement. No provision of this Agreement shall be construed or represented as creating a partnership, trust, joint venture, fiduciary or any similar relationship between the Parties. Commenco shall be solely responsible for the employment, control and conduct of all persons in its employ, and Commenco shall make all withholdings and payments of all payroll taxes and similar obligations, including income tax, social security tax, unemployment tax and worker’s compensation taxes, for each of its employees and salespersons.

21.6 Assignment. Except as provided herein, neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, which consent will not be unreasonably withheld. Any attempted assignment, delegation, or transfer without the necessary consent will be void. Notwithstanding the foregoing, Commenco may assign this Agreement to any of its affiliates or its right to receive payment without the prior consent of Customer. In addition, in the event Commenco separates one or more of its businesses (each a “Separated Business”), whether by way of a sale, establishment of a joint venture, spin-oA or otherwise (each a “Separation Event”), Commenco may, without the prior written consent of Customer and at no additional cost to Commenco, assign this Agreement such that it will continue to benefit the Separated Business and its affiliates (and Commenco and its affiliates, to the extent applicable) following the Separation Event.

21.7 Post-Termination Services. If Commenco provides Services after the termination or expiration of this Agreement, the terms and conditions in effect at the time of the termination or expiration will apply to those Services and Customer agrees to pay for those services on a time and materials basis at Commenco’s then effective hourly rates.

21.8 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered part of the Agreement. The parties may execute this Agreement in writing, or by electronic signature, and any such electronic signature shall have the same legal effect as a handwritten signature for the purposes of validity, enforceability and admissibility. In addition, an electronic signature, a true and correct facsimile copy or computer image of this Agreement shall be treated as and shall have the same effect as an original signed copy of this document.

21.9 Remedies. Except as otherwise specifically provided herein, no remedy referred to in this Agreement is intended to be exclusive.

21.11 Construction. This Agreement is to be construed so as to effectuate the normal and reasonable expectations of a sophisticated buyer and seller of the Products and Services covered by this Agreement and shall not be construed either for or against either party. No provision of this Agreement shall be construed or interpreted for or against either party because such party drafted or caused its legal representative to draft the provision. The titles or headings of the various sections, articles and paragraphs hereof are intended solely for convenience and ease of reference and are not intended, and are not to be deemed for any purpose, to modify or explain or place any interpretation or construction upon any of the provisions of this Agreement.

21.12 No Third-Party Beneficiaries. This Agreement and each and every provision hereof are for the exclusive benefit of the parties hereto and not for the benefit of any third party other than any person or entity expressly entitled to indemnification under the terms hereof.

21.13 Further Assurances. Each party agrees to execute and deliver all further instruments, estoppels, consents, waivers and other documents, and take all further action, as may be reasonably necessary to complete performance by the parties hereunder and to effectuate the purposes and intent of this Agreement.

21.14 Amendments. No change, amendment or modification of this Agreement shall be valid or binding upon the parties unless such change, amendment or modification shall be in writing and duly executed by both parties.

21.15 Conflicting Provisions. In the event of any conflict between this document and any cover page or Exhibit hereto, the terms and provisions of this document, as amended from time to time, shall control; provided, however, a later dated Statement of Work shall control. In the event of any conflict among the Exhibits, the Exhibit of the latest date mutually agreed to by the parties shall control.

Section 22. THIRD-PARTY TERMS

Customer acknowledges that (a) Commenco may be a party to or bound by one or more agreements with third parties with respect to certain Products or Services purchased by or furnished to Customer under this Agreement, and (b) such agreements may include terms and conditions intended to apply to the end recipient or user of such Products or Services (the “Third-Party Terms”). Accordingly, to the extent any such Third-Party Terms would reasonably be expected to apply to Customer, Customer agrees to abide by such Third-Party Terms, provided that such Third-Party terms are disclosed in writing by Commenco to Customer (including without limitation as Exhibit B attached hereto or as an attachment to the Statement of Work, or as disclosed in writing to Customer after the Start Date), and any such Third-Party Terms shall be automatically incorporated herein by reference, mutatis mutandis, and form a part of this Agreement. Furthermore, Customer shall defend, indemnify, and hold harmless Commenco’s Indemnified Persons from and against any losses, liabilities, claims, proceedings, damages, fines, obligations, judgments, demands, costs and expenses, including, but not limited to, reasonable attorney’s fees incurred at all levels of proceedings, incurred by Commenco’s Indemnified Persons as a result of any breach by Customer of applicable Third-Party Terms.

Section 23. ENTIRE AGREEMENT

This Agreement supersedes all prior and concurrent agreements and understandings between the parties, whether written or oral, related to the Services, and there are no agreements or representations concerning the subject matter of this Agreement except for those expressed herein. For clarity, the Statement of Work and all other exhibits and attachments hereto are hereby incorporated into, and form a part of, this Agreement.